Radabaugh v. Zip Feed Mills, Inc.

Decision Date06 July 1993
Docket NumberNo. 92-2295,92-2295
Citation997 F.2d 444
Parties62 Fair Empl.Prac.Cas. (BNA) 438, 62 Empl. Prac. Dec. P 42,450, 62 USLW 2099 Dean RADABAUGH, Appellee, v. ZIP FEED MILLS, INC., Appellant. Tom Batcheller, Don Kjelden, Defendants.
CourtU.S. Court of Appeals — Eighth Circuit

Gary P. Thimsen, Sioux Falls, SD, argued, for appellant.

Peter J. Horner, Jr., Sioux Falls, SD, argued, for appellee.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Zip Feed Mills, Inc. ("Zip Feed") appeals from a judgment entered in the District Court 1 in favor of Dean Radabaugh in Radabaugh's age discrimination suit. For the reasons set forth below, we affirm.

I.

This case arises out of the termination of Radabaugh's employment by Zip Feed in December 1989; Radabaugh was fifty-eight years old when he was discharged. Zip Feed is a privately-held corporation engaged in manufacturing and distributing livestock and poultry feed. The company is headquartered in Sioux Falls, South Dakota, and sells feed in South Dakota and in a number of neighboring states. Radabaugh began working for Zip Feed in 1958, shortly after completing a master's degree in animal nutrition. When Radabaugh first went to work for Zip Feed, the company already employed one nutritionist; Radabaugh was hired as assistant nutritionist. In 1969, Radabaugh became the company's director of nutrition, a post that he held until his employment was terminated.

When Radabaugh first went to work for Zip Feed, the company operated a single feed mill located in Sioux Falls. Over time, however, the company acquired mills in Huron, South Dakota, and in Grandin, North Dakota. Despite the addition of these new plants, Zip Feed remained a fairly centralized operation with many of the company's functions being performed centrally in Sioux Falls. For example, all of the company's nutritionists were based in Sioux Falls as members of the corporate nutrition department and reported to Radabaugh, the head of that department. In the mid-1980s, competition in the feed industry led Zip Feed to begin a general downsizing; Zip Feed went from having 111 employees at the end of 1985 to having only ninety-one employees at the end of 1990. Connected with this downsizing, and in an effort to increase efficiency, Zip Feed also moved to decentralize its operations.

In 1986, an employee originally hired as a salesman was transferred to be the nutritionist at the Huron plant; and in 1987, Zip Feed hired a nutritionist for the Grandin plant. Both of these persons reported directly to the managers of the plants at which they worked; neither was part of the corporate nutrition department, although their work naturally involved some interaction with the corporate nutrition department. The evidence presented at trial suggested that rather than hire a new employee to be the nutritionist at Grandin, Zip Feed would have preferred to have had one of the nutritionists in the corporate nutrition department transfer there, which would have allowed Zip Feed to avoid hiring an additional employee. Apparently, however, none of the Sioux Falls employees were willing to take such a transfer. Radabaugh testified that at the time the Grandin hiring took place he was given to understand that the corporate nutrition department would remain in existence and that he would retain his position as director of that department.

Tom Batcheller, the president of Zip Feed, testified that the company's experience with having nutritionists report to individual plant managers was so good that in 1988 Zip Feed decided to transfer two nutritionists from the corporate nutrition department to the Sioux Falls plant. This decision left Radabaugh as the only nutritionist assigned to the corporate nutrition department. Then, in October 1989, Batcheller and Don Kjelden, the general manager of Zip Feed, determined that in order to reduce costs the corporate nutrition department should be eliminated and Zip Feed should discharge one nutritionist.

Batcheller and Kjelden testified that in deciding whom to let go they considered only the three nutritionists based in Sioux Falls: namely, Radabaugh and the two men who formerly had been part of the corporate nutrition department but who since 1988 had been assigned to the Sioux Falls plant. Batcheller and Kjelden testified that they believed that the nutritionists assigned to the Sioux Falls plant were the best qualified for the particular jobs they held and that they therefore decided to fire Radabaugh. Both Batcheller and Kjelden denied that either age or the fact that Radabaugh was earning the largest salary of the three nutritionists had any impact on their decision.

Following Radabaugh's discharge, Vern Fritz, one of the nutritionists assigned to the Sioux Falls mill, was given the position of nutrition coordinator. Fritz assumed some of the duties formerly performed by Radabaugh, including coordinating research and development and ensuring regulatory compliance. In addition, upon the elimination of the corporate nutrition department, a chemist who previously had worked in the corporate nutrition department was transferred to sales support; the chemist thenceforth reported to Fritz in his position as nutrition coordinator. Much of the work formerly done by the corporate nutrition department devolved to the mill level where it was performed by nutritionists reporting to the individual plant managers.

Radabaugh introduced various pieces of evidence at trial to support his claim that Zip Feed had discriminated on the basis of age in deciding to discharge him rather than one of the company's other nutritionists. First, Radabaugh introduced evidence to show that he was the oldest and the most highly paid of Zip Feed's nutritionists. In October 1989, when Batcheller and Kjelden informed Radabaugh that he was to be discharged, Radabaugh was fifty-eight years old and earning a salary of $53,340.00 per year. By contrast, the two nutritionists assigned to the Sioux Falls plant were forty-eight and forty-five years old and earning annual salaries of $38,940.00 and $35,040.00, respectively; the nutritionist at the Huron plant was fifty years old and earning $32,040.00 annually; and the nutritionist at the Grandin plant was twenty-six years old and earning a yearly salary of $25,200.00. Radabaugh also elicited testimony from Batcheller that Radabaugh was qualified for any of the four remaining nutritionist positions.

In addition, Radabaugh showed that Zip Feed planning and budgeting documents prepared by Batcheller for the years 1985 and 1987 included in a list enumerating the perceived strengths of the company an item titled, "Young managers"; the text accompanying this heading stated, "Top and middle managers are mostly young, well educated and results oriented." 2 Transcript at 98, 99. Radabaugh also testified that on several occasions Batcheller had stated that the company was "young, mean and lean." Transcript at 99. Finally, Radabaugh testified that Batcheller had made a pair of comments around the time of Radabaugh's discharge that Radabaugh claims demonstrate an aged-based animus on Batcheller's part. Specifically, Radabaugh testified that, in meetings held shortly after Radabaugh was notified that he was being discharged, Batcheller had stated that Radabaugh should have seen this coming when the nutritionist at the Grandin plant (who was twenty-six years old) was hired, and that Batcheller had suggested that Radabaugh might wish to consider retiring.

In its defense, Zip Feed introduced evidence regarding a number of problems with Radabaugh's performance in the years leading up to his discharge. This evidence principally concerned six separate instances in which Batcheller and Kjelden asserted that Radabaugh's work performance had been deficient. Batcheller testified that Radabaugh's performance was not up to the level of other division managers' work. Kjelden testified that in his opinion Radabaugh was not meeting Zip Feed's legitimate expectations. Because Batcheller had not prepared written annual reviews of Radabaugh's performance, no contemporaneous documentation existed to demonstrate that Radabaugh's performance had been adjudged deficient at the time it occurred. On rebuttal, Radabaugh introduced evidence to show either that his performance was not deficient in each of the six instances, or that, if it was the degree of his fault was less than had been suggested by Zip Feed.

The case was submitted to the jury under instructions consistent with those made applicable to mixed-motives cases by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The jury returned a verdict in favor of the plaintiff, and the court entered judgment upon that verdict. Zip Feed filed a motion for judgment as a matter of law or for a new trial, which the District Court denied. Zip Feed appeals arguing: 1) the jury should not have been given a Price Waterhouse instruction; and 2) the evidence was insufficient to support the jury's verdict and therefore Zip Feed is entitled to judgment as a matter of law. 3

II.

The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1988) ("ADEA") forbids employment discrimination against workers aged forty and older. It provides, inter alia, that it is unlawful for an employer to discharge any protected individual "because of such individual's age." 29 U.S.C. § 623(a)(1). The allocation of the burden of proof in ADEA cases is the same as in cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), Beshears v. Asbill, 930 F.2d 1348, 1353 nn. 6 & 7 (8th Cir.1991), and thus depends on whether a case is characterized as a "pretext" case or as a "mixed-motives" case.

"[T]he premise of [a pretext case] is that either a legitimate or an illegitimate set of considerations led to the challenged decision." Price Waterhouse, ...

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