Merrick v. Farmers Ins. Group

• Decision Date: 03 January 1990
• Docket Number: No. 88-3934,88-3934
• Citation: 892 F.2d 1434
• Parties: 51 Fair Empl.Prac.Cas. (BNA) 1391, 52 Empl. Prac. Dec. P 39,548, 58 USLW 2463, 29 Fed. R. Evid. Serv. 355 D. James MERRICK, Plaintiff-Appellant, v. FARMERS INSURANCE GROUP, a conglomerate insurance company, consisting of Farmers Insurance Exchange, Fire Insurance Exchange, Farmers New World Life Insurance, Mid-Century Insurance Company and Farmers Insurance Company of Idaho, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1434

892 F.2d 1434

51 Fair Empl.Prac.Cas. (BNA) 1391,

52 Empl. Prac. Dec. P 39,548, 58 USLW 2463,

29 Fed. R. Evid. Serv. 355

D. James MERRICK, Plaintiff-Appellant, v. FARMERS INSURANCE GROUP, a conglomerate insurance company consisting of Farmers Insurance Exchange, Fire Insurance Exchange, Farmers New World Life Insurance, Mid-Century Insurance Company and Farmers Insurance Company of Idaho Defendant-Appellee.

No. 88-3934.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 12, 1989.

Decided Jan. 3, 1990.

Beth M. Rivers, Donnelly, Huizenga, Wahl, Hagan & Hergt, P.C., Detroit, Mich., for plaintiff-appellant.

Bobbi K. Dominick, Elam, Burke & Boyd, Boise, Idaho, for defendant-appellee.

Appeal from the United States District Court for the District of idaho.

Before WRIGHT, WALLACE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

D. James Merrick ("Merrick") brought suit in the United States District Court for the District of Idaho claiming that Farmers Insurance Group ("Farmers") violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, by not promoting him due to his age and by firing him because he filed an age discrimination complaint with the State of Idaho. The district court granted summary judgment in favor of Farmers on the failure-to-promote claim. A jury returned a verdict in favor of Farmers on the retaliatory discharge claim. Merrick appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

Merrick began working for Farmers in December 1970. By March 1981, at the age of forty-nine, Merrick had advanced from his initial job as an underwriting trainee to Agricultural Sales Representative. Merrick generally received overall review ratings of "satisfactory" while in this latter position.

In May 1981, Farmers had an opening for a Division Area Manager ("DAM") in the Pocatello, Idaho region. Merrick asked his supervisor, Ted Wilsing, for help getting promoted to this job. Merrick claims that Wilsing recommended Merrick for the promotion and told Merrick that he would get the job. Instead, Craig Schienost, a twenty-five-year-old sales representative, got the job.

In September 1981, Merrick applied for promotion to a new position as Special Lines Representative ("SLR"). Farmers gave this job to Mick Hodges, a twenty-eight-year-old employee in the Claims Department.

As a result of Farmers' refusal to promote him to either DAM or SLR, Merrick filed an age discrimination complaint with the Idaho Department of Industrial and Labor Services on October 30, 1981. Merrick notified Farmers of the charge on November 13, 1981. Approximately three weeks later, following a Christmas party at which Farmers asserted Merrick had been guilty of gross misconduct, Farmers fired Merrick. Thereafter, Merrick filed this suit in district court.

ISSUES

In this appeal we consider the following issues:

1. Did the district court err by granting Farmers' motion for summary judgment on Merrick's failure-to-promote claim?

2. Did the district court commit reversible error in its evidentiary rulings during trial on the retaliatory discharge claim?

3. Did the district court commit reversible error in instructing the jury?

4. Is either party entitled to attorney fees on appeal?

ANALYSIS

A. The District Court Did Not Err by Granting Farmers' Motion for Summary Judgment on Merrick's Failure-to-Promote Claim

Merrick's failure-to-promote claim is a claim of disparate treatment under the ADEA. Such claims are analyzed by the same standard used to analyze disparate treatment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982). Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1484 (9th Cir.1986).

In a Title VII disparate treatment case, a plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.

Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), amended by, 784 F.2d 1407 (9th Cir.1986); see also Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir.1981) (citing similar language from Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). ¹

Farmers apparently concedes that Merrick established a prima facie case of age discrimination in its decision to promote younger persons instead of Merrick. Similarly, Merrick does not deny that Farmers proffered reasons which, assuming that they were not pretextual, would justify its promotional decisions. The parties focus on the issue whether Farmers' proffered reasons were pretextual.

To avoid summary judgment, Merrick must demonstrate a genuine issue of material fact as to pretext. Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir.1987). "A plaintiff can show pretext in two ways, 'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' " Id. (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095).

1. Division Area Manager ("DAM")

Farmers explains that its decision to promote Schienost, rather than Merrick, to the DAM position was justified because: (1) "Merrick ... did not command the respect necessary for that position, and did not maintain the positive demeanor necessary" and (2) Schienost had been recommended by Robert McClintick, the superior of Venables and Raney, the two Farmers employees responsible for the DAM selection. ²

Merrick puts forth several arguments to show that these proffered reasons are unworthy of credence. First, Merrick argues that McClintick's recommendation of Schienost is suspect, because McClintick had not interviewed Schienost and had met him only once. However, Merrick does not dispute McClintick's assertion that he relied on the advice of members of his staff in recommending Schienost. As the district court concluded, this reliance was not improper. Thus, the fact that McClintick was not intimately acquainted with Schienost is irrelevant.

Second, Merrick argues that Raney's decision to support Schienost's promotion instead of Merrick's was not credible. Merrick points to Raney's negative comments about Merrick without ever having interviewed Merrick, Raney's uncritical acceptance of McClintick's recommendation of Schienost, and the disparity between Raney's negative comments and Merrick's otherwise positive reviews.

However, as the district court noted, none of these facts is inconsistent with Farmers' proffered reasons for promoting Schienost instead of Merrick. Raney's decision to support Schienost's promotion, in part, because his supervisor recommended him, seems appropriate to us. Further, even though Raney did not personally interview Merrick, Merrick's desk was right outside Raney's office, thus giving Raney a firsthand view of Merrick's work habits and demeanor. As to any alleged inconsistencies between Raney's comments about Merrick and Merrick's other evaluations, Raney clearly focused on Merrick's leadership skills. That Raney found these particular skills lacking, while Merrick had received otherwise "satisfactory" reviews does not raise a triable issue of fact as to the credence of Farmers' reasons for selecting Schienost, and not Merrick, for the DAM position.

Third, Merrick argues that Farmers' reasons for not promoting him lack credibility, because these reasons were not documented until after the commencement of Merrick's suit. We disagree. That Raney waited to memorialize the reasons for his decision fails to implicate the reasons themselves. Clearly, Raney documented his reasons in response to Merrick's discrimination suit. But, as the district court noted this is not unusual. Merrick argues that the documented reasons for not promoting him should be disregarded in full because some of these reasons were unavailable at the time the promotion decision was made. We disagree. When the after-the-fact reasons are excised, sufficient reasons remain which justify Raney's decision to promote Schienost instead of Merrick.

Finally, we reach Merrick's primary argument, that he was better qualified than Schienost. The evidence of his qualifications includes the recommendation of his supervisor, Wilsing, Merrick's greater experience, and his somewhat better job performance. However, Merrick offers no evidence to refute Raney's assertion that Merrick lacked the professionalism and the attitude required for the DAM position. Raney had the opportunity to observe Merrick and had reviewed Merrick's personnel file on a previous occasion. Essentially, Merrick responds that Raney's testimony is not credible, but as we have noted, there is no support for this argument. Thus, Merrick failed to raise a triable issue of fact that Farmers' reasons for denying him the DAM position were pretextual.

2. Special Lines Representative ("SLR")

Wells, Farmers' executive in charge of selecting the new SLR, chose the younger Hodges over Merrick. Farmers explains that Wells chose Hodges because of Hodges' claims background. Merrick offers four arguments to show pretext.

Merrick first notes that Wells commented he chose Hodges because he was "a bright, intelligent, knowledgeable young man." Merrick argues this comment is sufficient to raise a triable issue of fact whether Wells refused to promote Merrick because of his age. Comments suggesting that the employer may have considered impermissible factors are clearly relevant to a disparate treatment claim. See Hansard v. Pepsi-Cola Metro....