Haring v. CPC Intern., Inc.

• Decision Date: 30 November 1981
• Docket Number: No. 79-3150,79-3150
• Citation: 664 F.2d 1234
• Parties: 27 Fair Empl.Prac.Cas. 575, 28 Empl. Prac. Dec. P 32,403 T. Alton HARING, Plaintiff-Appellee, v. CPC INTERNATIONAL, INC., Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1234

664 F.2d 1234

27 Fair Empl.Prac.Cas. 575,

28 Empl. Prac. Dec. P 32,403

T. Alton HARING, Plaintiff-Appellee, v. CPC INTERNATIONAL, INC., Defendant-Appellant.

No. 79-3150.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 30, 1981.

David R. Aufdenspring, R. Carl Cannon, Atlanta, Ga., for defendant-appellant.

Joseph Lefkoff, Nancy Saul, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, TJOFLAT and KRAVITCH, Circuit Judges.

TJOFLAT, Circuit Judge:

In this Age Discrimination in Employment Act (ADEA) case, CPC International, Inc. (CPC), defendant below, appeals from an adverse jury verdict. CPC contends that we should reverse because (1) the district court's instructions to the jury were deficient and (2) the district court should have granted its motion for judgment n.o.v. We affirm.

I

The relevant facts are straightforward. In 1937, CPC hired T. Alton Haring, then twenty years old, as a mailroom clerk. From 1937 to 1970, Haring progressed in the corporate hierarchy, and in 1970 he was promoted to the position of regional sales manager. In December 1975, Haring's supervisor, Walter Tschour, appraised Haring's performance negatively. Then, on March 15, 1976, Tschour fired Haring.

Haring, who was fifty-nine, believed CPC's decision to discharge him was based on his age. Since the ADEA prohibits employment discrimination on the basis of age, Haring filed a lawsuit in federal district court. CPC answered that Haring's discharge was related solely to his unsatisfactory job performance.

The case proceeded to trial before a jury. At trial, Haring introduced evidence probative of his membership in the group protected by the ADEA, his discharge and subsequent replacement with a person outside the protected group, and his ability to perform his job. The court held that Haring's evidence, if believed by the jury, established a prima facie case of age discrimination. See Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977). In its defense, CPC introduced evidence suggesting that the sole reason Haring was fired was inadequate job performance.

At the close of all the evidence CPC moved for a directed verdict. Its motion was denied, and the case was submitted to the jury under a lengthy charge, to which CPC objected for numerous reasons discussed in the body of this opinion. The jury returned a verdict for Haring, and CPC moved for judgment n. o. v. The court denied the motion and entered final judgment for Haring. CPC now appeals, arguing that its objections to the jury instructions should have been sustained and that the evidence was insufficient to support the jury's verdict. While we think CPC raises difficult questions about the court's charge to the jury, we are satisfied that the charge, taken as a whole, was proper. Since we also find the evidence sufficient to support the verdict, we affirm.

II

In reviewing jury instructions, "we consider the charge as a whole, and if the instructions taken together properly express the law applicable to the case, 'there is no just ground of complaint, even though an isolated and detached clause is in itself inaccurate, ambiguous, incomplete, or otherwise subject to criticism.' " International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 728 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976) (quoting Delancey v. Motichek Towing Service, Inc., 427 F.2d 897, 901 (5th Cir. 1970)). It is against this standard that we must evaluate CPC's objections to the court's charge to the jury.

CPC's first four objections stem from a single passage in the court's charge, which, for convenience, we quote in its entirety:

Now in this case, the plaintiff, Mr. T. Alton Haring, bears the burden of proving that defendant, CPC International, Inc., discriminated against him on the basis of age. Once the plaintiff, Mr. Haring, makes out a prima facie case of age discrimination, the defendant bears the burden of going forward to demonstrate that plaintiff was terminated for good casue (sic), that is, for legitimate, nondiscriminatory reasons. Then the plaintiff bears the burden of proving that the reasons advanced by the defendant for the plaintiff's termination are but a pretext.

In this connection, I charge you that the plaintiff establishes what the law calls a prima facie case of age discrimination in his discharge if he shows: first, that he was within the protected age group, that is, that he was between forty and sixty-five years of age; second, that he was discharged or involuntarily retired; third, that he was qualified for the position he held; and fourth, in addition, he shows either that he was replaced by a person outside the protected age group, or he produces statistical or other evidence of discriminatory conduct against him at the hands of the defendant.

If a prima facie case is established by the plaintiff, the jury may infer that the employment decision to terminate was probably based upon the impermissible factor of age. I say that the jury may infer such, not that it must infer such, this being a matter solely for you to determine. Nothing said by counsel, the court, or any witness should be construed by you as requiring you to draw any such inference. The defendant must then rebut the inference of discrimination, if such you have inferred from the establishment of the plaintiff's prima facie case, by producing evidence that the employment decision was founded on good cause or was based on factors other than age.

Record, vol. IX at 58-60. CPC first argues that these instructions should not have commented on the elements of an ADEA prima facie case. ¹ CPC notes, quite correctly, that the function of an ADEA prima facie case is to create a presumption that the employer discriminated. The employer can rebut this presumption, however, by proffering evidence tending to show that a legitimate, nondiscriminatory reason for the discharge existed. See Marshall v. Goodyear Tire, 554 F.2d 730, 736 (5th Cir. 1977). If the employer satisfies this burden, the plaintiff can succeed "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). The evidence in Haring's case justified instructing the jury that if it found that Haring proved both the elements of a prima facie case and the pretextual nature of the employer's explanation, he should prevail. See Loeb v. Textron, Inc., 600 F.2d 1003, 1016-1018 (1st Cir. 1979). It was, however, inappropriate, though not reversible error in this case, for the court to clutter up its charge with unnecessary legal terminology such as "prima facie case." A recitation of the elements would have sufficed and, further, would have minimized the possibility of confusion.

CPC next argues that the court erred in instructing the jury that one prima facie element was plaintiff's replacement with "a person outside the protected age group." CPC argues that while this formulation is sufficient in charges of discriminatory hiring, in a discharge case the plaintiff must prove both that the defendant sought to replace him with a younger person and in fact did so. Our cases have consistently held, however, that simple proof of replacement with a person outside of the protected age group satisfies this prong of a prima facie case under the ADEA. See, e. g., Harpring v. Continental Oil Co., 628 F.2d 406, 408 (5th Cir. 1980).

CPC next contends that the instructions improperly saddled it with a burden of persuading the jury that it discharged Haring for nondiscriminatory reasons. CPC is correct that if a plaintiff proves his prima facie case, the defendant is only required to

clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity....

The plaintiff retains the burden of persuasion.

Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95 (footnotes omitted). Thus, had the district court in fact instructed the jury that CPC had the burden of persuasion, we would be required to reverse and remand for a new trial. Fairly read, though, the instructions did not assign a burden of persuasion to CPC.

The court's instructions, which we quoted supra, p. 1237, describe CPC's burden in two different sentences. The first sentence states that "(o)nce the plaintiff, Mr. Haring, makes out a prima facie case of age discrimination, the defendant bears the burden of going forward to demonstrate that plaintiff was terminated for good casue (sic) ...." Record, vol. IX at 59. The second sentence states: "The defendant must then rebut the ... prima facie case, by producing evidence that the employment decision was founded on good cause or was based on factors other than age." Id. at 60.

The first sentence sets forth the correct legal standard; it assigns to the defendant the burden of going forward only. The sentence is, in fact, a paraphrase from an opinion of this court that holds that an ADEA defendant bears only the burden of going forward and not of persuasion. Marshall v. Westinghouse Electric Corp., 576 F.2d 588, 590 (5th Cir. 1978). CPC argues that a juror might not have appreciated the legal significance of the term, "burden of going forward," and thus may have construed it to mean "burden of persuasion." We find, however, that as they continued, the court's instructions adequately clarified the defendant's burden in two ways. First, the court,...