Uffelman v. Lone Star Steel Co., 88-2326

• Decision Date: 20 January 1989
• Docket Number: No. 88-2326,88-2326
• Citation: 863 F.2d 404
• Parties: 48 Fair Empl.Prac.Cas. 1630, 48 Empl. Prac. Dec. P 38,620, 57 USLW 2483 Glenn UFFELMAN, Plaintiff-Appellee, v. LONE STAR STEEL CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 404

863 F.2d 404

48 Fair Empl.Prac.Cas. 1630,

48 Empl. Prac. Dec. P 38,620, 57 USLW 2483

Glenn UFFELMAN, Plaintiff-Appellee, v. LONE STAR STEEL CO., Defendant-Appellant.

No. 88-2326.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1989.

Michael P. Maslanka and David M. Ellis, Clark, West, Keller, Butler & Ellis, Dallas, Tex., for defendant-appellant.

Larry Daves, Daves, Hahn & Levy, Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, HIGGINBOTHAM and SMITH, Circuit Judges.

REAVLEY, Circuit Judge:

Defendant Lone Star Steel Co. appeals from a judgment based upon a jury verdict awarding back pay and liquidated damages to a discharged employee for a claim under the Age Discrimination in Employment Act (ADEA). 29 U.S.C. Secs. 621-634. We affirm.

I. Background

Lone Star Steel Co., a manufacturer of tubular products for use in the oil and gas industry, hired Glenn Uffelman as a staff engineer in 1975 when he was fifty-one years of age. Uffelman, who came to Lone Star with a degree in engineering and over twenty years experience as a production engineer, was assigned to the construction engineering section of the engineering department. He performed a variety of services there, including among other things supervising the activities of outside contractors and working as an expediter for various engineering projects.

In 1982, William Ulevich was hired to manage the engineering department at Lone Star. Shortly thereafter, the price of oil began declining, together with the need for drilling equipment and Lone Star's products. Ulevich decided that the engineering department would have to be reorganized and jobs terminated. On December 15, 1983, Ulevich submitted his proposal for the reorganization to Lone Star's human resources department. This proposal called for the elimination of the construction engineering section and the reorganization of the remaining engineering sections into four subdepartments. Although Ulevich did not develop objective job descriptions, he determined in general what functions engineering would continue to perform and how many employees would be needed to perform those functions. Ulevich then matched employees to the remaining jobs and presented the entire plan to Robert Frane, the director of human resources.

On May 3, 1984, Uffelman, along with nine other Lone Star employees, was discharged. Of the ten who were terminated, nine were over the age of forty and thus within the ADEA's protected group. ¹ After complying with the administrative steps through the Equal Employment Opportunity Commission, Uffelman brought this suit against Lone Star pursuant to the ADEA, alleging that his discharge was unlawful in that his age was a determinative factor in the decision to let him go. Lone Star claimed that Uffelman's discharge was motivated by the company's declining business and Uffelman's unsatisfactory work performance. The jury, finding both that Lone Star discharged Uffelman because of his age and that it did so willfully, awarded back pay in the amount of $75,910.25. The district court, denying Lone Star's motions for judgment n.o.v. and for a new trial, doubled this amount in its entry of judgment based on the jury's finding of willfulness. ² See 29 U.S.C. Sec. 626(b).

Lone Star appeals on the following grounds: (1) that the evidence was insufficient to support the jury's finding of intent to discriminate; (2) that the evidence was insufficient to support the jury's finding that Lone Star willfully violated the ADEA; and (3) that Uffelman's back pay should have been tolled from January 1985 to the present since the evidence established that Uffelman voluntarily withdrew from the labor market, thereby willfully failing to mitigate his damages.

II. Sufficiency of the Evidence

In reviewing the denial of a motion for judgment n.o.v., this court's task is to determine whether the record contains evidence upon which a reasonable trier of fact could conclude as the jury did, keeping in mind that "it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc).

A. Age Discrimination

The plaintiff's prima facie case of age discrimination in a reduction in force situation consists of: (1) satisfying the ADEA's standing requirements that he is within the protected group and he has been adversely affected by the employer's decisions; (2) showing that he was qualified to assume another position at the time of the discharge; and (3) producing evidence from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633, 642 (5th Cir.1985). The employee may meet this burden by proving that younger employees, or those outside the protected group, were more favorably treated. Id. at 639. If the defendant articulates legitimate reasons for its actions, the plaintiff bears the burden of demonstrating that those reasons were pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

Lone Star claimed that Uffelman was terminated because of the company's declining business and Uffelman's substandard work performance. The parties presented conflicting evidence regarding Uffelman's work record, and Uffelman's response to the workforce reduction explanation was that Lone Star resolved admitted financial problems by terminating older employees in a discriminatory fashion. We conclude that the jury was presented with evidence from which it was entitled to find that Lone Star did discriminate because of age and that its proffered rationale for Uffelman's termination was pretextual.

Contradictory stories arose regarding Uffelman's performance on the job. Lone Star claimed that Uffelman's performance had been unsatisfactory for quite some time before he finally was discharged. It pointed out that Uffelman's annual performance rating reached its lowest point in 1980 and that in 1983 he was placed on probation at the request of his supervisor, Frank Rice. ³ Uffelman offered evidence to show, however, that some of the reprimands on which his ratings were based were ill-founded. The conflict in the evidence surrounding Rice's action may have been particularly significant to the jury. Ulevich testified that Rice wanted to discharge Uffelman and came to Ulevich with the request that this be done. Rice testified that he made no such request, that he never intended to see Uffelman--who did excellent work--discharged, and that he recommended an upgrade of Uffelman's evaluation which Ulevich refused. Other co-workers testified that he had done good work for Lone Star over the years and that the quality of his work compared well with that of other similarly situated engineers. A supervisor in another engineering section requested that Uffelman be transferred to his group to work on a special project. That request, too, was denied by Ulevich. From this evidence, the jury could have concluded that Uffelman was well qualified to perform his job and that Lone Star's articulated reason for firing him was simply pretextual.

The reduction in force, itself admittedly justified, did not explain Ulevich's decision to discharge Uffelman while retaining several younger, less experienced engineers who continued to perform tasks that Uffelman was qualified to do. This was Uffelman's evidence which the jury accepted. Two engineers, Ogg and Schlossel, both under the age of forty, were retained and transferred to positions which Uffelman apparently convinced the jury he was qualified to fill. Other engineers, within ADEA's protection, were also retained and Uffelman's evidence compared his qualifications favorably with theirs. Lone Star contends that no inference of age discrimination can be drawn from the preferred treatment of engineers who were themselves at an age protected by the ADEA. We disagree. "We have never demanded rigid adherence to the requirement that the plaintiff establish that he was treated unfavorably as compared with people outside of the protected class--i.e., under age forty." Thornbrough, 760 F.2d at 643 n. 14. As we noted in McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir.1980),

because the discrimination involves age, rather than sex or race, a requirement that the replacement be from a nonprotected group fails to take the reality of the working place into account. Because of the value of experience rarely are sixty-year-olds replaced by those under forty. The replacement process is more subtle but just as injurious to the worker who has been discharged. That the person is replaced by a person ten years younger rather than twenty years does not diminish the discrimination; the subtlety only tends to disguise it.

The evidence at trial indicated that one of the main purposes of the reorganization was to cut costs. Lone Star saved money in terminating Uffelman's salary and benefits, and by discharging Uffelman nine months short of the time at which his pension was to have vested, and thereby avoiding the expense of retirement pay, the company realized an additional savings. Uffelman established that other older employees were discharged at the same time that he was. Three out of five engineers aged sixty or older were let go, including Frank Rice, the oldest and highest paid engineer in construction engineering, while only one out of twenty-four employees under the age of forty was terminated. The jury was entitled to infer from the evidence that, by retaining younger, lesser paid employees who were not nearly so close to retirement, Lone Star was attempting to further a plan to reduce the average age and pay of its employees.

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