Kehoe v. Anheuser-Busch, Inc.

• Decision Date: 25 June 1993
• Docket Number: INC,No. 92-2395,ANHEUSER-BUSC,92-2395
• Citation: 995 F.2d 117
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 228, 62 Empl. Prac. Dec. P 42,430, 26 Fed.R.Serv.3d 452 Robert KEHOE, Appellant, v., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 117

995 F.2d 117

62 Fair Empl.Prac.Cas. (BNA) 228,

62 Empl. Prac. Dec. P 42,430, 26 Fed.R.Serv.3d 452

Robert KEHOE, Appellant, v. ANHEUSER-BUSCH, INC., Appellee.

No. 92-2395.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1993.

Decided May 17, 1993.

Amended June 25, 1993.

John D. Lynn, St. Louis, MO, argued (Michael J. Hoare, on brief), for appellant.

Susan N. Rowe, St. Louis, MO (argued), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and REAVLEY, ^* Senior Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

Robert Kehoe appeals from a summary judgment granted to Anheuser-Busch, Inc., on his claims that he was discharged, at the age of 61, in violation of the Age Discrimination in Employment Act (ADEA) and the Missouri Human Rights Act (MHRA). The District Court held that Kehoe, who was fired during an apparent reduction in force in 1990, failed to present a prima facie case of age discrimination. In the alternative, the Court determined that, in any event, Anheuser-Busch articulated legitimate, non-discriminatory reasons for his termination. Kehoe argues that there remain questions of material fact which preclude the entry of summary judgment. We reverse and remand this case for trial.

I.

Robert Kehoe joined Anheuser-Busch as a member of its Sports Marketing Group in May of 1983. ¹ His primary duties were with the Busch Soccer Club, a not-for-profit corporation geared towards the development of youth soccer in the St. Louis, Missouri, area. Although Mr. Kehoe's title was Sports Promotion Coordinator, ² he in fact was lent as an employee to the Busch Soccer Club. In this capacity, he had only limited exposure to Anheuser-Busch marketing promotions. While with the Busch Soccer Club, he was involved with the selection of coaches and players for the various teams within the Club and the daily operation of the Club, including coaching and scheduling. He also played a large role in the management of the Club, controlling and monitoring the Club's budget, representing the Club at various state, local, and national functions, and developing and implementing Club policies and procedures.

In 1989, Anheuser-Busch, in response to increased competition and declining revenues, instituted a series of cost-cutting measures, including a company-wide hiring freeze. In addition, it instructed individual groups within the company, including the Sports Marketing Group, to reduce their 1990 budgets. In an effort to meet this goal, Bruce Hudson, the senior manager of the Group, recommended to Mark Lamping, the Group's director, that the Group curtail the funding of the Busch Soccer Club, which, according to Mr. Hudson, gave the company little in terms of promotional value for Anheuser-Busch's investment in it. Mr. Lamping agreed with this assessment, and the decision was made to reduce this funding. In conjunction with the reduced funding, Mr. Kehoe was informed, in December of 1989, that his position would be terminated on March 31, 1990. Although he wanted to stay with the company, Anheuser-Busch did not reassign Mr. Kehoe to another position within the Sports Marketing Group. Furthermore, although two Sports Promotion Coordinators had resigned, Mr. Kehoe was not considered for either vacancy (one of which was never filled).

II.

Under the ADEA, employers are prohibited from discharging employees because of their age. The Act, however, specifically excludes a discharge which is based on good cause. In the present case, the District Court held that Mr. Kehoe was dismissed as part of a plan to reduce costs in order to meet tightening marketplace conditions. This reasoning, if factually supported, would be sufficient to justify Anheuser-Busch's actions under the ADEA.

Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has explained this standard as follows ... the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

III.

In evaluating Mr. Kehoe's claims, the District Court found, and we agree, that he was in the protected class (age 61) and that he was discharged from a job that he was arguably qualified for. In order to make a prima facie case, plaintiff must also either show that the employer assigned a non-member of the protected class to do the same work (a fact that is necessarily absent from this reduction-in-force case), or make "some additional showing" that age played a role in the discharge. Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1165-66 (8th Cir.1985). Two pieces of evidence persuade us that the plaintiff met this additional requirement.

The first is found in the comments of the plaintiff's manager, Bruce Hudson. In affidavits submitted on behalf of the plaintiff, two of his former co-workers, Jayne Mullin-Sampson and Steve Sampson, detailed a pattern of conduct on the part of Mr. Hudson which could fairly be interpreted by a trier of fact as indicating that Mr. Kehoe's discharge was motivated by his age. ³ Specifically, the Sampson affidavits indicated that Mr. Hudson treated Mr. Kehoe and Bob Brunette, Mr. Kehoe's older co-worker at the Busch Soccer Club, with disdain, and that he referred to them as "moochers," a phrase which Steve Sampson interpreted as equating Mr. Kehoe with someone who is retired. Affidavit of Steve Sampson, Appellant's App. 109. Mrs. Mullin-Sampson noted that Mr. Hudson indicated that the budget cuts provided him with the opportunity to be rid of Mr. Kehoe. Affidavit of Jayne Mullin-Sampson, Appellant's App. 113. In addition, this affidavit stated that Mr. Hudson showed a demonstrated preference towards younger workers, that he treated Mr. Kehoe with less respect than younger workers, and that he excluded Mr. Kehoe from meetings and made derogatory comments about him. Ibid. Finally, Mr. Sampson stated that Mr. Hudson had made remarks which indicated that he had no intention of allowing Mr. Kehoe or Mr. Brunette (the two older employees) to function as an integral part of the Sports Marketing Group. Affidavit of Steve Sampson, Appellant's App. 110.

Other evidence can reasonably be interpreted as showing that there was an age-related bias in the personnel practices of the Sports Marketing Group. Prior to his dismissal, Mr. Kehoe was one of the oldest members of the Group. In fact, next to Bob Brunette (who retired before Mr. Kehoe's termination), he appeared to be the oldest Sports Promotion Coordinator by at least 15 years. In addition, Steve Sampson noted in his affidavit that unlike other (younger) Sports Promotion Coordinators who had promotions cancelled, Mr. Kehoe was not given the opportunity to be transferred...