Nelson v. J.C. Penney Co., Inc.

• Decision Date: 04 March 1996
• Docket Number: Nos. 95-1253,95-1305,s. 95-1253
• Citation: 75 F.3d 343
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1328, 67 Empl. Prac. Dec. P 43,894 Dale NELSON, Appellee/Cross-Appellant, v. J.C. PENNEY COMPANY, INC., Appellant/Cross-Appellee. Equal Employment Opportunity Commission, Amicus Curiae. Eighth Circuit
• Court: U.S. Court of Appeals — Eighth Circuit

Page 343

75 F.3d 343

69 Fair Empl.Prac.Cas. (BNA) 1328,

67 Empl. Prac. Dec. P 43,894

Dale NELSON, Appellee/Cross-Appellant, v. J.C. PENNEY COMPANY, INC., Appellant/Cross-Appellee Equal Employment Opportunity Commission, Amicus Curiae.

Nos. 95-1253, 95-1305.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1995.

Decided Jan. 24, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied March 4, 1996.

P. Kevin Connelly, Chicago, IL, argued (Michael J. Sheehan and Michael H. Cramer, Chicago, IL and Douglas L. Phillips, Sioux City, IA, on the brief), for appellant.

James C. Zalewski, Lincoln, NE, argued (Emmanual S. Bikakis, Sioux City, IA, on the brief), for appellee.

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Dale Nelson began working for J.C. Penney department stores in 1960. In 1983, he became the manager of a store in Iowa. In late 1990, he was transferred to become the manager of a smaller store in North Dakota. Four and a half months later, shortly after he turned 55, he was fired.

Mr. Nelson sued Penney in federal court in Iowa in late 1991, alleging age discrimination, retaliatory discharge (he had filed an age discrimination charge with the appropriate administrative agency a month before he was fired), and discharge in violation of the Employee Retirement Income Security Act (ERISA) (all under federal law), and disability discrimination, invasion of privacy, intentional infliction of emotional distress, and defamation (under Iowa law).

At an eight-day mixed jury/bench trial in mid-1993, the trial court dismissed the claims of invasion of privacy and intentional infliction of emotional distress for failure to state a claim. The trial court did not instruct the jury on the claim of defamation. The jury then found for Mr. Nelson on the age discrimination and retaliatory discharge claims. The trial court found for Penney on the claims of discharge in violation of ERISA and disability discrimination. See Nelson v. J.C. Penney Co., 858 F.Supp. 914 (N.D.Iowa 1994). After denying post-trial motions, the trial court entered judgment for Mr. Nelson in the amount of approximately $930,000. Both sides appeal. We affirm in part and reverse in part and remand the case for the entry of the appropriate judgments.

I.

Penney contended that Mr. Nelson was fired, after repeated warnings, because of an abrasive and intimidating management style. Mr. Nelson contended that Penney's stated reason for firing him was merely a pretext for age discrimination. The trial court denied Penney's motions for judgment as a matter of law, both at trial and post-trial, on the age discrimination claim. Penney appeals those denials. In reviewing the denial of a defendant's motion for judgment as a matter of law in an age discrimination case submitted to a jury, we "focus on the ultimate factual issue of whether the employer intentionally discriminated against the employee on account of age." Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 800 (8th Cir.1994). That process requires an evaluation of three different questions. Id. at 801.

First, we determine whether the plaintiff established a prima facie case-- i.e., that he was "within the protected age group, ... [that] he was performing his job at a level that met his employer's legitimate expectations, ... [that] he was discharged, and ... [that] his employer attempted to replace him." Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir.1993). For the purposes of this appeal, we assume that Mr. Nelson established a prima facie case and thus created a presumption of unlawful age discrimination by Penney. Nelson, 26 F.3d at 801. The existence of that presumption placed an obligation upon Penney to rebut it, if possible. Id.

To rebut a presumption of unlawful age discrimination created by a plaintiff's prima facie case, an employer has to offer reasons for its actions that, if believed by a jury, would allow the jury to conclude that the plaintiff's age was not the reason for his termination. Id. Penney did so. There was evidence that many store managers older than Mr. Nelson were still working and had even been promoted. There was additional, and considerable, evidence of Mr. Nelson's difficulties in dealing with his employees in Iowa and of a continuation of those difficulties after his transfer to North Dakota (there was, moreover, no evidence that Penney failed to discipline younger store managers with the same or similar difficulties). Finally, both of the supervisors who participated in the decision to fire Mr. Nelson denied that his age was a factor in that decision.

Because Penney presented evidence of reasons other than age for its decision to terminate Mr. Nelson, it is considered to have rebutted his prima facie case. Id. The presumption of unlawful age discrimination therefore drops out of the case, id., and we evaluate, last, only whether Mr. Nelson presented evidence "capable of proving that the real reason for his termination was discrimination based on age." Id. Such evidence must include " 'conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude' " of an extent " 'sufficient to permit the [jury] to infer that that attitude was more likely than not a motivating factor in the employer's decision.' " Id. at 800, quoting Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d 171, 182 (2d Cir.1992). With that standard in mind, we examine the evidence offered by Mr. Nelson as the basis for his age discrimination claim. Nelson, 26 F.3d at 802.

We have read the entire trial transcript with care. As far as we can tell, Mr. Nelson presented four specific bases for his claim of age discrimination. The first was the fact that when he was transferred to North Dakota, and again when he was fired, his replacements were younger than he was. Then, late in 1990, around the time that Mr. Nelson was transferred to the store in North Dakota, the district manager for Iowa (Mr. Nelson's prior supervisor) called the district manager for North Dakota (Mr. Nelson's new supervisor) to advise him about Mr. Nelson's background. During that call, the district manager for North Dakota made notes, among which he included the information that Mr. Nelson was 54 years old. That inclusion was the second basis for Mr. Nelson's age discrimination claim. At a lunch in early 1991 attended by Mr. Nelson, his wife, the district manager for North Dakota, and two other Penney employees, the district manager told Mr. Nelson that he knew Mr. Nelson's age. That statement was the third basis for Mr. Nelson's age discrimination claim. Finally, although Mr. Nelson received negative comments on his management style from various supervisors earlier in his career, he was never otherwise disciplined or transferred because of them until he was 54 years old.

It is true that the replacements for Mr. Nelson at both stores were younger than he was; at the Iowa store, however, the age difference between Mr. Nelson and his successor was only one month. It is also true that the district manager for North Dakota wrote down Mr. Nelson's age when discussing him with the district manager for Iowa. But the fact that Mr. Nelson's replacement in North Dakota was significantly younger than he possesses, in our view, insufficient probative value to persuade a reasonable jury that Mr. Nelson was discriminated against. Such a fact is consistent with age discrimination, but it cannot alone support a reasonable inference of it. Nor do we believe that the fact that the district manager knew Mr. Nelson's age could furnish the basis for a reasonable inference that his age was a basis for his termination. A fact finder may not simply convert a condition that is necessary for a finding of liability (here, knowledge of a plaintiff's age) into one that is sufficient for such a finding.

We have said that in "some cases, evidence that an employer's proffered nondiscriminatory explanation is wholly without merit or obviously contrived might serve double duty, ... permitting an inference that age discrimination was a motivating factor in a plaintiff's termination." Id. at 801. This is not such a case. There was no conflicting testimony or other substantial evidence of deviousness on the part of the employer, see id. at 802, from which a reasonable fact finder could conclude that the employer's proffered reasons for Mr. Nelson's termination were pretextual. See also Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1110 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). We do not think that the simple fact that the employer's testimony is necessarily self-interested is enough under our previous cases to allow the jury to find that the employer's proffered reasons were pretextual. If it were, then any case in which the plaintiff makes a prima facie case is a submissible one because it must go to the jury whether or not the employer produces bona fide reasons for its actions--and we have never held that. Mr. Nelson's personnel file did contain occasional comments from earlier supervisors about his need to improve his relationships with his employees. There is no evidence in the record, however, showing that any of those remarks was preceded by the number, intensity, or scope of employee complaints that occurred in the year before Mr. Nelson was fired.

In view of all of these circumstances, and considering the insubstantial character of the evidence presented with respect to age discrimination, we cannot agree with the trial court that Mr. Nelson established a submissible case that age " 'actually motivated ' " Penney's decision to fire him. Nelson, 26 F.3d at 800, quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (emphasis supplied in Nelson ). We see no...