Herold v. Hajoca Corp., s. 88-3955

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore MURNAGHAN and CHAPMAN; MURNAGHAN
Citation864 F.2d 317
Parties48 Fair Empl.Prac.Cas. 972, 48 Empl. Prac. Dec. P 38,527 Warren G. HEROLD, Plaintiff-Appellee, v. HAJOCA CORPORATION, Defendant-Appellant. Warren G. HEROLD, Plaintiff-Appellant, v. HAJOCA CORPORATION, Defendant-Appellee.
Docket Number88-3967,Nos. 88-3955,s. 88-3955
Decision Date19 January 1989

Walter H. Flamm, Jr. (Joseph A. Eagan, Jr., Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., Matthew B. Murray, Richmond & Fishburne, Charlottesville, Va., on brief), for defendant-appellant.

Edward B. Lowry (Robert W. Jackson, Michie, Hamlett, Donato & Lowry, P.C., Charlottesville, Va., on brief), for plaintiff-appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.

MURNAGHAN, Circuit Judge:

An Age Discrimination in Employment action 1 confronts us here. The plaintiff, Warren G. Herold, was in part successful. His compensatory award should prevail over defendant Hajoca Corporation's motions for summary judgment, directed verdict and judgment non obstante veredicto, because Herold was able to demonstrate a failure of Hajoca to follow an announced policy of laying off the shorter time employees among those qualified when lack of work resulted in termination. Herold showed there were several (perhaps four) younger employees retained when he was terminated who had less time in service than he did. However, as to the jury's award of a liquidated (punitive) damages amount equal to the compensatory award, the district judge correctly ordered entry of judgment non obstante veredicto. 682 F.Supp. 297.


In considering a motion for directed verdict or for a JNOV, the trial court is to apply the same standard: whether, viewing the evidence in the light most favorable to the non-moving party and giving him the benefit of all reasonable inferences, there is sufficient evidence in the record to support a jury verdict in his favor. 2 Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2249, 90 L.Ed.2d 695 (1986); Wilhelm v. Blue Bell Inc., 773 F.2d 1429, 1433 (4th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986). The court must not weigh the evidence or assess the credibility of witnesses. Taylor, 777 F.2d at 854. In reviewing a grant or denial of a motion for a JNOV or directed verdict, the appellate court is to apply the same standard that governed the trial court's determination. Lust v. Clark Equipment Co., 792 F.2d 436, 438 (4th Cir.1986).

The Court has cautioned against granting motions for directed verdict and JNOV in discrimination cases where motive and causation are at issue:

Determination of motive is ordinarily a function within the purview of the fact finder because so much depends on an assessment of the credibility of the witnesses. A finding of motive should not be set aside by the reviewing court unless the evidence clearly compels rejection.

Taylor, 777 F.2d at 854 (trial court did not err in denying defendant's motion for directed verdict and JNOV in ADEA case).

In ADEA cases, the Fourth Circuit permits plaintiffs to use the three-stage scheme of proof originally formulated for Title VII 3 cases. EEOC v. Western Electric Co., 713 F.2d 1011, 1014 (4th Cir.1983). See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of age discrimination. If he succeeds, the burden of production shifts to the defendant to articulate a nondiscriminatory reason for treating plaintiff as he did. Once the defendant does that, the plaintiff must bear the burden of proving that he was the victim of intentional discrimination. He can do this by demonstrating that the defendant's proffered reason was a mere pretext and that, as between the plaintiff's age and the defendant's explanation, age was the more likely reason for the dismissal. Western Electric, 713 F.2d at 1014; Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 240-41 (4th Cir.1982).

In a reduction-in-force case, such as we have here, a plaintiff must show four things to make out a prima facie case under ADEA: (1) that he is in the protected age group, (2) that he was discharged, (3) that at the time of the discharge, he was performing his job at a level that met his employer's legitimate expectations, and (4) that persons outside the protected age class were retained in the same position or that there was some other evidence that the employer did not treat age neutrally in deciding to dismiss the plaintiff. Western Electric, 713 F.2d at 1014-15. An individual must be at least 40 years of age to fall within the protections of ADEA. 29 U.S.C. Sec. 631(a). Herold was.

Concededly Herold established the first three elements of his prima facie case. Hajoca argues, however, that the fourth requirement remained unsatisfied because no younger workers were retained in the same job (i.e., shipping clerk) that Herold held. It is true that the remaining younger workers not discharged when Herold was did not hold jobs with the same title as that assigned to Herold's job and that, on his discharge, his job duties were assigned to a worker older than Herold. But that does not mean that Herold failed to satisfy the fourth element of his prima facie case. Western Electric provides that a plaintiff can satisfy that element either by showing that persons outside the protected class were retained in the same position or by producing some other evidence indicating that the employer did not treat age neutrally. Western Electric, 713 F.2d at 1014-15. Thus, the plaintiff can satisfy the standard by showing that his employer treated an older worker differently than younger employees in similar positions.

The evidence, when viewed in the light most favorable to Herold, would support a jury finding that his employer treated him differently than a number of younger workers who were in similar positions and that Herold thus had made out a prima facie case of age discrimination. He presented evidence that he was dismissed while younger workers, at least one of whom was under 40 and therefore outside the ADEA-protected class, were retained. He presented evidence that he was qualified to perform the jobs of those younger workers, including the one under 40. In addition, he presented evidence that the company had a long-standing policy of laying off the workers with the least seniority first whenever faced with an economic downturn, but that the defendant had failed to follow that procedure in the instant case.

Hajoca responded by articulating four facially non-discriminatory reasons for dismissing Herold instead of the younger employees. First it was contended that Herold's job was the easiest to eliminate. Second, Hajoca contended that company policy did not permit an employee to displace or "bump" a worker with less seniority if the two employees were in different job classifications. Third, Hajoca argued that Herold was less versatile in performing other jobs. Finally, it was argued that Herold was not as good a worker as the others.

Herold then bore the burden of proving that Hajoca's proffered reasons were pretexts. Herold produced evidence that all the jobs in the Staunton, Virginia, branch were virtually interchangeable. He testified that the company policy, if followed, would have allowed him to "bump" workers with less seniority, even if they were in other job classifications. 4 Herold presented evidence that he could perform all jobs but one and could have performed that one if he had received nominal training. He presented evidence from his supervisor and co-workers that his job performance had been good. Herold also presented evidence that when faced with cutbacks, the employer laid off an older truck driver while retaining two younger ones in the same job category.

When viewed in the light most favorable to Herold, and when all reasonable inferences are drawn in Herold's favor, the jury could properly have found that Hajoca's proffered reasons for dismissing Herold were mere pretexts and that it was more likely that age was the real reason for his firing.

The evidence at trial presented two versions of what happened and resolution of the case depended on which witnesses were credible. Determining witness credibility is the job of the jury. The district judge was correct in not taking that task away from the jury and in not overturning the verdict of the jurors once they had made a judgment about which witnesses to believe.

Hajoca points to four ADEA cases in which it has been held that no discrimination was proved and argues that those decisions compel the same result in the instant case. However, there are crucial differences between the facts of those cases and the facts of this one. In Western Electric, supra, we reversed a finding of discrimination because the trial court misconstrued the law by requiring the plaintiff to prove only the first three, rather than all four, elements of the prima facie case. 713 F.2d at 1015. In addition, the Western Electric court found that, even if plaintiffs had made out a prima facie case, many of the defendant's proffered reasons for demoting the employees had gone unchallenged by the plaintiffs. Id. at 1015-16. Likewise, in three other cases relied on by the appellant--Fink v. Western Electric Co., 5 Lovelace v. Sherwin-Williams Co., 6 and Smith v. Flax 7--the plaintiffs failed to present adequate evidence contradicting most of the defendants' proffered explanations for their personnel decisions. In the instant case, by contrast, Herold presented evidence directly challenging all of the reasons offered by Hajoca to explain its decision to dismiss him.


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