Klein v. Stop-N-Go
| Decision Date | 16 April 1987 |
| Docket Number | No. 85-3591,STOP-N-G,D,85-3591 |
| Citation | 816 F.2d 680 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Doris E. KLEIN, et al., Plaintiffs, Janet Wagner, Plaintiff-Appellant, v.efendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before JONES and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
Plaintiff Janet Wagner appeals from a directed verdict entered against her in this action alleging a violation of the Age Discrimination in Employment Act (ADEA). After reviewing the record in this case, we reverse.
Wagner was born in 1940. She was hired by Stop-N-Go in August 1981 as a grocery store clerk in Store 553. At that time the supervisor for that store was John Arnett. Mr. Arnett supervised six stores in the Cincinnati and Northern Kentucky area and reported to the district manager of the entire region, Ira Rovster.
On March 15, 1982, Wagner was promoted from grocery store clerk to assistant manager in the same store. On July 1, 1982, she was promoted to manager of Store 553. She was demoted back to assistant manager and transferred to Store 551 in February 1983 due to personnel and financial problems in Store 553 for which she was held responsible. Stop-N-Go had a company policy that only the manager or assistant manager make the store's deposits. Wagner often permitted her husband to make bank deposits for the store. Arnett was, however, present on at least two occasions when Wagner's husband came into the store and handed her an empty bank bag.
In mid-March 1983, Stop-N-Go discovered major cash shortages at Store 551. Ira Royster and Arnett conducted an investigation of the store's substantial inventory shortage and missing cash deposits. Store manager Marcia Hood and Wagner were questioned by the police concerning the missing money. During the investigation Wagner admitted that she had permitted her husband to make a bank deposit earlier in the week before the theft was discovered and on many other occasions when she had managed Store 553. According to testimony, she was suspended at that time. Hood subsequently confessed to embezzling some of the cash and was subsequently fired and prosecuted. Arnett, the supervisor, was also fired. There was no evidence that Wagner had anything to do with that crime. In addition to Arnett, Hood and Wagner being released, four other employees at Store 551 were laid off. Of the seven terminated, Wagner was the only one within the protected age category.
Wagner filed suit in the district court alleging that Stop-N-Go discharged her because of her age. The district court denied Stop-N-Go's motion for a directed verdict at the close of Wagner's proof finding that there was statistical and circumstantial evidence of age discrimination that raised a factual question for the jury. During its presentation of the case, Stop-N-Go argued that Wagner was terminated for permitting her husband to make bank deposits in violation of company policy. The district court concluded that although Wagner devoted most of her case to her effort to prove this reason was pretextual, there was no evidence presented of a situation where a violation of company policy arose with a substantial shortage of inventory and missing corporate funds. It also concluded that Wagner presented no evidence that age was a determining factor in the discharge. Since all employees associated with the store had been fired in a short period of time, the district court concluded that age had nothing to do with the decision to terminate her.
For a case to be properly submitted to the jury, there must be " 'more than a scintilla' " of evidence supporting the claim. Wilkins v. Eaton Corp., 790 F.2d 515, 522 (6th Cir.1986) (quoting Brady v. Southern Railway Co., 320 U.S. 476, 479 (1943)). In determining whether the evidence was sufficient, the court may neither weight the evidence, pass on the credibility of witnesses, nor substitute its judgment for that of the jury. Instead, the evidence must be viewed in the light most favorable to the party against whom the motion was made, drawing from that evidence all reasonable inferences in his favor. Id; Morelock v. NCR Corp., 586 F.2d 1096, 1104 (6th Cir.1978), cert. denied, 441 U.S. 906 (1979).
One way a plaintiff can establish a prima facie case of age discrimination is by demonstrating that: 1) he was a member of a protected class; 2) he was discharged; 3) he was qualified for the position; and 4) he was replaced by a younger person. Wilkins, 790 F.2d at 520. This is not, however, a test that should be applied blindly or mechanically in age discrimination cases. Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1179-80 (6th Cir.1983). The district court noted that Wagner had not presented evidence that a younger person replaced her but determined that she had produced sufficient statistical and circumstantial evidence to meet her prima facie burden. Proof of this nature is permitted under Blackwell, 696 F.2d at 1180.
Once a plaintiff has met the prima facie burden, the burden of production shifts to the employer to articulate a legitimate reason for the termination. Id. The burden then shifts back to the plaintiff who must show, by a preponderance of the evidence, that the articulated reason was pretextual or merely a " 'cover-up' for what was in truth a discriminatory purpose." Wilkins, 790 F.2d at 521 (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1012 (1st Cir.1979)). The ultimate question in an age discrimination action is whether age was a determining factor in the employment decision. Blackwell, 696 F.2d at 1180.
Stop-N-Go's asserted reason for Wagner's termination was her violation of the company's bank deposit rule. It also argues that even if she were not dismissed for this violation, she would have been dismissed a few days later because all employees of Store 551 had been either laid off or fired. The district court acknowledged Wagner's proffered evidence as an attempt to show Stop-N-Go reason for terminating her because of the bank deposit rule violations was pretext. It found, however, that the undisputed facts showed that Stop-N-Go "fired every employee of the store in question within the space of six days." The combination of both facts, the district court held, showed that age had nothing to do with the termination.
First, there is a problem with whether the district court should have viewed both facts as Stop-N-Go's justification for Wagner's dismissal. Stop-N-Go's representatives testified unequivocally that Wagner was dismissed for violating the bank deposit rule; they did not testify that she was terminated because of the cash shortages at Store 551. Rather, they testified that she would have been terminated a few days later as were all the other employees of the store. Even if we assume that the latter reason is true, there is a question whether the district court may disregard the offers of proof attempting to show the defendant's stated reason for discharge was pretextual and grant a directed verdict based in part on a hypothetical situation. The real undisputed fact is that Wagner was terminated because of the bank deposit rule. She may have been discharged a few days later for the cash shortages but that never happened. Since that situation never developed, it can only be viewed in hypothetical terms. Stop-N-Go argued that she was terminated for violating the bank deposit rule and the inquiry should be whether age discrimination was a determining factor in her termination for violating the rule.
Once it is established, however, that violation of the bank deposit rule is the reason for discharge, then it must be determined whether the district court properly took the issue of age discrimination from the jury. In other words, was there a jury question on whether Stop-N-Go's reason was a pretext for discrimination.
The facts tend to indicate that this case should have been submitted to the jury. First, there was not a clear company policy that allowing a non-employee to make bank deposits was grounds for termination. The rule simply states that termination is the penalty if the deposit is not made. No other employee had ever been terminated for violating that rule. There was even testimony that Arnett saw Wagner's husband returning to the store with empty bank bags on a number of occasions. This fact does not prove that Arnett knew that Wagner's husband was making the bank deposits, but it could be viewed as a tacit approval by Arnett of that practice.
Viewed in isolation, the above facts do not create an inference of age discrimination; nevertheless they must be considered along with other facts. There was testimony that at a March 22, 1983 manager's meeting, Ira Royster stated "that all of us managers should get rid of older employees." There was also testimony by a former manager who stated that Arnett's successor, Becky Able, told her to "set older employees up" to get rid of them. Stop-N-Go argues that these statements are not relevant to Wagner's case because she had already been discharged. We do not agree. Royster was the district manager when Wagner was employed and he admitted giving instructions to Arnett to fire Wagner. The state of mind of Stop-N-Go's manager one week after the discharge is not too remote in time and could be probative of his motives in having Wagner dismissed. Able's statement, although not as probative on the issue as Royster's, could still be interpreted as reflective of the general attitude of the Stop-N-Go hierarchy.
There was evidence submitted of Stop-N-Go supervisory employees referring to older employees as "old bitches" and "old bags." The district court dismissed these remarks as too much a part of everyday vernacular...
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