Philipp v. ANR Freight System, Inc.

• Decision Date: 10 October 1995
• Docket Number: 94-1187 and 94-1191,Nos. 93-3993,s. 93-3993
• Citation: 61 F.3d 669
• Parties: 66 Empl. Prac. Dec. P 43,719 Francis L. PHILIPP, Appellant/Cross-Appellee, v. ANR FREIGHT SYSTEM, INC., Appellee/Cross-Appellant,
• Court: U.S. Court of Appeals — Eighth Circuit

Page 669

61 F.3d 669

66 Empl. Prac. Dec. P 43,719

Francis L. PHILIPP, Appellant/Cross-Appellee, v. ANR FREIGHT SYSTEM, INC., Appellee/Cross-Appellant,

Nos. 93-3993, 94-1187 and 94-1191.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1995.

Decided Aug. 8, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 10, 1995.

Karen K. Howard, Kansas City, MO, argued (Ann E. Robards and Gwen G. Caranchini, Kansas City, MO, on the brief), for appellant.

R. Kent Sellers, Kansas City, MO, argued (John J. Yates and Jean Paul Bradshaw, II, Kansas City, MO, on the brief), for appellee.

Before LOKEN, Circuit Judge, ROSS and JOHN R. GIBSON, Senior Circuit Judges.

ROSS, Senior Circuit Judge.

I.

This action for legal and equitable relief arises from two cases filed by Francis L. Philipp against his former employer, ANR Freight System, Inc. (ANR), under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (ADEA). On November 24, 1986, Philipp filed the initial complaint, alleging he was discriminated against because of his age when he was demoted from his position of operations manager to dock supervisor. This first case resulted in a jury verdict in favor of ANR. On appeal, this court reversed and remanded the case for trial, concluding that the district court had improperly excluded evidence of other ADEA cases against ANR. Phillip ¹ v. ANR Freight Sys., Inc., 945 F.2d 1054, 1056 (8th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 81, 121 L.Ed.2d 45 (1992) (Philipp I ). On March 17, 1992, while Philipp I was proceeding on appeal, Philipp filed a second age discrimination case against ANR arising from his May 30, 1990 discharge and the failure of ANR to rehire him (Philipp II ). Upon remand, Philipp I was consolidated with Philipp II and both cases were tried to a jury. On May 7, 1993, a jury returned verdicts in favor of Philipp on his original demotion claim as well as his subsequently filed retaliatory failure to rehire claim. The jury awarded damages of $24,658.00 and $45,057.12, respectively. The jury found in ANR's favor on Philipp's discharge claims, concluding that Philipp was terminated as a part of ANR's reduction in force. Following post-trial motions, the district court awarded Philipp part of the front pay and benefits sought, permitted the submission of attorneys' fees, but denied Philipp's request for prejudgment interest.

In this appeal, Philipp challenges the district court's admission of evidence of ANR's poor financial condition to explain the reason for Philipp's discharge as part of a reduction in force. Philipp also argues the court erred in ordering reinstatement rather than front pay, failing to apply a mixed-motive analysis to his discharge claims, failing to award prejudgment interest, and reducing the amount of attorneys' fees. On cross appeal, ANR argues the district court erred in admitting evidence of other age discrimination lawsuits against ANR and erred in failing to enter judgment as a matter of law for ANR on Philipp's retaliatory refusal to rehire claim. After a careful review of the briefs, record, and arguments of the parties, we affirm the judgment of the district court.

II.

First, Philipp contends the court erred in admitting evidence of ANR's financial condition as a sufficient reason in itself to explain Philipp's discharge as part of a reduction in force. The district court allowed evidence that ANR lost nearly $15 million in the last three quarters of 1989 followed by an $11.4 million loss in the first quarter of 1990. After attempts to sell or merge ANR failed, management implemented a rapid and dramatic downsizing of the company. The number of ANR terminals nationwide went from 222 to 45. Approximately 4,000 of ANR's 6,000 employees were laid off. Terminal manager Richard Stiles was allowed to retain five salaried managerial employees in addition to himself. He chose to retain Ron Howe as assistant terminal manager, the terminal secretary, and the most senior incumbent manager from the terminal's three departments: road dispatch, city dispatch and the dock. In the dock area, where Philipp was also assigned, Stiles retained Robert Willis, the most senior supervisor in the department, who had worked for ANR or its predecessors since 1958. Willis was older and had more seniority with ANR and more years in the position of dock supervisor than Philipp.

Philipp now argues that ANR retained younger and less experienced employees to perform the same job duties that he had been performing at the time of his termination. For example, he argues he should have been retained and transferred to supervisor of city dispatch instead of Dan Robertson who was younger and less experienced. He claims that "adverse economic conditions" resulting in a reduction of force is insufficient in itself to rebut Philipp's prima facie case, and instead that the district court should have required ANR to show why it retained younger, less experienced employees when he was terminated.

Contrary to Philipp's assertions, however, ANR showed not only that adverse economic conditions resulted in the massive reduction in force at the time of Philipp's discharge, but also that the method for choosing employees to be retained following the reduction in force was nondiscriminatory. Richard Stiles testified that he retained the most senior incumbent manager from each department in order to have a "strong," "already trained" crew. Stiles testified that he did not consider transferring Philipp to city dispatch instead of termination, even though Philipp had significant prior experience in city dispatch, because "customers were just flying away from us" and Philipp did not have the established customer relationships that ANR needed to prevent the loss of more customers. We conclude that ANR adequately articulated a legitimate, nondiscriminatory reason for Philipp's termination. The court did not err in allowing evidence of ANR's adverse financial condition.

III.

Philipp next argues the court erred in failing to apply the mixed-motive analysis under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), to his 1990 claims of discriminatory and retaliatory discharge. We disagree. Under Price Waterhouse, the plaintiff carries the initial burden of "showing that an illegitimate criterion was a motivating factor in the employer's decision to terminate [his] employment." Cram v. Lamson & Sessions Co., 49 F.3d 466, 471 (8th Cir.1995). Once the plaintiff has made this threshold showing, the burden of persuasion then shifts to the employer to prove that it would have terminated the employee even without the illegitimate criterion. Id.

In order to merit a mixed-motive instruction and thereby shift the burden of persuasion to the employer, a plaintiff must initially present evidence, either direct or circumstantial, "showing a specific link between the discriminatory animus and the challenged decision," "sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the challenged decision." Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 201 n. 1, 202 (8th Cir.1993). For this reason, evidence that "discriminatory attitudes were prevalent" in the workplace does not warrant a mixed-motive analysis without further evidence "that these attitudes had a causal relationship to [plaintiff's] termination or nonpromotion." Sargent v. Paul, 16 F.3d 946, 948 (8th Cir.1994). This requirement of a causal link between discriminatory statements and the decisional process therefore renders insufficient " 'stray remarks in the workplace,' 'statements by nondecisionmakers,' or 'statements by decisionmakers unrelated to the decisional process itself.' " Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (quoting Price Waterhouse, supra, 490 U.S. at 277, 109 S.Ct. at 1804-05).

Here, Philipp argues he presented evidence that required the use of a mixed-motive instruction under Price Waterhouse. According to Philipp, this evidence consisted of numerous age-related statements made by Ainsworth, Baker, Emahiser and Howe, each of whom was responsible for ANR employment decisions. ANR responds, however, that three of the four alleged decisionmakers were not involved in the decision to terminate Philipp and were not even employed by ANR when the reduction in force was implemented in May 1990. Ainsworth left the Kansas City terminal in early 1986 and left ANR entirely in 1989. Baker transferred from Kansas City in 1985 and left ANR entirely prior to 1990. Emahiser departed ANR in 1989. This leaves only Howe who was the assistant terminal manager in May 1990. Therefore, Philipp's assertion that he was entitled to a mixed-motive instruction on the discharge claims rests only on evidence that Howe referred to Philipp on occasion as "the old man."

We agree with the district court that the record is devoid of evidence showing a "specific link between discriminatory animus and the challenged decision," see Stacks, supra, 996 F.2d at 201 n. 1, and that the comments made by Howe are properly classified as "stray remarks in the workplace." Philipp has failed to demonstrate that Howe's references to him as "the old man," or any underlying discriminatory attitude, "was more likely than not a motivating factor in [his termination]." See Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.1993). Because Philipp failed to make the threshold showing, he is not entitled to mixed-motive treatment of his claims.

IV.

Based on a verdict for Philipp on his retaliatory refusal to rehire claim, the district court ordered reinstatement. Although Philipp sought reinstatement in his complaint, he now argues the court abused its discretion by ordering reinstatement rather than front pay.

Under the ADEA, future damages in the form of front pay "should not be awarded unless reinstatement is impracticable or impossible."...