Wilson v. Sealtest Foods Div. of Kraftco Corp., 73-3246

• Decision Date: 19 September 1974
• Docket Number: No. 73-3246,73-3246
• Citation: 501 F.2d 84
• Parties: 11 Fair Empl.Prac.Cas. 128, 8 Fair Empl.Prac.Cas. 749, 10 Empl. Prac. Dec. P 10,399, 8 Empl. Prac. Dec. P 9691 A. P. WILSON, Plaintiff-Appellant, v. SEALTEST FOODS DIVISION OF KRAFTCO CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 84

501 F.2d 84

11 Fair Empl.Prac.Cas. 128,

8 Fair Empl.Prac.Cas. 749,

10 Empl. Prac. Dec. P 10,399,

8 Empl. Prac. Dec. P 9691

A. P. WILSON, Plaintiff-Appellant, v. SEALTEST FOODS DIVISION OF KRAFTCO CORPORATION, Defendant-Appellee.

No. 73-3246.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1974

Rehearing Denied Dec. 13, 1974.

Jere D. McWinn, Jacksonville, Fla., for plaintiff-appellant.

Guy O. Farmer, II, Gary P. Sams, James A. Bledsoe, Jr., Jacksonville, Fla., Robert G. Johnson, Janet Skaare Morris, Glenview, Ill., for defendant-appellee.

Before BROWN, Chief Judge, TUTTLE, Circuit Judge, and YOUNG, District judge.

JOHN R. BROWN, Chief Judge:

Appellant, A. P. Wilson, brought this suit under the Age Discrimination in Employment Act, 29 U.S.C.A. 621 et seq. ¹ alleging that his employer, the Sealtest Foods Division of Kraftco Corporation, unlawfully discharged him because of his age. At the conclusion of the presentation of Appellant's case, the District Court granted the employer's motion for a directed verdict. Appellant challenges this finding as well as the District Court's refusal to admit into evidence his testimony and that of certain Sealtest employees relating to statements made by company supervisors concerning hiring policies and job openings. We reverse.

Briefly, the facts are that Appellant Wilson had been employed by Sealtest at its Jacksonville, Florida location for thirty-three years, the last twenty-two of them consecutively. During this time he worked at various company jobs beginning as a special delivery salesman of dairy products and working his way up to the position of accounting clerk in 1970. In April of 1970, Appellant was told by his supervisor that Sealtest was gradually closing down its accounting offices in Jacksonville as well as other locations and that if Appellant desired continuous employment with the company he could become a production clerk in Sealtest's Jacksonville warehouse. Appellant Wilson told his supervisor he had no experience as a production clerk but his supervisor assured him that was of no consequence and that he would be given time enough to learn the job. Several months after joining the production department, Appellant was told by his supervisor he was doing a good job.

On July 14, 1972, Appellant, who was then sixty-two years of age, was told by several company supervisors that the company had made a job survey and determined they would have to ask Appellant to take an early retirement effective August 5. Appellant testified he had never indicated to the company that early retirement was his desire but that he felt compelled to agree with the company's suggestion. He was soon replaced by Joe Brown, a fifty year old accounting clerk who had been transferred to the Production Department several months prior to Appellant's dismissal.

There has been much debate in both briefs and argument as to whether the recent Supreme Court case of McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, which outlines the elements of proof necessary to a prima facie case of racial discrimination under Title VII of the 1964 Civil Rights Act, has significant relevance to the present case. Appellant argues that any analogous showing that the employee was within the protected age group (40-60), was doing satisfactory work, was terminated without adequate explanation and replaced by a younger man, is sufficient to preclude a judge from directing a verdict against a plaintiff at the close of his case. Once such a showing is made, the burden then shifts to the employer to present some reasonable non-discriminatory explanation for its conduct. The Appellee, on the other hand, contends that McDonnell standards are not applicable in that McDonnell involved a situation where a demonstrably qualified Black man was not hired by a company even though there were no other qualified applicants competing for the job, whereas the present case involves the company's selection between two employees for one position.

We agree with the Appellee that there are certain factual dissimilarities between McDonnell and the present case. We do not, however, find it necessary to rely solely upon McDonnell precedent in order to determine that the Appellant presented sufficient evidence to prohibit the District Court from directing a verdict against him. We simply state that in the particular procedural framework within which this case is presented, a showing that the Appellant was within a protected class, was asked to take early retirement against his will, was doing apparently satisfactory work, and was replaced by a younger person, will not permit dismissal at such an early stage of the trial proceeding. ² A minimal showing of these analogous McDonnell factors justifies some explanation on the part of the employer.

The Age Discrimination in Employment Act ³ requires that the complainant prove the employer discharged him or her because of such individual's age. It is possible that in the presentation of the employer's case, further evidence relating more directly to the requisite specific intent to discriminate might be adduced during cross-examination by the Appellant. We cannot foreclose this possibility. It may be that the company in this case had an impermissible intent when discharging the Appellant which can only be judged from viewing the evidence as a whole. U.S.Const. Amend. VII; ⁴ Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365; Texaco, Inc. v. Lirette, 5 Cir., 1969, 410 F.2d 1064; Liberty Mutual Ins. Co. v. Davis, 5 Cir., 1969, 412 F.2d 475.

We wish to additionally emphasize that all we are presently holding is that the District Court erred in directing a verdict at the close of Appellant's case. Should the evidence at the end of the Appellee's case be such that it is without contradiction that the company in fact was forced simply to choose one...