Hartley v. Dillard's, Inc.

• Decision Date: 18 November 2002
• Docket Number: No. 02-1298.,02-1298.
• Citation: 310 F.3d 1054
• Parties: Dorman HARTLEY, Plaintiff-Appellee, v. DILLARD'S, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

310 F.3d 1054

Dorman HARTLEY, Plaintiff-Appellee, v. DILLARD'S, INC., Defendant-Appellant.

No. 02-1298.

United States Court of Appeals, Eighth Circuit.

Submitted: September 12, 2002.

Filed: November 18, 2002.

Rehearing and Rehearing En Banc Denied: December 20, 2002.^*

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Elizabeth Robben Murray, argued, Little Rock, AR, for appellant.

Morgan E. Welch, argued, Little Rock, AR, for appellee.

Before McMILLIAN, BRIGHT, and BOWMAN, Circuit Judges.

BRIGHT, Circuit Judge.

Dorman Hartley, a former employee, sued Dillard's, Inc., a department store chain, for age discrimination after his termination. A jury awarded Hartley back pay of $237,669.00. Based on a wilfulness finding by the jury, the district court¹ awarded Hartley front pay of $246,774.05, and attorney's fees and costs of $65,268.86. Dillard's then filed a motion for judgment as a matter of law, or in the alternative a new trial. The district court denied Dillard's motion. Dillard's brought this timely appeal. Dillard's argues that the district court erred in denying the motion for judgment as a matter of law on the basis that the evidence was insufficient for the jury to decide discrimination, that on the alternative motion for a new trial the court erred in instructing the jury on motive, that the testimony of Hartley's economist expert should have been excluded, and that the calculation of back pay and front pay was incorrect. We affirm the judgment.

I. BACKGROUND

Dillard's hired Hartley in 1987. In 1989, Dillard's promoted Hartley to the store manager position at its McCain Mall store in North Little Rock, Arkansas. Beginning in mid-1995, sales and profits at the McCain Mall Dillard's began declining. Hartley was unable to meet the annual sales and profit goals Dillard's had set for the McCain Mall store for fiscal years 1997, 1998, and the beginning of 1999.

In 1998, Dillard's experienced changes in upper level management. Dillard's promoted Tom Patterson to be the Little Rock district manager. Patterson served as Hartley's immediate supervisor. Dillard's also named Burt Squires as the new Corporate Vice President of Stores for the Arkansas Division.

Between July 1998 and June 1999, Hartley, Patterson, and Squires met several times to discuss the sales and profits of the McCain Mall store. As stated previously, sales and profits continued to decline during this period. In August 1999, Dillard's terminated Hartley, at age sixty-four, and replaced him with a thirty-two-year-old manager. Hartley then brought this action against Dillard's.

At trial, Dr. Charles Venus, Hartley's expert witness, testified that nationally malls were losing market shares to discount store chains and "big box" retail stores.² Hartley also presented the testimony of two former Dillard's employees. Aubra Carlton, an assistant store manager for Dillard's, and Dan Sparrow, a Dillard's district manager, testified concerning statements made by Corporate Vice President Squires that suggested age played a factor in the decision to terminate Hartley.

A jury found in favor of Hartley and determined that Dillard's acted willfully. With the finding of willfulness, the district court awarded Hartley front pay and attorney's fees. As we have observed, the district court denied the post trial motions and Dillard's brought this appeal.

II. DISCUSSION

A. Judgment as a Matter of Law

Dillard's contends that it was entitled to judgment as a matter of law on Hartley's age discrimination claim because he failed to prove that Dillard's stated reason for Hartley's firing was pretextual. We review the denial of a motion for judgment as a matter of law de novo, and draw all reasonable inferences in favor of the nonmoving party. Duncan v. Gen. Motors Corp., 300 F.3d 928, 933 (8th Cir.2002). Judgment as a matter of law is proper "when all the evidence points in one direction and is susceptible to no reasonable interpretation supporting the jury verdict." Blackmon v. Pinkerton Sec. & Investigative Servs., 182 F.3d 629, 635 (8th Cir. 1999).

Dillard's argued it terminated Hartley for unsatisfactory job performance, including the decline of sales and profits at his store. However, Hartley introduced expert testimony that mall sales were declining nationally. He also presented testimony that other Dillard's stores had decreases in sales and profits and Dillard's did not terminate those store managers. Hartley offered evidence that two other Dillard's managers had poor performances and were not terminated, instead Dillard's transferred them to other stores. Finally, Hartley provided testimony from co-workers that indicated that Squires had age in mind when he terminated Hartley.

Hartley introduced sufficient evidence for the jury to conclude that Dillard's assertion of declining profits as the reason for discharge amounted to pretext and that his age caused his discharge. "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The district court did not err in denying Dillard's motion for judgment as a matter of law on the basis of all the evidence.

B. Jury Instruction

We next address Dillard's contention that the district court erred when it instructed the jury on both mixed motive and pretext theories of discrimination. We review the jury instructions given by a district court for an abuse of discretion. See Brown v. Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir.2002). "Our review is limited to whether the jury instructions, taken as a whole, `fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case.'" Id. (quoting Ford v. GACS, Inc., 265 F.3d 670, 679 (8th Cir.2001)). We will not reverse "unless we find that the error affected the substantial rights of the parties." Fogelbach v. Wal-Mart Stores, Inc., 270 F.3d 696, 699 (8th Cir.2001).

The framework for evaluating an age discrimination claim depends on the type of evidence presented in support of the claim. Where the plaintiff relies primarily on circumstantial evidence, courts apply an analysis as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, after establishing a prima facie case, the plaintiff must prove by the preponderance of the evidence that the nondiscriminatory reasons offered by the employer were pretext for discrimination. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir.2002).

However, when a plaintiff can produce direct evidence that an illegal criterion was a motivating factor in the employment decision, the court uses the framework as set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The mixed motive framework allows for declaratory relief, injunctive relief, attorney's fees and costs once the plaintiff meets his initial burden regarding direct evidence. Gagnon v. Sprint Corp., 284 F.3d 839, 847-48 (8th Cir.2002). Thus, the employer is liable for discrimination upon direct evidence that it acted on the basis of a discriminatory motive. Id. Whether or not the employer satisfies its burden to show by a preponderance that it would have reached the same employment decision absent any discrimination is only relevant to determine whether the court may award full relief including damages, court ordered admissions, reinstatement, hiring, promotion or other such relief. Id.

In this case, the district court instructed the jury on both mixed motive and pretext theories using the special interrogatories as set forth in the Eighth Circuit's Civil Model Jury Instruction 5.92. This jury instruction was designed for use when a case cannot easily be classified as either a mixed motive case or a pretext case. The instruction is intended to elicit the jury's categorization of the case at issue. The committee comments to the instruction provide:

These special interrogatories are designed for use where the trial court is inclined to adhere to a mixed motive/pretext distinction but cannot readily classify a case under a "mixed motive" or "pretext" theory. For example, if plaintiff presents some direct evidence which does not clearly address the employment decision at issue, such as general statements of age bias by the employer, it may be unclear whether the case should be submitted under a "mixed motive" or "pretext" instruction.

EIGHTH CIR. MODEL JURY INSTR. § 5.92 cmt. (2001).

Dillard's argues that the use of this instruction was improper because there was no direct evidence of discrimination to entitle Hartley to a mixed motive instruction. Hartley presented the testimony of Dillard's operations manager, Aubra Carlton. Carlton testified that Squires directed her to "go out and hire some young guys" at a job fair. In addition, Hartley offered the testimony of Dan Sparrow, another store manager, who described another age-related situation. Sparrow testified that Squires asked him to remove two older women from their manager positions with Dillard's. Not only did Hartley offer some direct evidence of discrimination, he also offered circumstantial evidence on how he was treated differently in regard to profits at the store compared with other store managers. After careful review of the record, we agree that the evidence could reasonably be characterized to support a mixed motive theory of discrimination.

Dillard's also contends that the pretext portion of the instruction misstated this court's standard for finding pretext by requiring that the jury find that age was "a" determining factor rather than "the" determining factor. We have previously approved of instructions stating "the" determining...