Williams v. Valentec Kisco, Inc.

• Decision Date: 11 June 1992
• Docket Number: Nos. 90-2909,90-2910 and 90-2911,s. 90-2909
• Citation: 964 F.2d 723
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 1154, 58 Empl. Prac. Dec. P 41,444, 60 USLW 2763 James WILLIAMS, Appellee/Cross-Appellant, v. VALENTEC KISCO, INC., Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 723

964 F.2d 723

58 Fair Empl.Prac.Cas. (BNA) 1154,

58 Empl. Prac. Dec. P 41,444, 60 USLW 2763

James WILLIAMS, Appellee/Cross-Appellant, v. VALENTEC KISCO, INC., Appellant/Cross-Appellee.

Nos. 90-2909, 90-2910 and 90-2911.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 9, 1991.

Decided April 29, 1992.

Rehearing and Rehearing En Banc Denied June 11, 1992.

William T. Weidle, Jr., St. Louis, Mo., argued, for appellant/cross-appellee.

Brian N. Brink, St. Louis, Mo., argued (Mary Ann Lindsey, on the brief), for appellee/cross-appellant.

Before ARNOLD, ^* JOHN R. GIBSON, and BEAM, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

James Williams prevailed in his claim that he was discharged by Valentec Kisco, Inc., because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-34 (1988 & West Supp.1991). However, the jury rejected his claim brought under 42 U.S.C. § 1981 (1988) that he was also discharged because of his race, and the magistrate judge ¹ who tried the case entered a similar judgment on his Title VII race claim brought under 42 U.S.C. § 2000e-2 (1988). Valentec Kisco argues on appeal that it was entitled to judgment notwithstanding the verdict on the age claim. Williams argues that the magistrate judge erred in finding against him on his Title VII claim and in giving instructions on the section 1981 race claim which did not properly inform the jury of the burden of proof and shifting burdens in such cases. Williams further argues that the magistrate judge erred in denying his motion for liquidated damages and front pay. We affirm the judgment of the magistrate judge in all respects except on the front pay issue, which we remand for reconsideration in accordance with our instructions.

We state the facts in the light most favorable to Williams as we are required to do under the standard set forth later in this opinion.

Valentec Kisco manufactures grenades and Army parts. Williams, a black man, had worked for Valentec Kisco for about twelve years, and was 51 years old at the time of the events at issue. Williams had been off work on medical leave because of job-related injuries and prostate surgery. When he returned, he worked on the second shift for approximately four months and then switched to the third shift to avoid working overtime. His regular job on the second shift had been to check the quality of grenades coming down the lines. He asked to be transferred back to the second shift and was told that the only job available was a sealer position. That position entails taking boxes of hand grenades and sealing them by placing aluminum foil bags on each box. The box is then sent to the second sealer who vacuum seals the box, places it in another box, and tapes the outside box. The sealer then loads the box onto a skid located next to the assembly line. Each box holds approximately 200 grenades and weighs approximately 67 pounds. When the skid is full, a tow loader moves it away from the line, and an empty skid is then moved in place for loading.

Williams told his supervisor, Leigh, that he would prefer to stay on the third shift if the sealer position was the only job available during the second shift, because his medical condition made lifting difficult. Leigh told Williams that he had to return to the second shift. Although Leigh testified that Williams requested the change back to the second shift, there was no documentation in the file regarding the change, and no explanation for the lack of documentation.

On March 11, 1987, Williams reported for work and Leigh assigned him his duties. After about two and a half to three hours Williams took a break to go to the restroom. Before he left there was a nearly full skid that he had been loading approximately two feet from his position on the line. When he returned from the restroom the skid had been moved twelve feet from its earlier position and no new skid was put in its place. Leigh told Williams that he had ordered the skid moved in his absence, and when Williams asked why, Leigh said, "I do like I want to." Customarily, one of the sealers instructed that the skid be moved away from the line when it was nearly full.

Williams then obtained a two wheeler hand dolly located some ten feet from the assembly line, intending to use it to place boxes on the dolly and move them from the line to the skid. Leigh told him he could not use the dolly and made Williams accompany him to the office, where they were joined by Sam Asbrock, a foreman, and the shop steward. Leigh told Asbrock what had happened and that Williams refused to do his job. Asbrock asked Leigh what he was doing with an old man carrying the boxes anyway. When the shop steward asked Leigh why he objected to Williams' using the two wheeler, Leigh stated that he was going to "fire this son of a bitch." Leigh then told Williams to leave the plant, and Williams left.

Leigh suspended Williams pending an investigation and prepared a disciplinary report showing that Williams refused to accept his job assignment. Williams told Leigh that day that he was having medical problems and Leigh wrote on the report that Williams informed him he was unable to do the job. There was evidence that the two wheeler was used to move grenades from place to place within the factory, and to pick up grenade parts. There was no written rule prohibiting employees from using the two wheeler to move boxes of grenades from the line to the skid, and nothing in Valentec Kisco's literature stated that the two wheeler could not be used in this fashion due to any safety hazards. The company safety rules did not prohibit use of the two wheelers, but they did state that employees were not to attempt to lift weights that were too heavy for them. Williams had used the two wheeler to move grenades from one place to another while working the second shift earlier in the week, and no one had ever told him that he could not use the two wheeler in that fashion. Valentec Kisco eventually terminated Williams and replaced him with a 30-year-old male, who left shortly thereafter on medical leave, and was in turn replaced by a 20-year-old white male. Williams made efforts to be reinstated, but was unsuccessful. He then commenced this action.

The issues submitted to the jury were whether age or race were "determining" or "motivating" factors in Williams' discharge. The jury was also instructed that defendant claimed that the sole reason for the termination was refusal to perform a job as directed by his supervisor, and that plaintiff had the burden to prove that this was mere pretext or coverup for the discharge. The jury found for Williams on his age discrimination claim and determined Valentec Kisco's conduct to be willful. However, the jury rejected Williams' section 1981 race discrimination claim. The magistrate judge entered judgment for Valentec Kisco on the Title VII race discrimination claim, holding that because of the jury verdict on the section 1981 claim, collateral estoppel required a finding of no discrimination for the Title VII claim as well. The jury assessed Williams' damages at $85,000. The magistrate judge ruled that Williams had waived any claim to liquidated damages when his counsel stated on the record that he would not pursue punitive damages on either the race or age claim pursuant to an agreement that certain evidence would be excluded from trial in return for this stipulation.

I.

Valentec Kisco argues that the magistrate judge erred in failing to grant its motion for judgment notwithstanding the verdict since there was no "competent and substantial" evidence to support a finding of pretext or intentional age discrimination.

An age discrimination case may proceed to trial on two paths: one involving direct evidence and the other using the three stage order of proof and presumptions that arise therefrom under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the latter method, the plaintiff has the initial burden of proving a prima facie case. ² The burden of production then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at 1824. The employee must then rebut the employer's reason by proving that his articulated reason was mere pretext. Id. at 804, 93 S.Ct. at 1825; Hall v. American Bakeries Co., 873 F.2d 1133, 1134 (8th Cir.1989) (applying McDonnell Douglas standard of proof in age discrimination cases). Valentec Kisco's arguments pertain primarily to this shifting burden analysis.

Our earlier cases make clear the scope of our review regarding this issue. As we said in Barber v. American Airlines, Inc., 791 F.2d 658, 659 (8th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986), in considering submissibility of an age case:

[W]e are concerned primarily with the simple question whether the record contains enough evidence to justify a rational jury in finding that age was a determining factor in what happened to plaintiff[ ], a factor in the absence of which the employer would not have taken the adverse action it did.

See also Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990) (once there has been finding of discrimination, on appellate review, three-stage order of proof and presumptions arising therefrom fade away). All we are to focus upon is whether there was sufficient evidence to support the jury's finding of intentional discrimination. Id. Bethea v. Levi Strauss & Co., 827 F.2d 355, 358 (8th Cir.1987); Barber, 791 F.2d at 660. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). In Morgan, we set forth the standard guiding our review of jury verdicts. This standard requires that we:

1) consider the evidence in the light most favorable to [Williams], who prevailed with the jury; 2) assume that all conflicts in the...