Ramirez v. Allright Parking El Paso, Inc.

• Decision Date: 07 July 1992
• Docket Number: No. 91-8271,91-8271
• Citation: 970 F.2d 1372
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1204, 59 Empl. Prac. Dec. P 41,749, 7 IER Cases 1308 Flavio O. RAMIREZ, Plaintiff-Appellee, v. ALLRIGHT PARKING EL PASO, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1372

970 F.2d 1372

59 Fair Empl.Prac.Cas. (BNA) 1204,

59 Empl. Prac. Dec. P 41,749, 7 IER Cases 1308

Flavio O. RAMIREZ, Plaintiff-Appellee, v. ALLRIGHT PARKING EL PASO, INC., Defendant-Appellant.

No. 91-8271.

United States Court of Appeals, Fifth Circuit.

July 7, 1992.

Rehearing Denied Aug. 6, 1992.

Gary B. Weiser, Thomas C. Brown, Lipson, Dallas & Weiser, El Paso, Tex., for defendant-appellant.

Enrique Moreno, El Paso, Tex., for plaintiff-appellee.

Appeals from the United States District Court For the Western District of Texas.

Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Allright Parking El Paso, Inc. (Allright) appeals a $234,343.55 judgment entered after a jury verdict finding it liable to Flavio Ramirez (Ramirez) for age discrimination under the Age Discrimination in Employment Act (ADEA) and for intentional infliction of emotional distress under Texas law. Allright challenges the denial of its motions for a directed verdict, judgment notwithstanding the verdict (JNOV), and new trial based on the sufficiency of the evidence. We affirm the jury's verdict regarding the ADEA claim, but finding the evidence insufficient reverse their verdict regarding the intentional infliction of emotional distress claim.

I. FACTS

Because Allright is challenging the sufficiency of the evidence we will recite the facts in the light most favorable to Ramirez. Allright employed Ramirez from 1961 until 1989. Over that time, he received several promotions, which culminated in his promotion to general manager of Allright's El Paso operations in 1986. As general manager, Ramirez reported to Aaron Hardgrave (Hardgrave), who was president of Allright's El Paso operations. In 1988, Allright promoted Kevin Matocha (Matocha), who was 22 years of age, to Regional Vice President. Shortly after Matocha's promotion, Hardgrave retired, and Allright replaced him with George Corse (Corse), who was 27 years of age. Ramirez remained the general manager and reported to Corse. After Corse took over, he called Ramirez into his office and told him that he had two more years with the company and then they were going to retire him. In January of 1989, Allright fired Ramirez and hired Scott Tinley, who was 22 years of age, as his replacement. At the time Allright fired Ramirez, he had no warnings or reprimands in his personnel file, and just two months prior had received a pay raise. After his firing, Ramirez and his son requested a meeting with Matocha, at which Ramirez's son asked Matocha if he was aware of the ADEA in order to let him know that there were other options available if the matter could not be settled. As a result of the meeting, Allright agreed that it would hire Ramirez back in a supervisory capacity and at his "old salary." ¹

On January 23, 1989, Allright reinstated Ramirez as a supervisor, but with a loss of seniority and at salary of $538 bimonthly rather than $585 as was agreed to by the parties. Shortly after he was reinstated, Allright demoted Ramirez to duty as a parking lot attendant, where it required him to work longer hours than the other attendants and work more weekends than the other supervisors. In September 1989, Tinley approached Ramirez and told him that he was switching him to an hourly wage and requiring him to punch a time clock. Ramirez refused to accept the hourly wage or punching a time clock, and Tinley fired him.

II. PROCEDURAL HISTORY

In October 1990, Ramirez sued Allright in state court alleging that it violated the ADEA and various state tort laws. Allright removed the case to the United States District Court for the Western District Court of Texas. At trial, Allright moved for and the district court granted a directed verdict on all the pendant state claims, however, later it partially withdrew its ruling and permitted Ramirez to proceed with his ADEA claim and his intentional infliction of emotional distress claim. The jury found for Ramirez on both claims, awarding him $23,760 in back pay and $23,760 in liquidated damages on his ADEA claim, and $300,000 in mental anguish damages on his emotional distress claim. After the jury's verdict, the district court entered judgment for $347,520. Allright filed a motion for JNOV and, in the alternative, a motion for new trial and motion for remittitur. The district court denied Allright's motion for JNOV and motion for new trial conditioned upon Ramirez filing a remittitur for $200,000. Additionally, the district court awarded Ramirez front pay of $62,362, attorneys' fees of $20,387, and costs of $4,074. Ramirez filed a remittitur for $200,000, and on May 17, 1991, the district court vacated its prior judgment and entered judgment for Ramirez for $234,343.55. Allright appeals that judgment.

III. DISCUSSION

Allright contends that its motions for directed verdict, JNOV, and new trial were improperly denied because there was insufficient evidence for the jury to find that it intentionally inflicted emotional distress upon Ramirez or that it discriminated against him based on his age in violation of the ADEA. When reviewing motions for directed verdict and JNOV:

[T]he Court should consider all of the evidence-not just that evidence which supports the non-mover's case-but in the light and with all reasonable inferences most favorably to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). A motion for new trial is reviewed under a different standard, and will not be overturned unless there is a clear showing of an abuse of discretion. Reeves v. General Foods Corp., 682 F.2d 515, 519 (5th Cir.1982).

A. Intentional Infliction of Emotional Distress Claim

Under Texas law, the tort of intentional infliction of emotional distress consists of four elements: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's action caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989) (citing Tidelands Auto Club v. Walters, 699 S.W.2d 939, 942 (Tex.App.-Beaumont, 1985, writ ref'd n.r.e.).

Allright contends that there is insufficient evidence to support the jury's finding that its actions toward Ramirez were extreme and outrageous, which is an essential element of Ramirez's claim. This court recently defined what is extreme and outrageous conduct in Dean v. Ford Motor Credit Co., 885 F.2d 300 (5th Cir.1989), where it stated:

liability for [outrageous] conduct has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.... Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, "Outrageous."

Dean (citing Restatement (Second) Torts Section 46, Comment d.) at 306.

To support his position that Allright's actions rise to that level, Ramirez cites to the recent decision of this court in Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir.1991). In Wilson, an elderly employee sued his employer for violation of the ADEA and for intentional infliction of emotional distress under Texas law. The evidence produced by the employee at trial showed that: (1) his employer assigned his duties to a younger person; (2) the company president refused to speak to him in the hallways so as to harass him; (3) the company's long range plans expressed a desire to move younger people into sales and management positions; (4) the company's president wanted to replace him with a younger person; (5) other managers would not work with him; (6) he did not receive his work assignments directly from the company president; (7) he was not offered a fully guaranteed salary to transfer; (8) his employer demoted him to the position of entry level warehouse supervisor; (9) his supervisors referred to him as old; (10) his immediate supervisor prepared a sign stating "Wilson is old," and "Wilson is a goldbrick"; and (11) the company filed a counterclaim against him.

The court found that all of the employer's above listed actions were within the realm of an ordinary employment dispute, and, in the context of the employment milieu, were not so extreme and outrageous to be properly addressed outside of the plaintiff's ADEA claim. Wilson at 1145. The court stated that "what takes this case out of the realm of an ordinary employment dispute is the degrading and humiliating way that [the plaintiff] ... was stripped of his duties and demoted from an executive manager to an entry level warehouse supervisor with menial and demeaning duties." Id. The evidence in Wilson showed that the employer transferred the plaintiff, who was the former vice-president and assistant to the president, to the warehouse where his primary duties were housekeeping chores, mainly sweeping the warehouse and cleaning up after the other employees in the warehouse cafeteria after lunch. ² The court simply held that the employer's intentional and systematic actions to humiliate the plaintiff, who had a college education and 30 years of executive experience, by requiring him to do menial, janitorial duties was extreme and outrageous. Wilson at 1145.

In the present case, in contrast to the facts in Wilson, there is nothing elevating Allright's...