Wilhelm v. Blue Bell, Inc.
| Decision Date | 18 September 1985 |
| Docket Number | No. 84-1854,84-1854 |
| Citation | 773 F.2d 1429 |
| Parties | 38 Fair Empl.Prac.Cas. 1600, 38 Empl. Prac. Dec. P 35,558 Frank E. WILHELM, Karl F. Gatlin and Harold L. Kogut, Appellees, v. BLUE BELL, INC., Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
W.T. Cranfill, Jr., Charlotte, N.C. (John O. Pollard; Blakeney, Alexander & Machin, Charlotte, N.C., on brief), for appellant.
Samuel M. Millette; Ernest S. DeLaney, III, Charlotte, N.C., (DeLaney, Millette & McKnight, P.A., Charlotte, N.C., on brief), for appellees.
Before PHILLIPS, CHAPMAN and WILKINSON, Circuit Judges.
Plaintiffs Frank Wilhelm, Karl Gatlin, and Harold Kogut brought this age discrimination suit against their former employer, Blue Bell, Inc., under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Sec. 621 et seq. Plaintiffs Wilhelm and Gatlin alleged that Blue Bell had discharged them because of their ages and that their respective discharges were without just cause and in violation of an implied covenant of good faith and fair dealing. Plaintiff Kogut later intervened and alleged that Blue Bell had discharged him because of his age. The plaintiffs' state law claims were dismissed prior to trial.
The jury found that Blue Bell had discharged plaintiffs Wilhelm and Kogut because of their ages in violation of the ADEA, awarded them damages, and concluded that Blue Bell's discrimination was "willful" within the meaning of Sec. 7(b) of the ADEA, 29 U.S.C. Sec. 626(b). The jury also found that plaintiff Gatlin had not filed his age claim with the Equal Employment Opportunity Commission within the applicable time period and accordingly awarded him no damages. In conformity with the jury's verdict the district court awarded Wilhelm and Kogut back pay, liquidated damages equal to the back pay amounts, reinstatement, attorneys' fees and costs. These orders were stayed pending appeal.
Blue Bell appeals claiming that the district court erred in denying its motions for judgment notwithstanding the verdict or a new trial and in instructing the jury on the issue of willfulness. We affirm the district court's denial of Blue Bell's motion for judgment notwithstanding the verdict but remand the case for a new trial on the issue of damages under a proper willfulness instruction.
Blue Bell manufactures and markets outer wearing apparel. Its most common product lines are blue jeans and related sportswear bearing the "Wrangler" brand name. Plaintiffs Wilhelm and Kogut were both Field Sales Representatives in the Southeastern Region of Blue Bell's Wrangler Boyswear Division. Wilhelm was responsible for the western half of North Carolina 1 and Kogut was responsible for the southern half of Florida.
Wilhelm was fired on February 2, 1982. Wilhelm was forty-nine years old and had been employed by Blue Bell for eight and one-half years when he was fired. At trial Blue Bell claimed that it fired Wilhelm because he refused to make "line presentations" as instructed by his supervisor, William Wise, and because he essentially ceased working in January 1982 after finishing a one year probationary period. Specifically, the evidence reveals that Wilhelm had worked only thirty accounts since January 1, the lowest of any salesman in the region. Blue Bell also notes that Wilhelm's relative salesman efficiency was the lowest in the region and his total number of accounts developed was the lowest in the region. In addition, Wilhelm's own contact reports indicate that he had made only one line presentation the first week in January, only two the second week, and only four the third week instead of the twenty per week required. As a result, Wilhelm had the lowest bookings in the region.
Wilhelm presents an entirely different picture of his performance. According to Wilhelm, as of January 29, 1982, he had secured four new accounts, was twenty-four percent ahead of his prior year's sales, was number one in the Southeastern Region in sales, and was number eleven out of eighty-five sales persons in the nation. Furthermore, Wilhelm notes that these figures do not even take into account sales for the last week in January. Wilhelm states that had he received credit for all of the sales he made, his actual percentage ahead of sales for the year before would have been thirty-four percent and his position nationally would have been number nine out of eighty-five.
Kogut was fired on May 16, 1983. Kogut was fifty-two years old and had been employed by Blue Bell for twelve years when he was fired. At trial, Blue Bell claimed that it fired Kogut and an under forty salesman named Randy Cloud because they both failed, after specific counseling and warning, to fulfill the evaluation criteria imposed on all the Boyswear salesmen in the Southeastern Region as part of an intensive eight-week period of evaluation. Blue Bell replaced Kogut with a twenty-eight year old salesman.
Kogut also presents a different picture of his performance. According to Kogut, at the time he was fired he was number one in the six-man district in accomplishing percent of sales quota and was number two in the entire Southeastern Region in acquiring new accounts. Kogut's immediate supervisor during the evaluation period District Manager Joe C. Glover, testified that as of May 19, 1983, Kogut was at seventy-eight percent of quota with approximately four and one half months left in the fiscal year. In addition, Kogut notes that Blue Bell fired him approximately one month after he gave deposition testimony unfavorable to Blue Bell as part of the discovery proceedings in the Gatlin and Wilhelm lawsuit.
To establish discrimination in an age discrimination case, the plaintiff must prove by a preponderance of the evidence that "but for" the defendant's motive to discriminate against an older employee, he would not have been terminated. E.E.O.C. v. Western Electric Co., Inc., 713 F.2d 1011, 1014 (4th Cir.1983); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir.1982); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979). The plaintiff may meet this burden "under ordinary principles of proof by any direct or indirect evidence relevant to and sufficiently probative of the issue...." Lovelace, 681 F.2d at 239. Alternatively, the plaintiff may rely on the judicially created proof scheme for Title VII cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), which has been adopted for application in ADEA litigation. See E.E.O.C. v. Western Electric Co., Inc., 713 F.2d at 1014; Fink v. Western Electric Co., Inc., 708 F.2d 909 (4th Cir.1983); Smith v. University of North Carolina, 632 F.2d 316 (4th Cir.1980).
In this case it is undisputed that plaintiffs Wilhelm and Kogut were in the protected age bracket when Blue Bell fired them. Accordingly, the sole issue for trial was whether age was a determining factor in the discharge of each plaintiff. In Lovelace this court established that the dispositive motivational issue of whether the plaintiff was discharged because of his age can be proven without resort to the McDonnell Douglas format:
Where--as here, and ordinarily--coverage and unfavorable action are not disputed, the dispositive and only issue is a difficult, but narrow, motivational one: whether the employee "was [discharged] because of his age." This may of course be proved under ordinary principles of proof by any direct or indirect evidence relevant to and sufficiently probative of the issue, ... without resort to any special judicially created presumption or inferences related to the evidence.
681 F.2d at 239 (emphasis added) (quoting Loeb, 600 F.2d at 1017).
In Lovelace this court held that direct evidence of age discrimination is sufficient to overcome a motion for a directed verdict or judgment notwithstanding the verdict. There, this court stated that in ruling upon a sufficiency motion in an ADEA case:
The first question is whether plaintiff's evidence may have carried the original production burden without need to invoke the McDonnell-Douglas presumption. This may have occurred, for example, through direct evidence of a stated purpose to disfavor because of age.... If this is the judicial assessment, inquiry of course ceases, no further production burdens are put in play, and the motion can be denied.
681 F.2d at 240 (emphasis added) (citation omitted). Furthermore, in Spagnuolo v. Whirlpool Corp., 641 F.2d 1109 (4th Cir.1981), this court ruled that where the plaintiff in an ADEA case relies primarily upon direct evidence of a discriminatory motive by the employer, the case " 'simply does not fit the mold of the McDonnell Douglas formula,' " and the plaintiff has no need to prove independently that the defendant's articulated reasons for a discharge were "pretextual." Id. at 1113 & n. 2 (quoting Loeb, 600 F.2d at 1018).
In considering the motion for judgment notwithstanding the verdict, the district court was required to view the evidence in the light most favorable to Wilhelm and Kogut and to draw all reasonable inferences in their favor. The district court could not weigh evidence or assess the credibility of witnesses. 9 Wright & Miller, Federal Practice & Procedure Sec. 2524 at 543-45 (1971). The test for determining whether judgment notwithstanding the verdict should be entered is whether, viewing the evidence in the light most favorable to the appellee-plaintiff, there is substantial evidence in the record to support the jury's findings. Brady v. Allstate Insurance Co., 683 F.2d 86, 89 (4th Cir.1982), cert. denied, 459 U.S. 1038, 103 S.Ct. 452, 74 L.Ed.2d 605 (1982); Miller's Mutual Insurance Association v. Southern Ry. Corp., 483 F.2d 1044 (4th Cir.1973).
Unlike the motion for judgment notwithstanding the verdict, the district court may weigh evidence and assess...
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