Phelps v. Yale Sec., Inc.

Decision Date26 February 1993
Docket NumberNo. 92-5561,92-5561
Citation986 F.2d 1020
Parties61 Fair Empl.Prac.Cas. (BNA) 337, 61 Empl. Prac. Dec. P 42,074 Sarah N. PHELPS, Plaintiff-Appellant, v. YALE SECURITY, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Perry H. Windle, III, David A. Burkhalter, II (argued and briefed), Burkhalter & Windle, Knoxville, TN, for plaintiff-appellant.

Robert L. Thompson (argued and briefed), William M. Earnest (briefed), Mark D. Halverson (briefed), Elarbee, Thompson & Trapnell, Atlanta, GA, Donald F. Paine, Harold T. Pinkley, Paine, Swiney & Tarwater, Knoxville, TN, for defendant-appellee.

Before: MARTIN, MILBURN and NORRIS, Circuit Judges.

BOYCE F. MARTIN, JR., Circuit Judge.

Sarah N. Phelps appeals the judgment notwithstanding the verdict in favor of Yale Security, Inc., in this action under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Phelps requests that the jury verdict be reinstated. We affirm the judgment of the district court.

Sarah N. Phelps was employed at Yale Security from June 16, 1977 until July 8, 1988, when she was dismissed at age fifty-five pursuant to an alleged reduction in work force. Phelps worked at a plant in Lenoir City, Tennessee, in which Yale Security manufactures commercial locks and related hardware. Phelps' position at Yale Security changed during her period of employment, but she always remained on the administrative staff as a salaried employee. Between 1977 and 1987, Phelps worked as a secretary for three successive plant managers. She worked for Avery Petty, the last of the three plant managers, for thirteen months until being transferred in November 1987 to work for Ray McCulloch, the factory manager. In McCulloch's office, Phelps' job classification was changed to stenographer although she did not receive a reduction in pay. The reason proffered by Petty for transferring Phelps out of the secretarial job was that he believed that she was divulging confidential information regarding employee salaries. Petty hired a thirty-nine-year-old secretary several months later.

Yale Security laid off Phelps and three other full-time employees on July 8, 1988. Company management made this reduction to meet a goal of a 3-to-1 ratio of direct manufacturing employees to administrative staff. Mike Robinson of Yale Security's human resources department asked the Lenoir City department leaders to determine whether any positions could be eliminated without damaging the efficiency of administrative operations. In response, McCulloch suggested that Yale Security eliminate Phelps' position as a stenographer. McCulloch also eliminated a dispatcher position held by twenty-five-year-old David Fickey. The accounting department removed the chief timekeeper position occupied by fifty-three year-old Coy Plemmons. The production planning department eliminated the designer position held by Melvin Pressley, age fifty-six. In addition, Yale Security terminated the temporary employment of twenty-nine year-old Lynn Harvey.

Although Phelps requested a transfer to any available position, Yale Security did not transfer or rehire her or the other two workers in the protected class. Instead, when some openings developed, it rehired the two youngest laid-off workers. In August 1988, Yale Security created a new dispatcher position and filled two customer service positions. Phelps specifically asked about a dispatcher position at her termination meeting. However, twenty-five year-old David Fickey was rehired as the new dispatcher. Phelps also believed that she was qualified to be a customer service clerk. Nonetheless, Lynn Harvey was rehired as a customer service clerk.

On July 9, 1990, Phelps filed the present action against Yale Security on the basis of age discrimination in regard to her transfer and ultimate discharge. Yale Security filed a motion for summary judgment on April 21, 1991, and the district court denied the motion on June 26, 1991. On November 25, 26, and 27, 1991, the case was tried before a jury. The jury returned a verdict for Phelps and awarded her $121,418 in back pay and future compensation.

On December 12, 1991, Yale Security filed a motion for judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), or, in the alternative, for a new trial. On April 10, 1992, the district court granted Yale Security's motion and entered judgment in favor of Yale Security. The district court also conditionally granted the alternative motion for a new trial in the event that the judgment for Yale Security is reversed. In this timely appeal, Phelps contends that the jury verdict should stand.

This court's standard of review of a judgment notwithstanding the verdict is identical to the standard used by the district court. Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991). We do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 154-55 (6th Cir.1988). Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Id. The motion should be granted, and we should affirm if reasonable minds could not come to a conclusion other than one in favor of the movant. Id.

As a starting point, the Age Discrimination in Employment Act declares it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). A plaintiff who brings a claim under the Age Discrimination in Employment Act must prove that age was a determining factor in the adverse action that the employer took against him or her. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229-30 (6th Cir.1990) (citations omitted). We recognize, as have all the courts faced with claims of age or sex discrimination, that there is no fixed, easy formula to prove the circumstances of the discrimination. See Scales v. J.C. Bradford and Co., 925 F.2d 901 (6th Cir.1991); Yates v. Avco Corp., 819 F.2d 630 (6th Cir.1987). Such claims generally involve nebulous, circumstantial evidence, but our review must start somewhere.

Sarah N. Phelps' central argument is that age was a determining factor in Yale Security's decision to transfer and/or terminate her. The district court disagreed as do we. In such a case, the plaintiff is required to produce evidence that age was a factor in the employer's decision to discharge the plaintiff and that but for this factor, the plaintiff would not have been discharged. Chappell v. GTE Products Corp., 803 F.2d 261, 265-266, (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). Phelps contends that she presented sufficient evidence to sustain the verdict when the evidence is viewed in the light most favorable to her. In a discharge case, when the plaintiff lacks direct evidence of discrimination, a plaintiff establishes a prima facie case of age discrimination by showing: (1) he or she was a member of the protected class; (2) he or she was discharged; (3) he or she was qualified for the position; and (4) he or she was replaced by a younger person. Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir.1982). The protected class consists of all individuals of at least forty years of age. 29 U.S.C. § 631. In a case arising out of a work force reduction, the fourth requirement is modified so that the plaintiff must also demonstrate some "direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990).

In Brownlow v. Edgecomb Metals, Co., 867 F.2d 960, 963 (6th Cir.1989), this court held that it need not review the sufficiency of the plaintiff's prima facie case and that it may instead address the ultimate issue of whether the plaintiff has established discrimination. Therefore, we assume that Phelps established a prima facie case, and we move on to the ultimate question of whether Phelps established that age was a determining factor in Yale Security's actions.

Phelps contends that the business reasons suggested by Yale Security for her transfer and discharge were pretextual. In order to reach this question, one must go through the following analysis. Assuming that a former employee has established a prima facie case of age discrimination, the burden of production of evidence shifts to the employer to articulate some legitimate nondiscriminatory reason for not retaining the employee. Danielson v. City of Lorain, 938 F.2d 681, 683 (6th Cir.1991). In this case, Yale Security asserts that it transferred Phelps because of an alleged confidentiality problem and that it discharged her because it wanted to reach a targeted ratio of manufacturing workers to administrators. Once Yale Security produces legitimate nondiscriminatory reasons, the burden of proof shifts back to Phelps to show that Yale Security's reasons were merely pretexts for age discrimination. See id. In the alternative, Phelps argues that even if the nondiscriminatory reasons are accurate, Yale Security had mixed motives and that it would not have discharged her without an additional discriminatory motive. The burden of production shifts throughout this analysis, but the burden of persuasion remains at all times with Phelps. Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1179-80 (6th Cir.1983).

In regard to the assertion that she was wrongfully transferred, Phelps' claim is untimely. The district court correctly decided that Phelps did not...

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