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Tice v. Lampert Yards Inc.

May 6, 1985

ROBERT G. TICE, PLAINTIFF-APPELLANT,
v.
LAMPERT YARDS, INC., DEFENDANT-APPELLEE



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 82 C 858, Robert W. Warren, Judge.

Bauer, Coffey, Circuit Judges, and Doyle, Senior District Judge.*fn*

Author: Coffey

COFFEY, Circuit Judge.

The jury found that the defendant, Lampert Yards, Inc., had discriminated against the plaintiff, Robert G. Tice, in dismissing him because of age. Upon review the district court, however, found that there was insufficient evidence to support this verdict and granted Lampert Yards' motion for judgment notwithstanding the verdict. Tice now appeals the district court's decision. We affirm.

I.

Tice, the millshop foreman for Lampert Yards' Sturgeon Bay facility, was terminated by Lampert Yards on July 17, 1980 at the age of 57. Following his dismissal he filed a charge of age discrimination with the Wisconsin Department of Industry, Labor and Human Relations ("WILHR") against Lampert Yards. A preliminary investigation determined there was probable cause to believe the Tice was dismissed because of his age; thereafter, on August 5, 1982 the complaint was dismissed after a hearing examiner determined that Tice failed to prove that Lampert Yards had discriminated against him on the basis of age.

On July 16, 1982, Tice commenced an action in federal court under the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 623(a). Throughout the state proceedings and the federal district court jury trial, Lampert Yards denied that it had taken any discriminatory actions in terminating Tice as foreman of its millshop. Rather, Lampert Yards argued that the reason for Tice's termination was because of the millshop's continued losses and for that reason it was eliminating the millshop, at its Sturgeon Bay facility. Tice contended, however, that he was replaced by another employee and that the elimination of his job was simply used as a pretext to discharge him and to deny him his pension benefits. The jury awarded Tice $147,600 in damages after it found that he had been willfully discharged because of his age. Following motions after trial, the district court reviewed the jury's determination and granted the defendant's motion for judgment n.o.v. finding that the plaintiff had proven neither the necessary elements of his prima facie age discrimination claim nor that the defendant's reason for his termination was a mere pretext. The plaintiff now appeals the decision of the district court judge claiming that the granting of the defendant's judgment n.o.v. motion was improper.

II.

In 1967, the United States Congress passed the Age Discrimination in Employment Act ("ADEA"). Its purpose is "to promote employment of older persons based on their ability rather than age . . . ." 29 U.S.C. § 621. The vast majority of cases that have discussed the appropriate burdens and standards for action under the ADEA have adopted the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) a race discrimination case. See, e.g., Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 551 (7th Cir. 1982).; Reeves v. General Foods Corp., 682 F.2d 515, 520 (5th Cir. 1982). For example, in Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), the shifting burdens set forth in the McDonnell Douglas decision were adapted for an age discrimination analysis. Id. at 1008. Initially, the plaintiff must prove a prima facie case of age discrimination. This involves demonstrating: (1) the employee is within the protected age group (40-70); (2) the employee was discharged; (3) the employee was qualified to do the job; and (4) the employee was replaced. See La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984) (adopting Loeb's enunciation of the prima facie case).*fn1 If the plaintiff demonstrates a prima facie case the employer then has the burden of offering a justifiable non-discriminatory reason for the termination.*fn2 Finally, if the employer should produce evidence rebutting the plaintiff's prima facie case, the burden shifts back to the employee to prove that the reason given by the employer was a mere pretext for the age discrimination. Id.

With these shifting burdens in mind, we review the district court's decision applying the same judgment n.o.v. standard used by the district court judge.*fn3 The standard for determining whether a judgment n.o.v. should be granted is whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed. See, e.g., Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 153 (7th Cir. 1981). Any conflicts in the evidence must be resolved in favor of the resisting party, and every permissible inference from the evidence must be resolved in favor of the party resisting the motion. Wisconsin Liquor Co. v. Park & Tilford Distillers Corp., 267 F.2d 928, 930 n.1 (7th Cir. 1959). However, a mere scintilla of evidence will not support a verdict and an entry of judgment n.o.v. would be proper. Gunning v. Cooley, 281 U.S. 90, 94, 74 L. Ed. 720, 50 S. Ct. 231 (1930); La Montagne, 750 F.2d at 1410. In other words, if there is insufficient evidence upon which a reasonable person could properly base a verdict, entry of judgment n.o.v. is appropriate. See La Montagne, 750 F.2d at 1410.

The first three elements of the plaintiff's prima facie case were not disputed at trial; rather, the sole issue concerned the fourth element, i.e., whether Tice was replaced by another, younger employee. In this regard, there was evidence that Tice began working as a carpenter with his father in 1939. In July of 1962, he was hired by Berns Brothers Lumber Company in Sturgeon Bay, Wisconsin, to work in the millshop as a carpenter and cabinetmaker. The millshop was specially equipped with machines and tools and was used to construct fine, detailed woodwork and cabinets (as compared to a saw shop which just cuts wood). In July of 1971, the defendant, Lampert Yards, purchased the business from Berns Brothers. Tice worked for Lampert Yards for a period of nine years, from July of 1971 until his termination in July of 1980. At the outset of his employment relationship with Lampert Yards, Tice was the foreman of the Sturgeon Bay shop and built cabinets, counters, windows, while performing other various custom craftsman's tasks. Tice also performed many non-skilled duties or general "saw shop" duties, including cutting of lumber, waiting on customers, and shoveling snow when required. The evidence demonstrates that because Lampert Yards was not a particularly large organization (it employed approximately 340 people in 36 yards), some of the employees' duties in the yards overlapped. In 1977, because of financial reasons, Lampert Yards decided to move its Sturgeon Bay area. At the time of the move, the defendant was contemplating whether to continue operating a millshop at this new location. After considering the issue, Lampert Yards decided to continue the millshop operation at the new location on a much smaller scale. The new shop was equipped with less equipment and Tice apparently was the only person employed full time to work in the millshop.

Tice testified that he was terminated on July 17, 1980 when he was called in to the Sturgeon Bay office and Mr. Alger, the manager of the Sturgeon Bay facility, told Tice that he had some "good news and bad news." The bad news was that the millshop would be closed and Tice terminated, but the good news was that there was a possible job opening with a shipbuilder in Sturgeon Bay. At trial there was conflicting evidence if at this meeting Tice was offered a truck driving job with Lampert Yards. Mr. Frank Hougas, division manager of Lampert Yards, testified that he asked Tice whether or not he was interested in the truck driving job if one should become available, but that Tice declined the offer and stalked out of the office. Tice, however, testified that no such offer was made to him at the time of termination; rather, he was later informed of the job offer by Alger, but that Alger, on his own, had told the Lampert Yards officials that he did not believe that Tice would be interested in the job. At the time of his termination, Tice had worked for Lampert Yards for some nine calendar years and was the highest paid hourly worker in the Sturgeon Bay Yard at $6.30 per hour; Lampert Yards' pension plan required ten years of service before any benefits would vest. Tice testified that when informed he was being laid off he asked about his pension benefits and was told by the officials that the matter would be looked into. Tice was initially denied his pension benefits apparently because he had worked only nine calendar years for Lampert Yards; however, it was later determined that he in fact did qualify for pension benefits since he had accumulated the necessary ten years of service.*fn4

Tice also testified that following his termination he went back to Lampert Yards' Sturgeon Bay facility on three or four occasions and had an opportunity to observe Bill Warwick, a part-time worker in the millshop during Tice's tenure, doing custom millwork. Mr. Warwick, who Tice contends replaced him in the millshop, also began his career with Berns Brothers Lumber Co. in 1967, prior to its purchase by Lampert Yards in 1971. Warwick testified that his duties with Lampert Yards before Tice's termination consisted of driving truck and helping Tice in the millshop, but that his primary responsibility was driving the company truck. Following Tice's termination, the evidence discloses that Warwick's duties primarily consisted of truckdriving; however, he also cut lumber and performed a number of millwork tasks in the shop. The defendant Lampert Yards admits that for approximately ten months following Tice's termination, some millwork was done in the shop; however, it contended that such work was performed only for customers who had insisted that custom millwork be done. It was uncontested at trial that at the time of Tice's termination a lock was placed on the door to the shop and a closed for business sign placed in its window. Ten months after Tice's termination, all of the specialized millshop equipment was sold and only the saws used for cutting lumber in the yard remained. According to Lampert Yards, the continuing pattern of financial losses in the Sturgeon Bay millshop operation forced its closure.

In this case, the district court observed at the end of the presentation of evidence that the plaintiff's proof of replacement was "very thin". This observation is supported by the fact that following Tice's termination as a skilled carpenter no new replacement was hired. Further, Mr. Warwick's duties after Tice's termination did not significantly change from his duties before Tice's termination, and there is no evidence of any extensive detailed millwork being performed in the shop following Tice's departure. Mr. Kosmoski, the present manager of the Sturgeon Bay facility, testified that Warwick, following Tice's termination, spent approximately 15 percent of his time in the shop doing millwork, prior to the equipment being sold, while Warwick's primary duty continued to be driving the company truck. Warwick, who testified for the plaintiff, confirmed that his primary duty before and after Tice's termination was to drive the company truck. Further, the evidence established that Lampert Yards phased out the entire millshop operation soon after ...


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