Synacek v. Omaha Cold Storage Terminals, Inc.

• Decision Date: 20 January 1995
• Docket Number: No. S-93-1021,S-93-1021
• Parties: Freeman SYNACEK, Appellee and Cross-Appellant, v. OMAHA COLD STORAGE TERMINALS, INC., Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 91

526 N.W.2d 91

247 Neb. 244

Freeman SYNACEK, Appellee and Cross-Appellant, v. OMAHA COLD STORAGE TERMINALS, INC., Appellant and Cross-Appellee.

No. S-93-1021.

Supreme Court of Nebraska.

Jan. 20, 1995.

Syllabus by the Court

1. Actions: Pleadings. Whether an action is legal or equitable is determined from its main object as disclosed by the averments of the petition and the relief sought.

2. Equity: Jurisdiction: Pleadings. Equity acquires jurisdiction over an action when the averments of the pleadings and the relief sought indicate that the main object of the action is equitable in nature.

3. Equity: Jurisdiction. Where a court of equity has acquired jurisdiction of a case, it will make a complete adjudication of all matters properly presented and involved in the case and will ordinarily grant such relief, legal or equitable, as may be required and thus avoid unnecessary litigation.

4. Equity: Pleadings. Where a petition states facts entitling the plaintiff to both legal and equitable relief, the pleader has invoked the equitable powers of the court.

5. Equity: Trial: Juries. A jury empaneled in an equitable action serves only in an advisory role, and its findings are not binding on the trial court.

6. Equity: Appeal and Error. In an appeal of an equitable action, an appellate court tries the factual issues de novo on the record and reaches its conclusion independent of the factual findings of the trier of fact; provided, however, that where the credible evidence is in conflict on a material issue of fact, it considers and may give weight to the circumstance that the trier of fact heard and observed the witnesses and accepted one version of the facts rather than another.

7. Judgments: Courts. A trial court should limit itself to entering but one final determination of the rights of the parties.

8. Fair Employment Practices: Discrimination: Proof. Although in an action brought under Neb.Rev.Stat. §§ 48-1001 through 48-1010 (Reissue 1993) the burden of persuasion by a preponderance of the evidence at all times remains with the plaintiff, the method of proof is for the plaintiff to prove a prima facie case: if the plaintiff succeeds in so doing, the defendant has the burden of articulating some legitimate, nondiscriminatory reason for its action: should the defendant succeed in so doing, the plaintiff must establish by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but a pretext for discrimination.

9. Motions to Dismiss: Waiver: Appeal and Error. A defendant who, after the overruling of a motion for dismissal made at the close of the plaintiff's evidence, adduces evidence on its own behalf waives any error on the motion for dismissal.

10. Fair Employment Practices: Discrimination: Trial. Once a case brought under the provisions of Neb.Rev.Stat. §§ 48-1001 through 48-1010 (Reissue 1993) has been fully tried on the merits, the focus is on the ultimate question of whether the employer intentionally discriminated against the employee and not on the adequacy of a party's showing at any particular stage of the trial.

11. Fair Employment Practices: Discrimination: Proof: Words and Phrases. For the purpose of analyzing employment discrimination cases, the term "pretext" means pretext for discrimination; to establish that the proffered reason for the action taken by the employer was a pretext for discrimination, the employee must show both that the proffered reason was false and that discrimination was the real reason.

Alan J. Mackiewicz, of Lich, Herold & Mackiewicz, for appellant.

Thomas F. Hoarty, Jr., and Leanne R. Kullenberg, of McGowan & Hoarty, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, LANPHIER, and WRIGHT, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

Averring that his employment had been terminated in violation of Nebraska's age discrimination act, Neb.Rev.Stat. §§ 48-1001 through 48-1010 (Reissue 1993), the plaintiff-appellee, Freeman Synacek, obtained a judgment for past damages and a separate judgment for future damages, as well as an award of an attorney fee against his former employer, the defendant-appellant, Omaha Cold Storage Terminals, Inc. After filing its notice of appeal, Omaha Cold Storage successfully petitioned for leave to bypass the Nebraska Court of Appeals. Omaha Cold Storage asserts, among other things, that the trial court erred in failing to dismiss the case on the ground that the evidence is insufficient and in awarding an attorney fee. Synacek cross-appealed, claiming that the fee awarded is inadequate, and has moved for an attorney fee in this court. We reverse the judgments of the trial court and remand the cause for dismissal, dismiss Synacek's cross-appeal, and overrule his motion for an attorney fee in this court.

II. SCOPE OF REVIEW

The scope of our review is necessarily determined by whether this action is one at law or in equity. Lone Cedar Ranches v. Jandebeur, 246 Neb. 769, 523 N.W.2d 364 (1994). We begin that study by noting the language of § 48-1009:

In any action brought to enforce the provisions of sections 48-1001 to 48-1009, the court shall have jurisdiction to grant such legal or equitable relief as the court may deem appropriate to effectuate the purposes of sections 48-1001 to 48-1009, including judgments compelling employment, reinstatement, or promotion, or enforcing liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation.

Inasmuch as under that provision of the act a plaintiff may invoke either the legal or equitable powers of the court, we next look at Synacek's petition, for whether an action is legal or equitable is determined from its main object as disclosed by the averments of the petition and the relief sought. Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, 227 Neb. 770, 420 N.W.2d 280 (1988). Equity acquires jurisdiction over the action when the averments of the pleadings and the relief sought indicate that the main object of the action is equitable in nature. Fisbeck v. Scherbarth, Inc., 229 Neb. 453, 428 N.W.2d 141 (1988); Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, supra; White v. Medico Life Ins. Co., 212 Neb. 901, 327 N.W.2d 606 (1982); Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). Moreover, where a court of equity has acquired jurisdiction of a case, it will make a complete adjudication of all matters properly presented and involved in the case and will ordinarily grant such relief, legal or equitable, as may be required and thus avoid unnecessary litigation. Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994); Ames v. Ames, 75 Neb. 473, 106 N.W. 584 (1906) (where petition states facts entitling plaintiff to both legal and equitable relief, pleader has invoked equitable powers of court). Thus, in Allen v. AT & T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988), we held that the age discrimination causes which sought mandatory injunctions as well as damages were equitable in nature. Cf. Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993) (action under act treated as one at law).

Synacek's petition alleges that he was discriminatorily discharged at 59 years of age and that as a result, he "has suffered and will continue to suffer lost wages, lost fringe benefits, and lost opportunities for advancement...." Such "lost opportunities" may be such that the only effective remedy would be through equity in the form of a mandatory injunction ordering that Synacek be reinstated to his former employment. See, Maxfield v. Sinclair Intern., 766 F.2d 788 (3d Cir.1985), cert. denied 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Blim v. Western Elec. Co., Inc., 731 F.2d 1473 (10th Cir.1984), cert. denied 469 U.S. 874, 105 S.Ct. 233, 83 L.Ed.2d 161; Gibson v. Mohawk Rubber Co., 695 F.2d 1093 (8th Cir.1982).

Thus, the lost opportunities allegation, coupled with Synacek's prayer that in addition to awarding past and future damages the court grant "such other and further relief" as it "shall deem equitable and just," compels the conclusion that the action was pled in equity. See, also, Tobin v. Flynn & Larsen Implement Co., 220 Neb. 259, 369 N.W.2d 96 (1985); Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984) (prayer for equitable relief has no place or role in law action).

Accordingly, the jury empaneled to consider some of the issues in this case served only an advisory role, and its findings were not binding on the trial court. In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982); Farmers Coop. Assn. v. Klein, 196 Neb. 180, 241 N.W.2d 686 (1976); Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897). Neither is the verdict binding on this court, for, in an appeal of an equitable action, an appellate court tries the factual issues de novo on the record and reaches its conclusion independent of the factual findings of the trier of fact; provided, however, that where the credible evidence is in conflict on a material issue of fact, it considers and may give weight to the circumstance that the trier of fact heard and observed the witnesses and accepted one version of the facts rather than another. See, Upah v. Ancona Bros. Co., 246 Neb. 585, 521 N.W.2d 895 (1994); Allen v. AT & T Technologies, supra.

We also observe that while it was entirely appropriate for the trial court to have submitted the issues of the legality of the discharge and the amount of claimed past damages to the advisory jury and to have reserved the remedy as to the claimed future harm to itself, the better practice would have been to have entered but one judgment. See Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986) (trial court should limit itself to entering but one final determination of rights of parties).

III. FACTS

Omaha Cold Storage operates a refrigerated warehouse and hired Synacek in 1953 as a fireman responsible for firing the...