Hall v. Western Production Co., 91-8059

• Decision Date: 16 March 1993
• Docket Number: No. 91-8059,91-8059
• Citation: 988 F.2d 1050
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 554, 61 Empl. Prac. Dec. P 42,109, 125 Lab.Cas. P 57,423, 38 Fed. R. Evid. Serv. 528 Donald K. HALL, Plaintiff-Appellee, v. WESTERN PRODUCTION COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1050

988 F.2d 1050

61 Fair Empl.Prac.Cas. (BNA) 554,

61 Empl. Prac. Dec. P 42,109,

125 Lab.Cas. P 57,423, 38 Fed. R. Evid. Serv. 528

Donald K. HALL, Plaintiff-Appellee, v. WESTERN PRODUCTION COMPANY, Defendant-Appellant.

No. 91-8059.

United States Court of Appeals, Tenth Circuit.

March 16, 1993.

Jane A. Villemez of Graves, Santini & Villemez, P.C., Cheyenne, WY, for plaintiff-appellee.

John K. Nooney of Morrill Brown & Thomas, Rapid City, SD, for defendant-appellant.

Before ANDERSON, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and GIBSON, Senior Circuit Judge, Eighth Circuit. ^*

McWILLIAMS, Senior Circuit Judge.

On January 31, 1989, Donald K. Hall, an employee of Western Production Company (Western), was discharged from his employment. After his discharge, Hall filed a complaint against Western with the Equal Employment Opportunity Commission and the Wyoming Fair Employment Commission (WFEC), asserting that his discharge violated the Age Discrimination in Employment Act (ADEA). WFEC investigated the matter and subsequently dismissed the complaint.

Hall then brought the present action against Western in the United States District Court for the District of Wyoming. After setting forth the operative facts common to both of his claims, Hall alleged as his first claim for relief a violation of the ADEA, 29 U.S.C. § 623 (1985), and as his second and pendent claim, he alleged a breach of an employment contract.

Trial of the case was to a jury. In response to special interrogatories, the jury found as follows: (1) Western discriminated against Hall because of his age, in violation of 29 U.S.C. § 623; (2) Hall sustained no damages as a result of this violation; (3) Western's violation of 29 U.S.C. § 623 was not "willful"; (4) Hall had an employment contract with Western; (5) Western breached this employment contract; and (6) the amount of money damages for this breach, "which does not duplicate any award previously given," was $41,793.00.

In accordance with the jury's verdict, the district court entered judgment in favor of Hall and against Western in the amount of $41,793.00. On motion, the district court also ordered that Hall recover attorney's fees of $30,025.00 and costs of $4,501.79. Western appeals these judgments.

On appeal, Western urges five matters: (1) absent a definite term of employment, Hall's employment with Western was terminable at will, and hence the district court erred in denying Western's motion for a directed verdict and its motion for judgment notwithstanding the verdict on Hall's breach of contract claim; (2) absent evidence that Western's decision to discharge Hall was pretextual to age discrimination, the district court erred in not directing a verdict on Hall's ADEA claim; (3) in view of the fact that the jury awarded Hall no money damages on his ADEA claim, Hall was not the "prevailing party," and the district court erred in awarding him attorney's fees; (4) the district court erred in refusing Western's request to submit into evidence the WFEC determination that Hall was not discharged because of his age; and (5) jury instructions numbered 15 and 22 incorrectly stated the law and misled the jury, which prejudiced Western. A brief recital of background facts will place these matters in focus.

Western is an oil and gas producer operating primarily in the Finn-Shurley Field in Weston County, Wyoming. In the fall of 1988, Western's daily operations were under the direction of Doran Newlin, who was 35 years old and had worked for Western for some nine years, advancing to the position of field superintendent in charge of all of Western's wells. In the fall of 1988, Western was exploring the possibility of acquiring certain assets of TOCO Corporation. TOCO, like Western, was an operator of oil and gas wells in the Finn-Shurley Field, although on a smaller scale. Since both companies were operating in the Finn-Shurley Field, Western thought that certain of TOCO's assets could be integrated into its operation.

Donald K. Hall, age 64, was TOCO's field superintendent. Western's interest in TOCO became known to TOCO's employees, who, in turn, became concerned about their future employment should the acquisition be consummated. Hall, on behalf of himself and other TOCO employees, had a telephone conversation in November, 1988, with John Paulson, Western's president, concerning the future employment of TOCO's employees should the acquisition occur. The details of this conversation will be discussed later. A few days after Hall's telephone conversation with Paulson, Doran Newlin, Western's field superintendent, talked with TOCO's employees about their future employment with Western. Again, the details of this meeting will be discussed later.

In late December, 1988, Western and TOCO entered into an agreement whereby TOCO agreed to sell and Western agreed to buy certain of TOCO's assets consisting of equipment, wells, and leases. All of TOCO's employees, except for two members of the office staff and Hall, began working for Western as of January 1, 1989. On that date, Hall was on a three-week vacation which ended on January 15, 1989. One week of Hall's vacation occurred before the acquisition, and he was paid for that week by TOCO. Western paid Hall for the last two weeks of his vacation at the pay rate he was receiving as TOCO's field superintendent.

On January 16, 1989, Hall appeared at Western's offices prepared to continue as field superintendent for the TOCO properties acquired by Western. At this time, however, Hall was informed by Newlin

                that there had been a change of plans and that he (Newlin) was going to be the field superintendent for all of Western's properties.   Hall was then presented an offer to work for Western as a tank strapper.   After considering this alternative, Hall declined the position of tank strapper, and Western discharged him by letter on January 31, 1989
                

BREACH OF CONTRACT

Apparently, Hall had no employment contract for a definite term with TOCO, and he agrees that his employment with TOCO was at will, which, under Wyoming law, meant that either he or TOCO could terminate the employment relationship at any time without notice or reason. Nelson v. Crimson Enterprises, Inc., 777 P.2d 73, 75 (Wyo.1989); Allen v. Safeway Stores, Inc., 699 P.2d 277, 282 (Wyo.1985); Rompf v. John Q. Hammons Hotels, Inc., 685 P.2d 25, 27-28 (Wyo.1984). Both parties recognize that a definite term must exist in an employment contract to remove an employee's at-will status. Allen, 699 P.2d at 282. In this regard, Western asserts that any employment contract which may have existed between it and Hall also did not have a definite term of employment and, accordingly, that Hall was an at-will employee, and either party could terminate the contract without notice or reason.

At the conclusion of Hall's evidence, Western moved for a directed verdict on the breach of contract claim on the ground that Hall's employment contract with Western was terminable at will. This motion was denied, as was Western's renewed motion for a directed verdict at the conclusion of all the evidence. Western's motion for judgment notwithstanding the verdict on the breach of contract claim was similarly denied. In denying Western's motion for judgment notwithstanding the verdict, the district court stated:

Defendant's motion rests on a perceived lack of evidence to establish the existence of a definite term of employment. Indeed, without a definite term of employment, an employee or employer can end the relationship at any time for any reason without breaching the "employment contract." ... Defendant contends that "[i]t was uncontroverted Hall did not have a definite term of employment with Western ... and thus plaintiff could be fired at any time. In light of this, defendant contends, substantial evidence was not presented to support the conclusion that plaintiff had a contract of employment which could have been breached by defendant's actions of firing plaintiff without cause.

There is some dispute over the role plaintiff was to play in defendant's operations. However, whatever plaintiff's role in the organization was going to be, all indications were that plaintiff would be in that position at least until his anticipated retirement in September, 1989. The evidence reasonably supports a conclusion that these indications went beyond the parties' "[s]ubjective understandings and expectations."

(citations omitted) (emphasis added).

The general rule regarding a motion for directed verdict or a motion for judgment notwithstanding the verdict, i.e., when they should be granted and when they should be denied, is not here in dispute. The dispute arises when the general rule is applied to the facts of the instant case. In this connection, in Joyce v. Atlantic Richfield Co., 651 F.2d 676, 680 (10th Cir.1981), we observed that:

[w]hen faced with a motion for judgment notwithstanding the verdict, the standards by which the prerequisite motion for directed verdict is judged control.... Judgment notwithstanding the verdict may only be granted where the evidence "points all one way and is susceptible of no reasonable inferences that sustain the position of the party against whom the motion is made." ... A mere scintilla of evidence is insufficient to justify the denial of the motion. However, since the grant of such a motion deprives the nonmoving party of a determination of the facts by a jury, judgment notwithstanding the verdict should be cautiously and sparingly granted.

(citations omitted).

Regarding his breach of contract claim, Hall's theory of the case is that his Under Wyoming law, Hall's subjective understanding of a definite term is insufficient, Allen, 699 P.2d at 282; what is required is a mutual understanding between the parties that a definite term exists, id. at 281, 282. In our view, there is sufficient evidence, both direct and circumstantial, of such a mutual understanding as to...