Perry v. Kunz

Decision Date19 June 1989
Docket NumberNo. 87-2595-EM,87-2595-EM
Citation878 F.2d 1056
Parties50 Fair Empl.Prac.Cas. 175, 51 Empl. Prac. Dec. P 39,232 Laverne M. PERRY, Appellant, v. Joseph W. KUNZ, et al., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Doreen D. Dodson, St. Louis, Mo., for appellant.

Mary Stewart Tansey, Jefferson City, Mo., for appellees.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and WATERS, * District Judge.

H. FRANKLIN WATERS, District Judge.

Laverne M. Perry appeals the district court's granting of the defendant's motion for summary judgment in this age discrimination in employment case filed under the provisions of 29 U.S.C. Sec. 621 et seq.

Ms. Perry is a 65-year-old female employed by the Department of Mental Health of the State of Missouri as a food service helper from May, 1964, until April, 1984. During that time she worked at St. Louis Hospital on Arsenal Street from 1964 until 1974 and at defendant's Bellefontaine Habilitation Center from 1974 until 1984. She claims that, beginning in 1981, defendant institution and its superintendent, personnel officer, and two of her supervisors, all defendants in the case, engaged in a campaign to discriminate against her because of her race, color, and age, culminating in the termination of her employment in April of 1984.

The trial court accurately described in its published memorandum opinion dated November 3, 1987, 672 F.Supp. 1205, granting the motion for summary judgment, the procedural course that the matter took after the termination, as follows:

Shortly thereafter, and pursuant to the State Merit System Law, Chapter 36, R.S.Mo. (1987), plaintiff appealed her dismissal to the state Personnel Advisory Board (Board). After an evidentiary hearing, at which plaintiff, represented by counsel, testified, the Board found that she was dismissed for cause and affirmed her dismissal. In so doing, it specifically found that plaintiff 'was incompetent, inadequate, careless or inefficient in the performance of her work duties' and that she 'failed to meet [the] minimum standards' required of her job. Plaintiff then appealed the Board's decision to the Circuit Court of the City of St. Louis. On June 14, 1985, the court affirmed the Board's decision.

While pursuing her remedies under the State Merit System law, plaintiff filed a timely charge with the EEOC in which she alleged she was terminated from her employment as a result of age and race discrimination. On April 30, 1985, the EEOC issued plaintiff her right-to-sue letter and, within the ninety-day period prescribed by statute, plaintiff filed a pro se complaint in this Court. The Court appointed counsel for plaintiff who thereupon filed a four-count amended complaint on behalf of plaintiff seeking recovery under Title VII, 42 U.S.C. Sec. 2000e, et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq., 42 U.S.C. Sec. 1981 and 42 U.S.C. Sec. 1983.

The district court initially granted in part and denied in part a motion to dismiss or in the alternative for summary judgment, dismissing all claims except the ADEA claim, finding that claim was "an issue fresh for litigation." The dismissal of the claims other than the ADEA claim was not appealed and the propriety of those dismissals is not before this court.

Subsequently, approximately one week before a scheduled trial date of the ADEA issue, the district court granted a motion for summary judgment and awarded judgment in favor of the defendants on the age discrimination in employment claim, the only cause of action remaining in the lawsuit at that time.

The basis of the dismissal, in the words of the trial court, was:

In order to state a cause of action under the ADEA, plaintiff must establish a prima facie case of age discrimination by showing (1) that she was within the protected age group, (2) that she performed her job at a level that met her employer's legitimate expectations, (3) that she was terminated from her job, and (4) that her employer tried to replace her with someone else who would provide the same service or skill. Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir.1987); Clements v. General Accident Insurance Co. of America, 821 F.2d 489, 491 (8th Cir.1987); Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 289 (8th Cir.1982). If plaintiff does establish a prima facie case, then defendant has the burden of producing some legitimate non-discriminatory reason for the alleged discriminatory action. Raschick, at 1499; Halsell, 683 F.2d at 291. If she does not, the Court may award summary judgment against her. Raschick, supra (defendant employer entitled to summary judgment as plaintiff employee failed to establish a prima facie case of age discrimination). See also Halsell, supra (defendant employer entitled to directed verdict as plaintiff employee failed to establish a prima facie case of age discrimination).

Thus, to state a cause of action under the ADEA plaintiff must establish a prima facie case of age discrimination by showing, among other things, that her job performance met her employer's legitimate expectations. However, the identical fact issue was decided against her when the Board, in a decision affirmed by the Circuit Court of the City of St. Louis, specifically found that plaintiff 'was incompetent, inadequate, careless or inefficient in the performance of her work duties' and that she 'failed to meet [the] minimum standards' required of her job. As the issue decided by the Board is identical to the issue plaintiff is required to establish in the present action, plaintiff is collaterally estopped from relitigating the issue here and consequently cannot state a cause of action under the ADEA.

As authority for its ruling in relation to the issue preclusion determination, the court cited Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982); Soldiers of the Cross v. Federal Deposit Insurance Corp., 560 F.Supp. 6, 8 (E.D.Mo.1982); Bank Building & Equipment Corp. v. Director of Revenue, 687 S.W.2d 168 (Mo.1985); Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713, 719 (Mo.1979); 28 U.S.C. Sec. 1738. 1

The district court's issue preclusion analysis was eminently correct, but the court has concluded that the district court's decision granting the motion for summary judgment and dismissing the case must be reversed. That is so because the trial court failed to recognize that an ADEA plaintiff is not required to prove a prima facie case utilizing only the so-called McDonnell Douglas method of proof, but may utilize either that indirect method of proof or may attempt to prove that age was a determining factor in defendant's decision to terminate her utilizing direct evidence. Since that is true, plaintiff in this case was not necessarily precluded from making a prima facie case simply because she could not prove one of the elements of the McDonnell Douglas test.

While this court apparently has not had occasion in the past to discuss in any detail these dual and alternative methods, that is clearly the law as recognized in our decisions in Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061 (8th Cir.1988); Dace v. ACF Industries, Inc., 722 F.2d 374 (8th Cir.1983); and DeHues v. Western Elec. Co., Inc., 710 F.2d 1344 (8th Cir.1983). In DeHuse, supra, in a per curiam opinion, this court said:

The four criteria set out in McDonnell Douglas provide one method of establishing age discrimination in employment under the ADEA. (citations omitted). The Supreme Court has made it clear, however, that McDonnell Douglas was not intended to be 'rigid, mechanized, or ritualistic,' Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), or the exclusive method for proving a claim of discrimination. (citations omitted). Age discrimination may be proved by any direct or indirect evidence 'without resort to any special judicially created presumptions or inferences related to the evidence.'

Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir.1982).

DeHues, 710 F.2d at 1347. In Brooks, supra, at p. 1063, and Dace, supra, at p. 377, we also recognized the dual and alternative proof approach.

Other jurisdictions which have been more squarely faced with this issue than this court have clearly enunciated this proposition. In 2 Larson, Employment Discrimination, Sec. 50.62 at pp. 10-67 to 10-68 (1988) the author says:

As the Supreme Court has stated, in an ADEA case, 'the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.' (citing Trans World Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). The lower courts have also applied this rule in cases under Sec. 1981, (citing cases), Sec. 1983, (citing cases), and Title VII (citing cases). The reason for the rule is simple: the McDonnell Douglas test was designed merely to aid in discovering discrimination where only circumstantial evidence is available.

The plaintiff's proof by means of direct evidence of discrimination does not merely fulfill his burden of showing a prima facie case; it suffices to make his entire case and throws the burden on the defendant of proving, at least by a preponderance of the evidence, (citing cases) that it would have rejected the plaintiff even in the absence of discrimination. (citing cases).

One of the early cases directly facing and deciding this issue is the Eleventh Circuit decision written by Chief Judge Godbold, in Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir.1982). The court said:

Moreover, where a case for discrimination is proved by direct evidence it is incorrect to rely on a McDonnell Douglas form of rebuttal. Under the McDonnell Douglas test plaintiff establishes a prima facie case when the trier of fact believes the four circumstances outlined above which give rise to an inference of...

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