Greene v. Safeway Stores Inc.

• Decision Date: 28 April 2000
• Docket Number: Nos. 99-1215,s. 99-1215
• Parties: (10th Cir. 2000) ROBERT D. GREENE, Plaintiff - Appellee and Cross-Appellant, v. SAFEWAY STORES, INC., Defendant - Appellant and Cross-Appellee. & 99-1228
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1237

210 F.3d 1237 (10th Cir. 2000)

ROBERT D. GREENE, Plaintiff - Appellee and Cross-Appellant, v. SAFEWAY STORES, INC., Defendant - Appellant and Cross-Appellee.

Nos. 99-1215 & 99-1228

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

April 28, 2000

Appeal from the United States District Court for the District of Colorado (D.C. No. 94-N-691) [Copyrighted Material Omitted] Gregory A. Eurich, Holland & Hart LLP, Denver, Colorado (Marcy G. Glenn and Megan C. Bertron of Holland & Hart LLP, Denver, Colorado with him on the brief), for Defendant-Appellant and Cross-Appellee.

Thomas L. Roberts, Roberts & Zboyan, P.C., Denver, Colorado (JoAnne M. Zboyan of Roberts & Zboyan, P.C., Denver, Colorado; W. Randolph Barnhart, and Angela L. Ekker of Branney, Hillyard & Barnhart, Englewood, Colorado with him on the brief), for Plaintiff-Appellee and Cross-Appellant.

Before BRISCOE, McWILLIAMS, and ALARCN,^* Circuit Judges.

ALARCN, Circuit Judge.

Safeway Stores, Inc. ("Safeway"), appeals from the July 1997 judgment entered following a jury's verdict in favor of Robert Greene ("Greene"), a former Safeway employee. The jury found that Safeway engaged in willful discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. ("ADEA"), and awarded Greene $6.7 million in damages.

The first trial in this matter commenced on February 13, 1995. The district court granted Safeway's motion for judgment as a matter of law at the close of Greene's case-in-chief. On October 15, 1996, a panel of this court reversed and remanded the case for a new trial. This court held that the evidence presented was legally sufficient to support an inference of age discrimination. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 564 (10th Cir. 1996) ["Greene I"]. The retrial of the action began on June 2, 1997 ["Greene II"]. The district court denied Safeway's motions for judgment as a matter of law at the close of Greene's case-in-chief, at the close of all evidence, and after the jury found in favor of Greene.

Safeway appeals the denial of its motions for judgment as a matter of law. Because the evidence presented at the second trial was not substantially different from that presented at the first trial, we affirm. Safeway also appeals from the judgment awarding Greene $4.4 million for unrealized stock option appreciation. We conclude that the unrealized appreciation was compensable under the ADEA.

In his cross-appeal, Greene appeals from the district court's decision that the $4.4 million in unrealized stock option appreciation was not subject to doubling under the ADEA's provision for liquidated damages. We reject this contention and hold that the unrealized stock option appreciation was not an amount owing at the time of trial. We also uphold the district court's decision to deny prejudgment interest because an award of liquidated damages precludes an award of prejudgment interest.

I

Greene was born November 7, 1940. He went to work for Safeway as a courtesy clerk in 1957. In 1961, he became a produce manager at a Safeway store in Denver, Colorado. He became a store manager in 1966. Ten years later, he became a retail operations manager in Little Rock, Arkansas. Two years later, he returned to Denver as a retail operations manager. Five years later, Greene became a marketing operations manager in Houston. In 1986, Greene was appointed to the post of manager of Safeway's Denver Division.

On June 10, 1993, Greene was summoned to a meeting with Safeway's president, Steven Burd, and Safeway's executive vice president, Kenneth Oder. Burd fired Greene at that meeting. Greene was then 52. A document introduced at trial entitled "Senior Executive Supplemental Benefit Plan" showed that Greene's interest in Safeway's supplemental executive pension plan would have vested a little over two years later, when he turned 55. Greene testified at the Greene II trial that Burd said that he was "assembling his new team and unfortunately, he didn't have a place for me on his team." Burd testified that he told Greene at the meeting that "he didn't fit in with the new management style." Greene testified that Burd told him at the meeting that Safeway would "give [him] the chance to resign if [he thought] that would be better."

The specific reasons Burd gave for firing Greene were that Greene was a poor merchandiser, that sales had flattened or declined at established stores in the Denver Division, that Greene was pessimistic about competition with another supermarket chain in Denver, and that Greene was intimidating to the employees he supervised. Burd, Oder, and Bob Kinnie, who had been Greene's direct supervisor, each testified at trial that he had not mentioned these concerns to Greene prior to his termination on June 10, 1993. Also in evidence at trial were three internal memoranda that praised Greene's work and the performance of the Denver Division. The memoranda were dated November 5, 1992, February 8, 1993, and April 6, 1993.

John King, a marketing operations manager from Safeway's Seattle Division, replaced Greene as Denver Division Manager. King was 57 at the time. Denita Renfrew, a Denver Division employee, testified that King "seemed shocked" by his appointment to the position of Denver Division Manager. Renfrew testified that King said "he was very happy living in Seattle," that "he said he wanted to retire in Seattle," and that he indicated that he expected to be with the Denver Division for "a short period." King has remained with the Denver Division throughout the pendency of this litigation.

Greene elicited testimony and introduced documents showing that eight other executives left Safeway in the months leading up to and following Greene's termination. All eight men were in their fifties or sixties. Younger people succeeded all eight men.

Greene originally filed this action on March 24, 1994. The case proceeded to trial for the first time on February 13, 1995. At the close of Greene's case-in-chief, Safeway moved for judgment as a matter of law on Greene's ADEA claim. The district court granted Safeway's motion. This court reversed and remanded for a new trial. This appeal arises out of the judgment entered following the second trial in this matter. Safeway filed a timely notice of appeal. This court has jurisdiction pursuant to 28 U.S.C. 1291.

II

Safeway contends the district court erred in denying its motions for judgment as a matter of law. This court reviews de novo a denial of a motion for judgment as a matter of law. See Townsend v. Daniel, Mann, Johnson & Mendenhall, 196 F.3d 1140, 1144 (10th Cir. 1999). The district court reasoned that judgment as a matter of law was unwarranted because, "[a]s a matter of logic and law of the case, the appellate court decision means, at a minimum, that, unless the plaintiff's second presentation fell short of the presentation at the first trial, plaintiff's case should get to the jury."

"The law of the case 'doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998) (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quoting Arizona v. California, 460 U.S. 605, 618 (1983))). "Accordingly, 'when a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal.'" Id. (quoting Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995)). "This doctrine is 'based on sound public policy that litigation should come to an end and is designed to bring about a quick resolution of disputes by preventing continued re-argument of issues already decided.'" Id. (quoting Gage v. General Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986) (citations omitted)). The rule "also serves the purposes of discouraging panel shopping at the court of appeals level." Monsisvais, 946 F.2d at 116.

This court has recognized, however, that the law of the case doctrine is not an "inexorable command." Alvarez, 142 F.3d at 1247 (quoting White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967)). This court "will depart from the law of the case doctrine in three exceptionally narrow circumstances:

(1) when the evidence in a subsequent trial is substantially different;

(2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or

(3) when the decision was clearly erroneous and would work a manifest injustice." See Alvarez, 142 F.3d at 1247 (citing Monsisvais, 946 F.2d at 117).

Here, Safeway argues that the evidence presented in Greene II was substantially different from that presented in Greene I. We are persuaded from our close examination of the record in Greene II that the same evidence was presented in Greene II that led this court to conclude in Greene I that the evidence was legally sufficient to support an inference of age discrimination.

Safeway first points to differences in witness testimony to support its argument that substantially different evidence was presented in Greene II. Safeway notes that Renfrew testified in Greene I that King, Greene's replacement, seemed "surprised" and planned to be around only for "a couple of years" and that she testified in Greene II that King seemed "shocked" and planned to be around only for "a short period." Safeway also notes that Greene testified in Greene I that Burd told him he did not fit in with the "new culture" and that there was no place for him on the "new team" and that Greene testified only to the "new team" statement in Greene II. These are empty distinctions.

Safeway also makes much of the fact that the testimony of John Etchison corroborated Renfrew's recollection of King's reaction in Greene I but that his testimony did not corroborate hers in...