Neely v. Delta Brick and Tile Co., Inc.

• Decision Date: 02 June 1987
• Docket Number: No. 86-4428,86-4428
• Citation: 817 F.2d 1224
• Parties: 43 Fair Empl.Prac.Cas. 1698, 43 Empl. Prac. Dec. P 37,175 Hilburn Joe NEELY, Plaintiff-Appellant v. DELTA BRICK AND TILE COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1224

817 F.2d 1224

43 Fair Empl.Prac.Cas. 1698,

43 Empl. Prac. Dec. P 37,175

Hilburn Joe NEELY, Plaintiff-Appellant v. DELTA BRICK AND TILE COMPANY, INC., Defendant-Appellee.

No. 86-4428.

United States Court of Appeals Fifth Circuit.

June 2, 1987.

Thomas J. Lowe, Jr., Jackson, Miss., Charles D. Easley, Jr., Walters & Easley, North Columbus, Miss., for plaintiff-appellant.

Barbara Childs Wallace, J. Leray McNamara, Wise, Carter, Child & Caraway, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, GEE, and JONES, Circuit Judges.

PER CURIAM:

Hilburn Joe Neely, born in October 1940, appeals from a judgment n.o.v. entered by the trial judge, 640 F.Supp. 435, in his age discrimination action; and we affirm.

The governing law is familiar. We are to sustain the judgment n.o.v. if, considering all of the record evidence, and viewing it most favorably to the party opposing the motion for judgment n.o.v., the evidence and inferences from it point so strongly in favor of the motion that reasonable jurors could not have arrived at a contrary verdict. Boeing Company v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc). By way of counterpoint, it is useful to recall the competing rule rejected by Judge Ainsworth's landmark opinion in Boeing: that a jury verdict must remain undisturbed unless "there is a complete absence of probative facts to support the conclusion reached," the so-called "scintilla" rule. See Planters Manufacturing Co. v. Protection Mnt. Ins. Co., 380 F.2d 869, 872 (5th Cir.1967), cert. denied, 389 U.S. 930, 88 S.Ct. 293, 19 L.Ed.2d 282, quoting from the FELA case of Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 743, 90 L.Ed. 916 (1946). The en banc decision in Boeing overruled Planters in our Circuit, and the scintilla rule is not our law. Our rule, instead, is that if the record evidence supports more than one reasonable view, the jury's choice among these must be respected. The evidence in this case supports no such choice.

Defendant Delta manufactures building bricks from clay. Appellant Neely went to work at its brickyard, then owned by a predecessor in interest, as a shipping clerk when he was 18. Around 1977, after rising through a series of jobs, he became plant superintendent at age 37--a position that he held for six years. At that time, in 1983, he was demoted to a series of lesser positions, although retaining his superintendent's salary. At last, in April 1984, Neely was discharged at age 43 and replaced by another 40-odd year old slightly younger than he.

Neely was his own, sole fact witness, testifying to the foregoing and adding that his file contained no written reprimands. In addition, he asserted that on the occasion of his termination, he was told by the bearer of bad tidings that Delta was bringing in new pe...