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

• Decision Date: 21 November 1995
• Docket Number: 95-1305,Nos. 95-1253,s. 95-1253
• Citation: 70 F.3d 962
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 468, 67 Empl. Prac. Dec. P 43,823 Dale NELSON, Appellee/Cross-Appellant, v. J.C. PENNEY COMPANY, INC., Appellant/Cross-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 962

70 F.3d 962

69 Fair Empl.Prac.Cas. (BNA) 468,

67 Empl. Prac. Dec. P 43,823

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 Nov. 21, 1995.

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. The facts that Mr. Nelson's replacement in North Dakota was significantly younger than he and that the district manager for North Dakota took note of Mr. Nelson's age have some probative value, but that value appears to us to be almost negligible in light of the overwhelming amount of other evidence to the effect that Mr. Nelson's difficulties in dealing with employees were both serious and longstanding.

It is also clear from the testimony of both Mr. Nelson and the district manager for North Dakota that the district manager's remark about Mr. Nelson's age at the lunch was directly precipitated by a discussion of the district manager's own birthday, which he had just celebrated, and by the coincidence that Mr. Nelson's birthday was one calendar day apart from the district manager's birthday. Since the purposes of the meeting on the day of the lunch in question were to discuss a new pay plan based on salary, store size, and amount of store sales and to warn Mr. Nelson again about his management style, it is obvious (and there is no contradictory evidence in the record) that the district manager had recently consulted Mr. Nelson's personnel file and had noticed the coincidental birthdays. Even in the harshest light, we see nothing sinister in that configuration of events.

Finally, 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. Id. at 800, quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, ----, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (emphasis supplied in Nelson ). We see no evidence " 'directly reflecting the alleged discriminatory attitude.' " Nelson, 26 F.3d at 800, quoting Ostrowski, 968 F.2d at 182. We therefore vacate the judgment on the age discrimination claim and remand the case for the entry of judgment for Penney on that claim.

II.

The evidence of retaliatory discharge was even less substantial, consisting only of the facts that Mr. Nelson was fired a month after filing an age discrimination charge with the appropriate administrative agency and that both of the supervisors involved in firing Mr. Nelson knew of that charge. There is no evidence in the record that others who filed age discrimination...