Stacey v. Allied Stores Corp., 84-5199

• Decision Date: 26 July 1985
• Docket Number: No. 84-5199,84-5199
• Parties: 38 Fair Empl.Prac.Cas. 773, 37 Empl. Prac. Dec. P 35,450, 247 U.S.App.D.C. 285 Frederick C. STACEY, Appellant v. ALLIED STORES CORPORATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 402

768 F.2d 402

38 Fair Empl.Prac.Cas. 773,

37 Empl. Prac. Dec. P 35,450, 247 U.S.App.D.C. 285

Frederick C. STACEY, Appellant v. ALLIED STORES CORPORATION.

No. 84-5199.

United States Court of Appeals District of Columbia Circuit.

Argued March 11, 1985.

Decided July 26, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-02727).

John W. Karr, Washington, D.C., for appellant.

Guy R. Fairstein, New York City, for appellee. Edward Jasen, Washington, D.C., also entered an appearance, for appellee.

Before TAMM, MIKVA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge.

This appeal is taken from the District Court's grant of judgment n.o.v. in favor of Allied Stores Corporation, the defendant in an action brought by a terminated employee under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq. (1982). After carefully examining the entire record in this case, we are constrained to conclude that the exacting standards for granting a losing party's motion to overturn a jury verdict and a conditional motion for a new trial were not satisfied here. We therefore reverse and remand the case for a determination of damages.

The facts giving rise to this litigation are amply set forth in the District Court's thorough opinion, which is reported at 581 F.Supp. 1103 (D.D.C.1984). We will therefore recite only the most pertinent facts necessary to our resolution of this appeal.

Beginning on May 31, 1977, Frederick Stacey was employed by Garfinckel, Brooks Brothers, Miller & Rhodes (GBM), a large Washington, D.C.-based department store chain, as corporate security director. That chain owned and managed more than 200 retail stores. In November 1981, Allied Stores, a large department store chain based in New York, successfully completed a tender offer for GBM's stock, resulting in GBM's merger into a wholly-owned Allied subsidiary. Allied promptly decided to close GBM's headquarters office in Washington and to consolidate the functions previously carried on by that office with those of Allied's corporate staff in Manhattan. As a result of this consolidation, Mr. Stacey remained in the employ of the Allied subsidiary for only a short while; he was finally terminated on May 15, 1982. GBM's office in Washington was thereafter closed in August 1982.

Prior to his termination, Mr. Stacey expressed to GBM's former vice chairman and chief financial officer (who was at that point in Allied's employ) and to an Allied vice-president in New York his willingness to work in a lesser position within Allied's organization. According to his testimony at trial, Mr. Stacey was willing to take a pay cut in order to remain in an Allied loss prevention-security position. Five specific positions were identified by Mr. Stacey at trial, namely security directorships for individual Allied stores in several cities, for which he deemed himself fully qualified. Visiting Allied's New York headquarters shortly before his termination, Mr. Stacey indicated his interest in remaining with Allied in a loss-prevention capacity; he was told, however, by Allied's vice president "that there was nothing in loss prevention and that he [the Allied vice president] would probe the Allied divisions ... to see if there was an opening...." Trial Transcript at 115-16. Nothing came of this conversation, however, and Mr. Stacey ended his employment with Allied without having been considered for other, lesser posts which were in fact available.

Subsequently, Mr. Stacey brought an action in federal district court, claiming that Allied violated the ADEA by terminating him and by refusing to consider him for the other security positions. The case ultimately went to trial, with the jury returning a verdict on liability in favor of Mr. Stacey, the parties having agreed that the measure of damages would be determined by the court post-verdict. Allied thereafter filed a motion for judgment n.o.v. or, in the alternative, for a new trial. Allied argued that there was no evidence that Mr. Stacey's age was a factor in Allied's decision to terminate him. To the contrary, Allied contended, Mr. Stacey's termination was the direct consequence of Allied's business judgment to close GBM's headquarters office and to transfer the functions of that office to the existing Allied headquarters staff in New York. As to the refusal to consider Mr. Stacey for other positions within the organization, Allied maintained that Mr. Stacey's performance as GBM's corporate security director was unsatisfactory. This view of Mr. Stacey's performance was held by Allied's John P. Murphy, Vice President for Financial and Security Audit, who testified at some length at trial. Allied summarizes this evidence in the following way:

Allied had three occasions in 1981, both before and after the merger, to assess at first hand whether Stacey's performance was sufficient. On each occasion Allied came away with legitimate ground for concern, and recorded the factual basis for such concern in contemporaneous documents. These documents preclude fair-minded jurors from finding this reason for Allied's employment decision a mere pretext for intentional age discrimination.

Allied Brief at 32.

Mr. Stacey resisted Allied's motion, contending that the evidence adduced at trial amply supported the jury's verdict. He pointed to the following evidence: (1) substantial trial testimony that Mr. Stacey was a respected and valued officer at GBM, the management of which had found his performance entirely satisfactory; (2) evidence that Allied personnel had made notations of certain GBM employees' ages on a document and had inquired of certain GBM employees, including Mr. Stacey, about their respective ages; (3) evidence that Mr. Murphy of Allied had frequently referred to Allied's security directors as a "cadre of young chargers" (an allegation that Mr. Murphy flatly denied in his own testimony); and (4) evidence that those GBM staff members, including Mr. Stacey, who were involuntarily terminated by Allied were over 40 years of age and thus within the ADEA's protective reach.

In a comprehensive opinion, the District Court granted Allied's motion for judgment n.o.v. The court correctly observed at the outset the applicable legal standard:

Allied must shoulder a heavy burden to be granted judgment notwithstanding the verdict. The standard of review is high.... [A] motion for judgment notwithstanding the verdict "should not be granted unless the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict."

581 F.Supp. at 1105 (quoting Vander Zee v. Karabatsos, 589 F.2d 723, 726 (D.C.Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979)) (other citations omitted). Rightly acknowledging that the trial judge "should not invade the province of the jury, attempt to assess witness credibility, or weigh the evidence," id., the District Court nonetheless concluded that Allied was entitled to judgment n.o.v. for the following reasons: first, that Allied had proved a legitimate, nondiscriminatory business reason for closing GBM's headquarters office and abolishing Mr. Stacey's position; and second, that Allied's audits and investigations in 1981 revealed deficiencies and problems in the areas of Mr. Stacey's responsibility at GBM. Carefully reviewing the evidence, the District Court determined that the closure of GBM's office constituted a lawful reason for Mr. Stacey's termination which the plaintiff had not rebutted by proving that the discharge resulted, instead, from intentional discrimination. Id. at 1107. In addition, the trial court concluded that substantial evidence had been adduced that "Stacey's performance as [GBM's] security director was inadequate" id., and that Mr. Stacey had not shown that the unflattering audits by Allied of GBM's security procedures and conditions were fabricated, contrived or inaccurate. The District Court emphasized in this respect that the ADEA does not prevent an employer's taking adverse action against a protected senior employee, "if the employer makes a good faith determination that the worker's performance has been unsatisfactory." Id.

In addition, the District Court advanced several other reasons warranting judgment n.o.v. (1) The five security positions in Allied's organization for which Mr. Stacey was not considered (and which were filled by younger persons) were all branch store jobs paying considerably less than Mr. Stacey's annual salary; moreover, Mr. Stacey's own testimony with respect to his qualifications for those jobs counted "for very little." The plaintiff had failed entirely, the court concluded, to adduce any evidence as to the selected employees' qualifications, experience or training upon which a meaningful comparison with Mr. Stacey could be made. (2) Citing authorities from the Second Circuit, including Parcinski v. The Outlet Co., 673 F.2d 34 (2d Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 725, 74 L.Ed.2d 950 (1983), the District Court observed that the ADEA "does not compel an employer to consider or offer an employee other employment." Id. at 1108. (3) The trial court concluded that certain testimony and argument placed Allied in a "poor light with the jury" and that the jury had apparently been misled by one witness, Albert Bailey. Mr. Bailey, who had worked for Allied in New York before returning to Florida to work in a banking post, testified on behalf of Mr. Stacey about, among other things, Mr. Murphy's references to his "cadre of young chargers" at Allied. (4) Also with respect to Mr. Bailey, whom Allied disparagingly refers to on this appeal as Mr. Stacey's "star witness," the trial court concluded that the time frame of Mr. Bailey's testimony presented important relevancy problems, inasmuch as Mr. Bailey's contact with Mr....