Rose v. National Cash Register Corp.

• Decision Date: 31 March 1983
• Docket Number: No. 81-1245,81-1245
• Citation: 703 F.2d 225
• Parties: 31 Fair Empl.Prac.Cas. 706, 31 Empl. Prac. Dec. P 33,485, 32 Empl. Prac. Dec. P 33,867 John W. ROSE, Plaintiff-Appellee, v. The NATIONAL CASH REGISTER CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 225

703 F.2d 225

31 Fair Empl.Prac.Cas. 706,

31 Empl. Prac. Dec. P 33,485,

32 Empl. Prac. Dec. P 33,867

John W. ROSE, Plaintiff-Appellee, v. The NATIONAL CASH REGISTER CORPORATION, Defendant-Appellant.

No. 81-1245.

United States Court of Appeals Sixth Circuit.

Argued Dec. 2, 1982.

Decided March 31, 1983.

Bruce Goodman, Schmidt, Howlett, Van't Hof, Snell & Vana, Richard A. Kay (argued), Grand Rapids, Mich., for defendant-appellant.

Gary J. McInerney (argued), Murphy, Burns & McInerney, Randall L. Velzen, Grand Rapids, Mich., for plaintiff-appellee.

Before MARTIN and KRUPANSKY, Circuit Judges and BROWN, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

The defendant-appellant, National Cash Register Corporation (NCR), appeals from a judgment, entered on a jury verdict in the Western District of Michigan, finding NCR liable to plaintiff-appellee, John W. Rose (Rose), for terminating his employment in violation of the Age Discrimination in Employment Act (ADEA or Act), 29 U.S.C. Sec. 621 et seq.

A review of the record below reveals the following uncontroverted facts. Rose's employment as a salesman in NCR's Grand Rapids, Michigan office was terminated in June of 1976. Rose was 54 years of age at the time of his termination and had been employed by NCR for approximately 25 years. Rose's position was filled by a man under 30 years of age.

Rose initiated this action in the district court on January 17, 1977, asserting that he had been terminated solely on account of his age. In his case in chief, Rose relied primarily on his own testimony and that of two former NCR employees, Donald Stites and James Heubner.

This testimony disclosed that in the early 1970's NCR commenced reorganization of its sales force including a reduction in the number of sales persons. NCR instituted this reduction through a program entitled Reduction In Force (RIF). Rose's termination was recorded as a RIF.

Rose, Stites and Heubner also testified that NCR, in connection with its corporate reorganization, sought to establish a new "younger image" for the company. To achieve this new image, according to the testimony, NCR began to hire only young employees. Rose also testified that the vice-president of NCR's midwest region informed him: "Men your age, there isn't going to be any future in the new NCR."

NCR acknowledged the existence of the RIF program but denied that the program was designed to terminate older employees. Moreover, NCR maintained that Rose was terminated due to continued, substandard sales performance and that his termination was recorded as a RIF only because of his supervisor's desire to afford him the benefits available under that program. NCR introduced evidence demonstrating that Rose had continuously, through the years 1969-1975, failed to meet his sales quotas.

Rose and Heubner testified, however, that revenue quotas--the amount of money received by NCR from new and old sales--had been stressed as the company's most important measure of performance. Rose had been successful in achieving his revenue quotas.

Following several days of deliberations, the jury returned a verdict in favor of Rose. The jury awarded Rose $25,200.00 in lost wages and $20,650.00 in fringe benefits. The jury also concluded that NCR's violation of the ADEA was willful.

Thereafter, the trial court entered judgment for $45,850.00 pursuant to the jury verdict plus an equal amount in liquidated damages and awarded pre-judgment interest on the entire sum. The district court denied a subsequent defense motion for judgment notwithstanding the verdict or new trial. NCR has appealed raising several issues including two issues of first impression in this Circuit.

NCR's primary argument on appeal, however, is that Rose failed to establish a prima facie case of age discrimination, and this Circuit has considered that issue on several occasions. See, Blackwell v. Sun Electric Corp., 696 F.2d 1176 (6th Cir.1983); Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.1982); Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th Cir.1980); Laugesen v. Anaconda Company, 510 F.2d 307 (6th Cir.1975). Cf. Locke v. Commercial Union Insurance Co., 676 F.2d 205 (6th Cir.1982). In each of the foregoing cases this Court has declined to adopt rigid guidelines exclusively establishing a method for proving a prima facie case in age discrimination actions.

This is not to say that this Court has failed to identify the crucial elements of an ADEA action. On the contrary, while employing slightly different formulations, this Circuit has consistently held that the ultimate burden borne by a plaintiff in an age discrimination action is that of proving "he was discharged because of his age." Laugesen, supra at 313. See Blackwell, supra at 1180 (age must be a determining factor); id. at 1188 (Krupansky, J., dissenting) (but for age); ¹ Ackerman, supra, at 70 (age makes a difference); Sahadi, supra at 1117 (age a contributing factor).

There is, of course, a difference between evidence which merely establishes a prima facie case and that which compels a verdict for the plaintiff. Laugeson, supra at 312. To say that a plaintiff has established a prima facie case is simply to say that he has produced sufficient evidence to present his case to the jury, i.e. he has avoided a directed verdict. See e.g. White v. Abrams, 495 F.2d 724, 729 (4th Cir.1974).

Evidence is sufficient to preclude granting a motion for directed verdict when, in reviewing the evidence in the light most favorable to the non-moving party, it would permit a reasonable jury to find in favor of that party. Coffy v. Multi County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir.1979).

Hence, a plaintiff in an ADEA action establishes a prima facie case by presenting evidence which, when viewed in the light most favorable to the plaintiff, would permit a reasonable jury to find that he was discharged because of his age. Contrawise, if, from "the facts presented in plaintiff's proofs there [is] simply no reasonable inference to suggest that plaintiff was discriminated against because of his age," Sahadi, supra at 1117, then plaintiff has failed to present a prima facie case and the trial court is required to direct a verdict for defendant.

Applying these principles to the instant matter, the Court is constrained to conclude that Rose established a prima facie case. Rose and two former NCR employees testified that the company wanted to promote a new, "younger image" while simultaneously reducing its work force. Moreover, Rose testified that a superior at NCR informed him that NCR held no future for a man of Rose's age. Viewed in the light most favorable to Rose, this evidence permitted the jury to conclude that Rose was a victim of the new, "younger image" at NCR.

NCR, as indicated, maintained that Rose was terminated solely because of his repeated failure to accomplish his sales objectives. The jury, however, was entitled to credit the testimony of Rose and Heubner to the effect that revenue quotas were the company's true measure of competence and thus that NCR's reliance on unachieved sales quotas as a justification for firing Rose was a pretext. This Court is not free to substitute its judgment for that of the trier of fact.

NCR next asserts that the trial court erred in awarding liquidated damages without considering, independent of the jury verdict, the purported good faith of the defendant. The ADEA recites, in pertinent part:

Amounts owing to a person as a result of a violation of this Act shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 16 and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216, 217): Provided. That liquidated damages shall be payable only in cases of willful violations of this Act.

81 Stat. 604. Section 216(b) of Title 29 directs that employers who violate the Fair Labor Standards Act (FLSA) shall be liable to the aggrieved employees for "the amount of their unpaid minimum wages or their unpaid overtime compensation, ... and in an additional equal amount as liquidated damages."

In the Portal-to-Portal Pay Act of 1947, Congress, dissatisfied with the automatic award of liquidated damages in suits under the FLSA, limited such awards as follows:

In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.

29 U.S.C. Sec. 260. In essence, NCR argues that Congress intended this section to apply in ADEA actions. This Circuit has not heretofore addressed the issue.

A review of the case authority from other Circuits reveals that only the Fifth Circuit has accepted NCR's position, Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976), while the prevailing weight of authority is to the contrary. Goodman v. Heublein Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). See also, Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 154 and n. 4 (7th Cir.1981); But See Mistretta v. Sandia Corp., 639 F.2d 588, 595 and n. 4 (10th Cir.1980) (While stating that an employer's good faith renders the award of liquidated damages discretionary, the Tenth Circuit declined to decide whether Sec. 260 had been incorporated into the ADEA). Moreover, this Court finds...