Opinion
No. 3:00-CV-1925-G
June 26, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendant, Haggar Clothing Company ("Haggar"), for judgment as a matter of law. For the following reasons, the motion is granted.
I. BACKGROUND
This case involves claims of age and gender discrimination. The plaintiff, Jimmy Palasota ("Palasota"), is a 57 year old male. Original Complaint and Jury Demand ("Complaint") at 2. He was 51 years old at the time of the acts complained of in this suit. Id. Palasota was employed by Haggar as a Sales Associate from 1968 to May 10, 1996, a total of 28 years. Id. Throughout most of his career with Haggar, Palasota's major account was Dillard's Department Stores ("Dillard's"). Additionally, Palasota serviced some trade accounts and eight J.C. Penney stores in the Dallas/Ft. Worth market. In December, 1995, Dillard's ceased purchasing Haggar products altogether. Subsequently, Haggar created an independent trade account territory specifically for Palasota. On April 29, 1996, Haggar informed Palasota that as a result of a reconfiguration of its sales staff, Palasota's position of Sales Associate was being eliminated, effective May 10, 1996. Complaint at 2. Haggar terminated Palasota on May 10, 1996. Id.
According to Palasota, Haggar's management felt that the company was not reaching the younger market, and in the mid-1990's began efforts to portray a younger, sexier image for the company. Palasota alleged that, as part of Haggar's attempt to change its market image with consumers and retailers, Haggar created the Retail Marketing Associate ("RMA") program to put "a younger look in the field" to sell its clothes to retailers. Palasota also asserted that over the few years prior to his termination, Haggar implemented policies in which responsibilities previously performed by Sales Associates were transferred to persons employed as RMAs. Complaint at 2. As a result of these changes, Palasota averred, the only apparent differences between the Sales Associate positions and the Retail Marketing Associate positions were the title and the pay, because many of the job responsibilities were essentially the same. Id. During this time, Haggar allegedly decreased the number of Sales Associates while increasing the number of Retail Marketing Associates. Id. Palasota alleged that persons employed as Sales Associates were generally males over forty years old, while persons employed as Retail Marketing Associates were generally females under forty years old. Id. at 2-3. Thus, according to Palasota, Haggar's reconfiguration of its sales force over the past few years effectively shifted the sales responsibilities from men over forty years old to women under forty years old. Complaint at 3.
Palasota filed this suit on September 1, 2000, alleging claims against Haggar of age discrimination under the Age Discrimination in Employment Act ("ADFA"), 29 U.S.C. § 621 et seq., and sex discrimination under Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, et seq. Id. at 1.
On January 24, 2002, the nine member jury seated in this case rendered a unanimous verdict, partially in favor of Palasota, finding that Haggar had willfully discriminated against Palasota on the basis of his age and awarding Palasota back pay in the amount of $842,218.96 ("the verdict"). The jury did not find that Haggar had engaged in sex discrimination. Haggar moved for judgment as a matter of law at the close of evidence and again after the verdict. Haggar now renews the motion, asking the court to disregard the jury's verdict of age discrimination, willfulness and damages, and enter judgment in favor of Haggar. Defendant's Amended Post Verdict Motion for Judgment as a Matter of Law and Brief in Support ("JMOL Motion") at 1.
II. ANALYSIS A. Standard of Review
The standard for analyzing a post-trial motion for judgment as a matter of law is well settled in the courts of the Fifth Circuit:
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover's case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).
Although motions for summary judgment under FED. R. Civ. P. 56 and motions for judgment as a matter of law under FED. R. Civ. P. 50 are similar "in that they challenge the existence of a genuine issue of fact and . . . seek a final judgment," Urti v. Transport Commercial Corporation, 479 F.2d 766, 768 (5th Cir. 1973), the court's previous denial of a motion for summary judgment does not preclude it from granting a motion for judgment as a matter of law. See Gross v. Southern Railway Company, 446 F.2d 1057, 1060 (5th Cir. 1971) ("It is settled in this Circuit . . . that prior denial of summary judgment does not rule out the possibility of a subsequent directed verdict."). This rule recognizes that "at times the issues may be such that only after the agony of a full-blown trial may it authoritatively be determined that there was never really the decisive issue of fact at all." Robbins v. Milner Enterprises, Inc., 278 F.2d 492, 497 (5th Cir. 1960).
B. Age Discrimination
The burden-shifting framework expounded by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), is applicable to cases brought under the ADEA. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-93 (5th Cir. 1996) (en banc). "When a case has been fully tried on the merits, however, we need not parse the evidence into discrete segments corresponding to the different stages of McDonnell Douglas-Burdine framework. Instead, applying Boeing's sufficiency of the evidence standards, we examine whether the plaintiff has met [his] ultimate burden of proving that the employer discriminated against [him] because of age." Scott v. University of Mississippi, 148 F.3d 493, 504 (5th Cir. 1998), citing Travis v. Board of Regents of the University of Texas System, 122 F.3d 259, 263 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1998).
While a plaintiff need not provide direct evidence to sustain a jury finding of discrimination, if circumstantial evidence is relied upon, it must be such that the factfinder could reasonably infer that age was a determinative reason for the employment decision. Scott, 148 F.3d at 504, citing Travis, 122 F.3d at 263. "Moreover, to give rise to such an inference of discrimination, the employee must provide some evidence, direct or circumstantial, to rebut each of the employer's proffered reasons and allow the jury to infer that the employer's explanation was a pretext for discrimination." Scott, 148 F.3d at 504. "The trier of fact may not simply choose to disbelieve the employer's explanation in the absence of any evidence showing why it should do so." Id., citing Swanson v. General Services Administration, 110 F.3d 1180, 1185 (5th Cir.), cert. denied, 522 U.S. 948 (1997).
Following a careful review of the evidence presented in this case, the court concludes that Palasota failed to provide sufficient evidence on which a reasonable trier of fact could find that Haggar's proffered reasons for Palasota's termination are pretexts or that Haggar's explanation is not credible.
C. Palasota's Evidence
Throughout the trial, Palasota referred to his case as a "puzzle" and asked the jurors to put the pieces of the puzzle together and find that Haggar had discriminated against him. See generally Trial Transcript from Palasota v. Haggar Clothing Company ("Transcript"). In Little v. Republic Refining Company, Ltd., 924 F.2d 93 (5th Cir. 1991), the Fifth Circuit Court of Appeals analyzed the appeal of a judgment as a matter of law in an age discrimination suit where the district court had granted the employer's motion for judgment notwithstanding the verdict after the jury returned a verdict in the employee's favor. The Court of Appeals affirmed the district court's decision. Id. at 94. Like the district court in Little, id. at 96-98, this court finds that the evidence presented by Palasota could not justifiably lead reasonable jurors to conclude that Haggar discharged Palasota because of his age. The pieces of evidence presented by Palasota, and relied on by him to sustain the verdict, will now be discussed seriatim.
1. Age-Based Comments
Palasota relied on several age-related comments made by various persons in Haggar's management as proof that age-bias motivated his termination. Even assuming that those making the comments were decision-makers in Palasota's termination, their "stray remarks" are insufficient to create an inference of age discrimination. Wyvill v. United Companies Life Insurance Company, 212 F.3d 296, 304 (5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001); Waggoner v. City of Garland, 987 F.2d 1160 (5th Cir. 1993). "In order for an age-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was a determinative factor in the decision to terminate the employee." Wyvill, 212 F.3d at 304; Equal Employment Opportunity Commission v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996), citing Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993).
Palasota relied on alleged age-related remarks attributed to Alan Burks ("Burks") and Frank Bracken ("Bracken"). Doug Moore ("Moore") testified that Burks stated, "Hey, fellows, let's face it, we've got an aging, graying sales force out there. Sales are bad, and we've got to figure out a way to get through it." Defendant's Appendix at 36, 1 Transcript at 66, ll. 8-12. Bracken was identified as having stated, "We need racehorses, not plowhorses." Defendant's Appendix at 77-78, 4 Transcript at 476, l. 9 to 477, l. 10. James Thompson ("Thompson") testified that Bracken referred to Palasota as being "out of the old school of selling." Defendant's Appendix at 78-79, 4 Transcript at 477, l. 19 to 478, l. 6. Palasota himself also testified that Bracken mentioned the "graying" sales force at a sales meeting once. Defendant's Appendix at 44-45, 3 Transcript at 289, l. 22 to 290, l. 2. Palasota admitted, however, that it was a truthful observation to say that the sales force was graying. Defendant's Appendix at 66-67, 3 Transcript at 405, ll. 12-22, 406, ll. 10-12.
The court agrees with Haggar (JMOL Motion at 17) that each of these statements is ambiguous as to the speaker's intent. The court in Wyvill analyzed far less ambiguous remarks, including a statement by the chief executive officer that he "felt that . . . [the older employees] were just too old to get the job done, and that we should either find another position for them or terminate them," and "that he wanted the company to be mean and lean, and he wanted to go to a young aggressive group of people." 212 F.3d at 304. The Court of Appeals, however, found that these "stray remarks" were "insufficient to create an inference of age discrimination." Id. See also Bennett v. Total Minatome Corporation, 138 F.3d 1053, 1061 (5th Cir. 1998) (reversing jury verdict for employee in ADEA case and rendering judgment for employer because none of the evidence, including statement by defendant's chairman of the board that company intended "to continue recruitment . . . focusing exclusively on young people," supported reasonable inference of age discrimination in that it did "not refer in any way to [the plaintiffs] age or the employment decisions of which he complains."). In light of Wyvill and Bennett, the court finds that the stray remarks Palasota attributed to Haggar's decision-makers are far too ambiguous to allow a reasonable jury to conclude, without any inferences or presumptions, that age was a determinative factor in Haggar's decision to terminate Palasota.
2. Disparate Treatment
Palasota alleged that "[t]he Defendant's actions constitute intentional age discrimination under 29 U.S.C. § 623 (a)(1)." Complaint at 3. The court thus understands Palasota to be claiming disparate treatment rather than disparate impact. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000) ("The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.").
Disparate impact claims, of course, (10 not require proof of intent to discriminate, Hazen Paper Company v. Biggins, 507 U.S. 604, 609 (1993), but they do require identification of specific practices as being responsible for any observed disparities. Smith v. Texaco, 263 F.3d 394, 403 n. 4 (5th Cir. 2001), opinion withdrawn and cause dism'd, 281 F.3d 477 (2002); Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.), cert. denied, 531 U.S. 812 (2001). The Supreme Court has never decided whether a disparate impact theory of liability is available under the ADEA. Hazen Paper, 507 U.S. at 610. Nor has the Fifth Circuit, although three members of that court have interpreted Hazen Paper to mean "that disparate impact theory is not available under ADEA." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 1004 (5th Cir. 1996) (en banc) (separate opinion of DeMoss, Smith, and Barksdale, Circuit Judges). See also Armendariz v. Pinkerton Tobacco Company, 58 F.3d 144, 152 (5th Cir. 1995) ("Armendariz has apparently confused Title VII disparate impact case law with his own ADEA claim."), cert. denied, 516 U.S. 1047 (1996). The other circuits have split on the question. See Adams v. Florida Power Corp., 255 F.3d 1322, 1323, 1326 (11th Cir. 2001) (holding disparate impact theory of liability unavailable under ADEA in Eleventh Circuit and surveying the decisions of other circuits). The Supreme Court declined to resolve this conflict among the circuits by dismissing the petition for certiorari in Adams as improvidently granted, ___ U.S. ___, 122 S.Ct. 1290 (April 1, 2002).
Therefore, the court will focus solely on whether Palasota has proved disparate 2 treatment. Palasota's theory at trial was that Haggar had an elaborate plan, dubbed by Palasota as a "youthanization," to replace its largely older, male sales force (Sales Associates) with a younger female sales force (Retail Marketing Associates or "RMAs"). See generally Transcript. However, this does not prove disparate treatment.
By definition, "disparate" means "unequal" or "dissimilar." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1986) at 653. Thus, disparate treatment necessarily requires a comparison, i.e., a showing that the plaintiff and another employee were treated differently or "disparately." The language of the case law is replete with this requirement. E.g., Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 514 (5th Cir. 2001) ("to establish disparate treatment a plaintiff must show that the employer gave preferential treatment to another employee under nearly identical circumstances") (internal quotation marks and brackets omitted); Williams v. Trader Publishing Company, 218 F.3d 481, 484 (5th Cir. 2000) ("To prove discrimination, a plaintiff may use circumstantial evidence that she has been treated differently than similarly situated non-members of the protected class."); Garcia v. Woman's Hospital of Texas, 143 F.3d 227, 231 (5th Cir. 1998) (In a Pregnancy Discrimination Act case, "[t]he state of this evidence will not support a finding that Garcia was intentionally treated differently from other non-pregnant employees. . . ."); Mayberry v. Vought Aircraft Company, 55 F.3d 1086, 1091-92 (5th Cir. 1995) ("Mayberry has not offered evidence sufficient to support a finding that white employees in circumstances `nearly identical' to his have been treated differently.").
The converse has also been recognized. Mason v. United Air Lines, Inc., 274 F.3d 314, 319 n. 25 (5th Cir. 2001) (citing Walton v. Bisco Industries, Inc., 119 F.3d 368, 373 (5th Cir. 1997), as holding that it is not discrimination for an employer "to treat differently situated employees differently."); Wallace v. Methodist Hospital System, 271 F.3d 212, 221 (5th Cir. 2001) ("put another way, the conduct at issue is not nearly identical when the difference between the plaintiffs conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer.") (citing Wyvill v. United Companies Life Insurance Company, 212 F.3d 296, 304-05 (5th Cir. 2000), and Polanco v. City of Austin, Texas, 78 F.3d 968, 977 (5th Cir. 1996)).
To establish a claim of disparate treatment, Palasota had to show that Haggar gave preferential treatment to a younger employee under "nearly identical" circumstances. Wyvill, 212 F.3d at 304; Little, 924 F.2d at 97; Hamilton v. Grocers Supply Co., Inc., 986 F.2d 97, 99 (5th Cir.), cert. denied, 508 U.S. 960 (1993); Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam). His attempted comparison with the RMAs, general and conclusory as it was, does not satisfy this standard.
Palasota argues on this motion that, because the case has been fully tried, it is irrelevant now whether he proved that he was replaced by a younger worker. Brief in Support of Plaintiffs Response to Defendant's Motion for Judgment as Matter of Law at 2, 14-16. He is correct on the issue of a prima facie case. See pp. 5-6 above. At the end of the day, however, he still has to compare himself to a younger worker under "nearly identical" circumstances to show that he was treated "disparately" because of his age. See nn. 1 and 2 above. This comparison was never made.
The plaintiff in Wyvill compared himself to a younger supervisor in a different office who, like himself, was guilty of abusive and rude conduct to staff and employees but who, unlike the plaintiff, did not lose his job as a result. Wyvill, 212 F.3d at 298, 304-05. The Court of Appeals held that this evidence did not show the circumstances of the two employees were nearly identical. Id. at 304-05. Likewise, the plaintiff in Little relied upon the fact that his replacement was 39-years-old, and the Court of Appeals dismissed this reliance as an insufficient basis to support the jury's verdict, stating that while "[t]his fact was properly considered in establishing Little's prima facie case, . . . it is clearly insufficient for Little's ultimate burden of proving intentional age discrimination." Little, 924 F.2d at 98; Elliot v. Group Medical Surgical Service, 714 F.2d 556 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984). Here, for similar reasons, Palasota's reliance on the fact that the RMAs were largely younger than himself is insufficient to prove disparate treatment.
3. Anecdotal Evidence
At Palasota's request, the court gave the following instruction to the jury regarding Palasota's contentions:
Palasota contends that he was terminated from his employment with Haggar based upon his age and sex as part of a plan implemented by Haggar to eliminate older males from the sales force and transfer the sales responsibilities to younger females and that such transfer of responsibilities constituted age and sex discrimination.
Instructions at 12, Defendant's Appendix at 14.
There is no legally sufficient evidentiary basis to show that Palasota's sales responsibilities were in any way transferred to an RMA. In his testimony, Palasota admitted that the RMAs, who were working at J.C. Penney both before and after he left Haggar, were not taking over Palasota's sales responsibilities at the J.C. Penney stores for which Palasota had responsibility. Palasota further admitted that "the RMA's had no impact on [him] at Dillard's." Defendant's Appendix at 71, 3 Transcript at 372, ll. 8-10. The court agrees with Haggar's assertion that the record establishes that, with respect to his then-existing responsibilities, Palasota does not and cannot claim that an RMA took over any of his selling responsibilities or otherwise replaced him. JMOL Motion at 7.
Q: Now, your assignment of the eight Penney stores was going on up until the time of your separation from Haggar; is that correct?
A: That's correct.
Q: Now, the RMA's were calling upon those stores when you were initially assigned them in 1990, correct?
A: That's correct.
Q: And the RMA's continued calling on those stores the entire time you were assigned those eight stores, correct?
A: That's correct.
Q: And the RMA's were there after you left, correct?
A: I'm sure they were, yes.
Q: And so they were there before during and after you left, correct?
A: That's correct.
Q: And you never complained during the time you worked side by side with the RMA's that the RMA's were ever taking over your responsibilities in those stores?
A: Not my sales responsibilities, no.
Q: They weren't taking over your sales responsibilities, were they?
A: Oh, no.
Defendant's Appendix at 71-72, 3 Transcript at 273, l. 18 to 375, l. 14.
Because he could not show that he personally was replaced by someone outside of the protected class, Palasota made much of the fact that the other sales associates were eventually phased out of the company completely. Palasota's own witness, Doug Moore, testified that the J.C. Penney accounts Palasota sought to have assigned to him before his departure from the company were assigned to two other Haggar sales associates, Randy Bailey and Barbara Bond. Defendant's Appendix at 41, 2 Transcript at 116, ll. 9-15. Palasota admitted that these assignments did not constitute age discrimination. However, during Palasota's examination of Moore, Palasota presented evidence of alleged mistreatment of Haggar employees by Haggar, ranging from the termination for cause of five Sales Associates a year after Palasota's separation, to the alleged separation of Sales Associates assigned to the J.C. Penney account seventeen months after Palasota's separation. See generally 1 Transcript at 85, l. 6 to 96, l. 1. None of these allegations involved Palasota, and all of them took place at least a year after Palasota left Haggar.
Q: Now, do you contend that it was age discrimination for your accounts to go to fellow sales associates such as Randy Bailey and Dennis Bowie once you left Haggar?
A: No.
In Wyvill, the Court of Appeals criticized the efforts of a plaintiff to introduce anecdotal testimony from and about former employees in an effort to show that the defendant employer had a "pattern or practice" of discriminating against older workers. Id., 212 F.3d at 298, 302. These efforts fell short, said the court, because a "pattern or practice" of discrimination does not consist of "isolated or sporadic discriminatory acts by the employer." "Rather, as the Supreme Court has explained, it must be established by a preponderance of the evidence that [the impermissible] discrimination was the company's standard operating procedure — the regular rather than the unusual practice." Id. at 302, citing Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76 (1984) (citations and internal quotation marks omitted). The court in Wyvill pointed out that such a pattern and practice is often revealed with statistical proof, and that the only way that anecdotes about other employees could be used to establish that discrimination is a company's standard operating procedure is if the employees the plaintiff compares himself to are similarly situated to the plaintiff. Id. at 302. Evidence about former employees who had different supervisors from Palasota, who worked in different parts of the company, or whose terminations were removed in time from Palasota's termination cannot be probative of whether age was a determinative factor in Palasota's discharge. Id. Clearly, the other Sales Associates remained at Haggar at least a year beyond Palasota's separation. This alone prohibits the court from considering anecdotal testimony regarding their treatment as evidence of Haggar's discrimination against Palasota.
C. Other Issues
Because Palasota has not demonstrated that Haggar unlawfully discriminated against him because of his age, it is unnecessary to address the issues of additional damages or willful discrimination which are, of course, dependent on a finding of age discrimination. See Russell v. McKinney Hospital Venture, 235 F.3d 219, 230 (5th Cir. 2000) (quoting Hansard v. Pepsi-Cola Metropolitan Bottling Company, 865 F.2d 1461, 1470 (5th Cir.), cert. denied, 493 U.S. 842 (1989)).
III. CONCLUSION
For the reasons discussed above, Haggar's motion for judgment as a matter of law is GRANTED.
SO ORDERED.
* * *
Q: And Ms. Bond was taking over some of the previously eight Penney stores assigned to you?A: That's correct.
Q: And Barbara Bond was close to your own age, wasn't she?
A: That's correct.
Q: You agree the decision to assign Barbara Bond these J.C. Penney accounts as you left Haggar was not motivated by age discrimination?
A: No, they are correct.
Q: And you are not contending that Haggar was engaging in age discrimination by assigning Randy Bailey to take over your AAFES account?
A: No, sir.
Q: You are not complaining about Ms. Bond taking over the accounts, are you?
A: Not at all.
Defendant's Appendix at 53-54, 55-56, 57, 75, 3 Transcript at 336, l. 25 to 337, l. 4; at 338, l. 24 to 339, l. 7; at 340, ll. 19-22; at 430, ll. 22-24.