Nolting v. Yellow Freight System, Inc.
| Decision Date | 25 August 1986 |
| Docket Number | No. 85-1711,85-1711 |
| Citation | 799 F.2d 1192 |
| Parties | 41 Fair Empl.Prac.Cas. 1068, 41 Empl. Prac. Dec. P 36,598 Mary E. NOLTING, Appellant, v. YELLOW FREIGHT SYSTEM, INC., Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mark W. Cowing, Kansas City, Mo., for appellant.
Ronald E. Sandhous, Overland Park, Kan., for appellee.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Mary Nolting appeals the order of the district court 1 dismissing her claim of age discrimination against her former employer, Yellow Freight System, Inc. (Yellow Freight). After a six-day trial, a jury rendered a verdict in favor of Yellow Freight. On appeal, Nolting contends that the district court erred in submitting three instructions to the jury and in denying her motion to reconsider a partial summary judgment order. For the reasons set forth below, we affirm.
Mary Nolting was born on August 12, 1929. Yellow Freight hired her in August of 1957 to work as a data entry operator. She continued in this position until her layoff and termination in 1980.
Due to adverse economic conditions, Yellow Freight in 1980 implemented a nationwide reduction in force. At the time of the personnel reduction, the data entry department consisted of thirty-six employees, eleven of whom were between forty and seventy years of age. Yellow Freight based the layoff and termination decisions on the results of an "Operator Evaluation System" previously devised by Yellow Freight to measure job performance and productivity primarily for determining pay increases. The system evaluated five factors: non-paid absence, non-productive time, operator performance, keystrokes per hour, and cost per thousand keystrokes. The system did not measure the operators' accuracy (rate of keystroke errors). By assigning points to each factor based upon the operator's monthly performance, the Operator Evaluation System yielded a "weighted average" score.
In anticipation of the reduction in force, Yellow Freight determined each operator's "weighted average" score for the calendar year 1979, and ranked the operators according to their scores. In January of 1980, Yellow Freight terminated the five operators with the lowest scores, and temporarily laid off eleven operators with the next lowest scores. Because Nolting had the ninth lowest score, she was one of the operators laid off. Of the sixteen employees affected by this action, nine were between forty and seventy years of age: two were terminated and seven were placed on layoffs.
Pursuant to Yellow Freight's personnel policy, employees on temporary layoff retained recall rights for six months but were terminated if not recalled within that time. From January through July of 1980, Yellow Freight's business continued to decline. 2 During this period some of the operators who had been laid off resigned and one operator not laid off resigned. Yellow Freight recalled some of the operators on layoff according to their weighted average ranking, but none were recalled after April of 1980. On June 25, 1980, Yellow Freight notified Nolting by letter that she would be terminated effective July 9, 1980. As of that date, Yellow Freight also terminated four other operators who had never been recalled. All of the operators terminated in July were between forty and seventy years of age. After these terminations, Yellow Freight had retained only twenty-two operators, six of whom were between the ages of forty and seventy. 3
Believing that her layoff and discharge violated the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34 (ADEA or the Act), Nolting retained attorney James Brown in July of 1980 to represent her. Although Brown told Nolting that he had filed the action in 1980, he did not in fact file the complaint until July 8, 1982. Yellow Freight responded that the statute of limitations barred the action because the applicable two-year statute of limitations 4 began to run when the plaintiff received notice of an alleged violation of the Act, and more than two years had elapsed from the date of Yellow Freight's termination letter (June 25, 1980) to the July 8, 1982 filing. In opposition to the summary judgment motion, Nolting's attorney conceded that "Plaintiff will not contest that her claim is barred by the two-year statute of limitations." On March 28, 1983, the district court granted Yellow Freight's motion for summary judgment except as to Nolting's claim of a willful violation of the Act to which a three-year statute of limitation applies. 5
In February of 1984, Nolting retained different counsel to represent her in this action. On June 7, 1984, the district court ordered the parties to complete all pretrial filings by June 17, 1984. The district court held a final pretrial conference on August 29, 1984. The following day Nolting's attorney filed a motion to reinstate the original claim under the two-year statute of limitations, or for reconsideration of the partial summary judgment order. Concluding that the motion had been filed too late in the action, the district court denied it on the first day of trial.
At trial, Nolting sought to prove her claim of age discrimination under the disparate impact theory. It was undisputed that Yellow Freight determined the terminations and layoffs solely upon the operators' weighted average scores. Nolting offered the expert testimony of Dr. Robert Carlson, a statistician. A major premise of Carlson's analysis was that the operators were equal in all respects other than age. Accordingly, based upon the age of each operator as of January 1, 1980, Carlson compared the number of operators between forty and seventy years of age affected by the reduction in force to the number of younger operators similarly affected. Taking into account all of the data entry operator layoffs and terminations in January and July of 1980, Nolting's expert determined that the reduction in force had a more severe impact on operators between forty and seventy years of age than on younger operators. Carlson concluded that the number or percentage of operators in the protected age group affected by the two reductions was greater than could have occurred by chance, and could not have occurred without consideration of another factor.
In the opinion of Nolting's expert, the Operator Evaluation System heavily emphasized speed, and the number of keystrokes per hour constituted the most important single factor in the "weighted score." Carlson found a statistically significant relationship between the operators' age and number of keystrokes per hour: operators in the protected age group produced an average of 14,400 keystrokes per hour as compared with an average of 16,540 keystrokes per hour produced by younger operators. From this, Nolting's expert testified that Yellow Freight's reliance on the weighted scores in termination and layoff decisions produced a disparate impact on workers between forty and seventy years of age.
In response, Yellow Freight offered the expert opinion of Dr. Jaris Flora, who is also a statistician. Flora criticized the type of tests and the methodology employed by Nolting's expert, in particular, because Carlson (1) improperly commingled the results of two separate events (the job actions in January and July of 1980) into a single event; and (2) failed to consider the ages of operators as of July 1980 (at which time three of the operators retained by Yellow Freight had turned forty). Based on a multiple regression analysis, Yellow Freight's expert determined that no statistically significant relationship existed between an operator's age and weighted score. Further, based on this analysis, Flora adjusted the weighted average scores to be completely age-neutral. Reranking the operators based upon these age-neutral scores produced virtually no change in the ranking order of the operators. Specifically, even with an age adjusted score, Nolting had the ninth lowest score of all the operators and would have not have retained her job. 6
Flora further testified that the Operator Evaluation System served Yellow Freight's objective of retaining the most productive employees. Flora multiplied each operator's keystrokes per hour by her productive hours and divided that figure by the total number of hours worked to measure the number of keystrokes per production hour. Flora designed this alternative measurement to rank the operators solely on the basis of productivity. Again, had Yellow Freight employed this measurement, instead of the weighted scores, virtually the same group of employees would have been retained. Flora also determined that the group of operators terminated produced an average of 10,824 keystrokes per production hour, while the group of operators retained produced an average of 13,706 keystrokes per production hour. Based on this comparison, Flora testified that the operators retained by Yellow Freight were capable of producing an average of 26.6% more work than the group of operators terminated.
To refute Carlson's opinion that "keystrokes per hour" constituted the most significant factor in the termination decisions, Flora compared the group of operators who were terminated (in January and July of 1980) with the group of operators retained by Yellow Freight. Based on a discriminate analysis comprised of seven variables, including the five elements of the Operator Evaluation System plus the factors of seniority and age, Flora concluded that the only two factors predictive of termination were the operator performance score (which compared the operator's keystroke rate against the department's average keystroke rate) and the unproductive time score (which measured the number of hours spent on the job not performing data entry functions). In sum, Yellow Freight's expert concluded that Yellow Freight had terminated operators not on the basis...
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