Houser v. Sears, Roebuck & Co.

Decision Date10 October 1980
Docket NumberNo. 79-4007,79-4007
Citation627 F.2d 756
Parties23 Fair Empl.Prac.Cas. 1765, 58 A.L.R.Fed. 87, 24 Empl. Prac. Dec. P 31,295 William Kuykendall HOUSER (Lillie Belle Houser, survivor in community, substituted in place and stead of William Kuykendall Houser, deceased), Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee. Summary Calendar. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Glenn & Houser, R. W. Bill Glenn, Bob Houser, Plano, Tex., for plaintiff-appellant.

Clark, West, Keller, Butler & Ellis, Allen Butler, Richard Leland Brooks, Dallas, Tex., for defendant-appellee.

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

Before BROWN, POLITZ and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiff Houser brought this suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., alleging that his employer, Sears, terminated him because of his age. The jury rendered a verdict in favor of Houser, awarding him damages of $37,271.30; however, the trial court subsequently granted Sears' motion for a judgment notwithstanding the verdict. This appeal followed. 1 Based on our review of the record, we conclude that there was not substantial evidence to support the jury verdict, and we therefore affirm the trial court judgment.

Standard of Review

This court, in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc), set forth the standard by which to judge the propriety of a judgment notwithstanding the verdict:

. . . The Court should consider all of the evidence-not just that evidence which supports the non-mover's case-but in a light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences and determine the credibility of witnesses.

Id. at 374-75. This standard applies as well in our review of the trial court's granting of a judgment n. o. v. Maxey v. Freightliner Corp., 623 F.2d 395, 397 (5th Cir. 1980).

The ADEA Plaintiff's Burden of Proof

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the criteria necessary to establish a prima facie case of employment discrimination. This court has adopted with modifications the McDonnell Douglas test for age discrimination in employment. McCorstin v. United States Steel Corp., 621 F.2d 749 (5th Cir. 1980); Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir. 1977); Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 735 (5th Cir. 1977). To establish a prima facie case of age discrimination, the plaintiff must prove: (1) his membership in the protected class, (2) his discharge, (3) his qualifications for the position, and (4) his replacement by one outside the protected class. Marshall v. Goodyear Tire & Rubber, Co., supra. 2

Once the ADEA plaintiff establishes a prima facie case, the burden of going forward with the evidence shifts to the employer. Marshall v. Westinghouse Electric Corp., 576 F.2d 588, 590-92 (5th Cir. 1978); Bittar v. Air Canada, 512 F.2d 582 (5th Cir. 1975). However, even after there is provided evidence of reasonable factors other than age for the employee's discharge, 3 the plaintiff still bears the burden of establishing a case of discrimination by a preponderance of the evidence. Bittar v. Air Canada, supra, 512 F.2d at 582-83.

The Issue Before Us

The plaintiff concedes that the ultimate burden remains with the employee claiming age, discrimination, but nevertheless contends that, once (as here) a plaintiff shows a prima facie case of age discrimination and a defendant elicits evidence of good cause, "the jury must be allowed to render a verdict unless there is no substantial evidence which would support a jury verdict." In terms of Boeing and of the facts of this case, then, the jury verdict must be allowed to stand (and, consequently, the district court's grant of judgment n. o. v. must be reversed) unless the facts point so clearly and overwhelming that Sears fired Houser for a non-pretextual reasonable cause not based on age. Stated another way, before the judgment n. o. v. can stand, there must be a complete absence of probative evidence by which the jury could reasonably have found or inferred that Sears' reason for firing Houser was based on considerations stemming from his age.

Factual Showing

The evidence shows substantially without dispute that Houser was an exceptionally able, diligent, and hard-working manager, with an upward rise in responsibilities and salary as a Sears employee from his initial employment at age 35 in 1957 until he was fired at age 54 in 1975 after eighteen years of service. The incident giving rise to his discharge arose during his service as credit manager at the Webbs Chapel branch in Dallas. At the end of November, 1974, Houser took a payment from one customer (Jensen) and applied it to another account (the Pennington account).

The evidence shows no reason to doubt that this deliberate misapplication by Houser of funds from one account to another primarily arose out of his sincere desire to advance the best interests of his employer, Sears. There is not the slightest hint of a dishonest or self-serving motive or result in the act. Houser believed the delinquent Pennington's assurance that Pennington would make a belated payment within five days. By crediting the Pennington account at that time with a payment, Houser saved the account from becoming in default, which would require repossession of $2400 worth of draperies, with about a 90% loss to Sears on the repossessed goods. (However, just as indisputably, Houser knew that, aside from the elementary moral principle that one person's money should not be diverted to another customer's account, this misapplication was in violation of Sears' policy. 4) Since in fact Pennington did not make the payment as promised, within five days after the misapplication Houser properly credited the Jensen account with the payment (and likewise debited the Pennington account by causing deduction of the improperly allowed credit).

Shortly thereafterwards, as of January 3, 1975, Houser was promoted to the McAllen store as credit manager at a salary some $200 greater than that paid him in his prior position. On December 30, 1974, Houser notified his replacement at the Webbs Chapel store of his actions with regard to the Pennington account. Immediately thereafter, his...

To continue reading

Request your trial
26 cases
  • Syvock v. Milwaukee Boiler Mfg. Co., Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 24, 1981
    ...(4th Cir.), mod. on other grounds sub nom. Frith v. Eastern Air Lines, Inc., 611 F.2d 950 (4th Cir. 1979); see Houser v. Sears, Roebuck & Co., 627 F.2d 756, 757 (5th Cir. 1980). It is equally clear that, by allowing liquidated damages only for a "willful" violation, 29 U.S.C. § 626(b) (1976......
  • Kelly v. American Standard, Inc.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 23, 1981
    ...discharge, (3) his qualifications for the position, and (4) his replacement by one outside the protected class. Houser v. Sears, Roebuck & Co., 627 F.2d 756, 757 (5th Cir. 1980). Thus, in order to establish a basis for liability there is no requirement that a plaintiff introduce evidence of......
  • Grant v. Gannett Co., Inc.
    • United States
    • U.S. District Court — District of Delaware
    • April 21, 1982
    ...Richfield Co., 646 F.2d 407 (9th Cir. 1981); Kelly v. American Standard Inc., 640 F.2d 974 (9th Cir. 1981); Houser v. Sears Roebuck Co., 627 F.2d 756 (5th Cir. 1980); Kephart v. Instit. of Gas Technol., 630 F.2d 1217 (7th Cir. 1980), cert. denied 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383......
  • Lusardi v. Xerox Corp.
    • United States
    • U.S. District Court — District of New Jersey
    • November 5, 1987
    ... ... 363 action, such are available in defense of a class action ... For example, in Houser v. Sears, Roebuck & Co., 627 F.2d 756 (5th Cir.1980), the Fifth Circuit affirmed a directed ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT