Rehearing and Rehearing En Banc Denied September 14, 1982.
BRIGHT, Circuit Judge.
Henry Halsell appeals from an adverse judgment in his suit seeking damages for his allegedly wrongful discharge from employment by Kimberly-Clark Corporation (Kimberly-Clark). Because we agree with the district court's
In June 1974, Henry Halsell left his job with Spencer Foods to accept employment as a project manager for Kimtech, a wholly owned subsidiary of Kimberly-Clark. Kimtech had contracted to provide design, engineering, and construction services for the expansion of a pulp and paper mill in Orizaba, Mexico, owned by Kimberly-Clark de Mexico (a Mexican corporation in which Kimberly-Clark held a minority interest). In recruiting a supervisor for its operations in Orizaba, Kimtech placed an advertisement for a project manager
After responding to the advertisement, Halsell was interviewed by John Tinnell,
In October 1977, Halsell instituted this action against Kimberly-Clark, alleging that his discharge constituted a breach of his employment contract. He later amended his complaint to include claims for violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976) (ADEA), and for defamation by one of Kimberly-Clark's employees.
Prior to trial, the district court
In response to special interrogatories, the jury concluded that Kimberly-Clark had breached its employment contract with Halsell, and awarded Halsell $250,000 in damages. The district court, however, subsequently granted Kimberly-Clark judgment notwithstanding the verdict.
Halsell now appeals the judgment of the district court, contending that (1) the district court should not have granted summary judgment on the defamation claim; (2) the district court improperly directed a verdict against him on the ADEA claim because he had established a prima facie case of age discrimination; (3) the court should not have entertained a motion for judgment n.o.v. on the contract claim because Kimberly-Clark failed to renew its motion for a directed verdict on that issue at the close of all the evidence; and (4) the court erred in awarding Kimberly-Clark judgment n.o.v. because the jury's verdict was reasonable and supported by substantial evidence. We consider these arguments in turn.
II. Summary Judgment on Defamation Claim.
Halsell amended his original complaint to include a claim of defamation against Kimberly-Clark and Wayne Cheng, a Kimtech design engineer. The amended complaint alleged that Cheng published a false and defamatory memorandum about Halsell. Cheng had written the memorandum to Al Wendahl, manager of Kimberly-Clark's pulp and paper mill activities, regarding problems with Halsell on the Orizaba project. The memorandum remained in Wendahl's personal files until produced in this litigation.
The district court dismissed the claim against Mr. Cheng individually, for lack of personal jurisdiction. Subsequently, the district court granted Kimberly-Clark partial summary judgment on the defamation issue because no publication of the allegedly defamatory statements had occurred.
An action for defamation requires publication of the allegedly defamatory matter to one other than the defamed person. The Wisconsin Supreme Court
III. Age Discrimination.
At the close of the plaintiff's case-in-chief, the district court granted defendant Kimberly-Clark's motion for a directed verdict on Halsell's claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976) (ADEA). Halsell contends that the district court should not have directed a verdict because he had established a prima facie case of age discrimination. He seeks a new trial on this issue.
The Supreme Court recently clarified the parties' respective evidentiary burdens in an employment discrimination case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Although the Court in Burdine addressed a claim of gender discrimination in violation of Title VII, the same standards apply in an ADEA case. See Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981); Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir. 1981).
To establish a prima facie case of age discrimination, Halsell would have to show that Kimberly-Clark discharged him "under circumstances which gave rise to an inference of unlawful discrimination." Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093; Douglas v. Anderson, supra, 656 F.2d at 531.
Although the proof necessary to establish a prima facie case will vary according to the circumstances of the case, see Moses v. Falstaff Brewing Corp., 550 F.2d 1113, 1114 (8th Cir. 1977), the four criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), provide one way of establishing a prima facie case of employment discrimination. See Douglas v. Anderson, supra, 656 F.2d at 531; Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980); Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980); Houser v. Sears, Roebuck & Co., 627 F.2d 756 (5th Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
In McDonnell Douglas, the Supreme Court held that a claimant under Title VII could establish a prima facie case of prohibited discrimination by showing that he belonged within the class protected by Title VII, that he applied and was qualified for an available position, that he was not hired
In Loeb v. Textron, supra, the First Circuit used the elements of McDonnell Douglas to evaluate a claim of unlawful discharge under the ADEA. Because the complaint stemmed from firing rather than hiring, however, the court modified the four factors in order to produce an analogous inference.
Halsell contends that he established a prima facie case of age discrimination according to the McDonnell Douglas factors as modified by Loeb v. Textron. Halsell, who was fifty-seven years old at the time of his discharge, fell within the age group protected by the ADEA, which applies to individuals between the ages of forty and seventy. See 29 U.S.C.A. § 631(a)(West Supp. 1982). After discharging Halsell on November 15, 1975, Kimtech appointed an engineer in his mid-thirties as Halsell's replacement. Finally, Halsell contends that he was "qualified" for the job in the sense that he had performed his duties in a manner that met Kimberly-Clark's legitimate expectations. As evidence of his employer's satisfaction with his work, Halsell testified that he had received a ten percent pay increase two months prior to his discharge. Halsell also indicated that, after a year at the Orizaba project, he received a performance rating of "provisional," which he assumed indicated a temporary or contingent evaluation pending completion of the project.
Halsell maintains that this evidence amounted to a prima facie case of age discrimination, and therefore the district court improperly directed a verdict on his ADEA claim. We do not agree with Halsell's argument for two reasons. First, we doubt that Halsell has, in fact, established a prima facie case of age discrimination. Although the Supreme Court stated in Burdine that "[t]he burden of establishing a prima facie case of disparate treatment is not onerous[,]" Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1094, the Court also ruled that "the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination." Id. at 252-53, 101 S.Ct. at 1093 (emphasis added).
To establish a prima facie case of discrimination, the plaintiff must produce sufficient evidence to support an inference that the defendant employer based its employment decision on an illegal criterion. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977); Douglas v. Anderson, supra, 656 F.2d at 532. In considering whether Halsell has produced sufficient evidence to support such an inference, this court must determine whether Halsell showed that he was qualified for the job in the sense that his performance met Kimberly-Clark's legitimate expectations. Halsell's evidence on this issue consisted solely of his testimony
Secondly, even assuming that Halsell presented a prima facie case of age discrimination, Kimberly-Clark's rebuttal overwhelmingly established its legitimate, nondiscriminatory reason for discharging Halsell.
The ADEA specifically provides that discharge of protected individuals for good cause shall not be unlawful. 29 U.S.C. § 623(f)(3)(1976). Moreover, establishment of a prima facie case of employment discrimination does not automatically entitle the plaintiff to a jury determination on the discrimination claim. The concept of "the prima facie case" outlined in McDonnell Douglas means only that the plaintiff has produced enough evidence to shift the burden of production to the defendant.
In this case, Kimberly-Clark presented substantial evidence through cross-examination of plaintiff's witnesses, that it had legitimate reasons for discharging Halsell. Kimberly-Clark had received repeated complaints from a variety of sources regarding Halsell's performance as project manager. John Tinnell, Kimtech's president, testified for Kimberly-Clark
Halsell argues, however, that the defendant's rebuttal evidence simply created a question of fact for the jury, but did not destroy the prima facie case. We do not agree. By satisfying its burden of production, Kimberly-Clark eliminated any inference of discrimination raised by Halsell's prima facie case. See Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 255 & n.10, 101 S.Ct. at 1094 & n.10 (if defendant carries burden of production, presumption of discrimination drops from case); Smithers v. Bailar, supra, 629 F.2d at 895 (inference of discrimination dissolves when employer shows legitimate nondiscriminatory reason for conduct).
We do not believe that the jury's verdict for Halsell on his breach of contract claim in any way affects our conclusion that Kimberly-Clark articulated a legitimate nondiscriminatory reason for discharging Halsell. The parties bear different burdens on the ADEA claim and the breach of contract claim. In an ADEA case, the defendant employer need not persuade the court that the proffered reason in fact justified the
In Douglas v. Anderson, supra, the Ninth Circuit explained the relationship as follows:
Following Burdine, the court in Douglas v. Anderson acknowledged that the employer carries its burden of production by introducing some evidence of a legitimate, nondiscriminatory reason for its action. Thus, the defendant bears a lesser burden in rebutting the plaintiff's prima facie case on the ADEA claim than in presenting a defense of good cause on a breach of contract claim.
A trial court should direct a verdict for an ADEA defendant only when no jury could reasonably conclude that age was a determining factor in the decision to discharge the plaintiff. Douglas v. Anderson, supra, 656 F.2d at 533. In affirming a directed verdict entered by the district court, the Ninth Circuit stated:
Our review of the record in the case before us reveals that Kimberly-Clark's rebuttal evidence similarly did more than create an issue of fact for the jury. Kimberly-Clark presented extensive evidence of its nondiscriminatory reasons for dissatisfaction with Halsell's performance as manager of the Orizaba project, which completely undercut any suggestion that Kimberly-Clark discharged Halsell because of his age. Kimberly-Clark more than rebutted any hint of age discrimination in Halsell's discharge so that a jury could not reasonably have found age discrimination a factor in his discharge. Accordingly, we affirm the directed verdict for Kimberly-Clark on the ADEA claim.
IV. Judgment N. O. V. on the Contract Claim.
A. Kimberly-Clark's Failure to Move for a Directed Verdict at the Close of All the Evidence.
At the close of Halsell's case-in-chief, defendant Kimberly-Clark moved for a directed verdict on both the age discrimination and employment contract claims. After granting the motion on the ADEA claim, the court reserved decision on the motion for directed verdict regarding the contract claim.
When Kimberly-Clark had substantially completed presentation of its defense, but prior to Halsell's rebuttal evidence, the court held a conference on proposed instructions outside of the hearing of the jury. At that time, Kimberly-Clark renewed its motion for a directed verdict. The court indicated that Kimberly-Clark should wait until the end of the case to renew the motion, but asked that the record reflect that Kimberly-Clark had renewed its motion and that the court had again reserved decision on it.
The evidence presented when the court resumed session was brief, and neither party introduced further evidence on the nature of the employment contract. Kimberly-Clark introduced part of a deposition concerning the reason for Halsell's discharge, and some answers Halsell made to interrogatories on the issue of damages. In rebuttal, Halsell testified in his own behalf regarding his performance as project manager.
The court then submitted the contract issue to the jury with interrogatories to which the jury responded as follows:
Kimberly-Clark moved for judgment notwithstanding the jury's answers to interrogatories numbers 1 and 3. The district court granted Kimberly-Clark judgment n. o. v. on the ground that Halsell's contract of employment was not for a specified time, and was therefore terminable at the will of either party. The court also held the award of damages grossly excessive.
Halsell appeals from the district court's entry of judgment n. o. v., contending, first, that Kimberly-Clark failed to move for a directed verdict at the close of all the evidence,
We agree with Halsell's contention that a party may not move for a judgment n. o. v. without first having moved for a directed verdict at the close of all the evidence. See Cargill, Inc. v. Weston, 520 F.2d 669, 671 (8th Cir. 1975); Tsai v. Rosenthal, 297 F.2d 614, 618 (8th Cir. 1961). This prerequisite affords the party against whom the motion for a directed verdict is made an opportunity to cure any defects in proof, and enables the court to reexamine the issue as a matter of law if the jury returns a verdict contrary to the movant. See Mutual Benefit Health & Accident Association v. Thomas, 123 F.2d 353, 355 (8th Cir. 1941); 5A J. Moore, Moore's Federal Practice ¶ 50.08 (3d ed. 1982).
We note, however, that courts have taken a liberal view of what qualifies as a motion for a directed verdict in allowing a subsequent motion for judgment n. o. v. See Moran v. Raymond Corp., 484 F.2d 1008, 1011 (7th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974); Albrecht v. Herald Co., 452 F.2d 124, 127 (8th Cir. 1971); Beaumont v. Morgan, 427 F.2d 667, 670 (1st Cir.), cert. denied, 400 U.S. 882, 91 S.Ct. 120, 27 L.Ed.2d 121 (1970); United States v. 353 Cases, 247 F.2d 473, 477 (8th Cir. 1957). Although the movant fails to renew its motion for a directed verdict at the conclusion of all the evidence, a court may nevertheless grant judgment n. o. v. if the evidence introduced after the motion for directed verdict was brief, and the court somehow indicated that renewal of the motion would not be necessary to preserve the right to move for judgment n. o. v. See Bayamon Thom McAnn, Inc. v. Miranda, 409 F.2d 968, 972 (1st Cir. 1969).
In this case, Kimberly-Clark attempted to renew its motion for a directed verdict during the instruction conference on the afternoon of the third and final day of trial. Because the parties had not finished presenting all the evidence, the court advised the defendant that the proper time to renew the motion would be at the close of all the evidence. At the same time, however, the court stated that it considered the motion renewed.
We believe the district court's comment indicated to Kimberly-Clark that it need not move for a directed verdict again at the close of all the evidence to preserve its right to move for judgment n. o. v. Furthermore, the evidence introduced subsequent to the motion for directed verdict did not relate to the nature of the employment contract, and therefore did not affect the contract issue on which Kimberly-Clark sought a directed verdict.
In addition, Halsell did not raise this objection to Kimberly-Clark's motion for judgment n. o. v. at the time of its making. When the Seventh Circuit considered a case in a similar procedural posture, it stated: "We do not view favorably the raising of an issue, particularly a technical one, for the first time on appeal." Moran v. Raymond Corp., supra, 484 F.2d at 1011. We likewise are unwilling to allow
B. Entry of Judgment N. O. V.
Halsell challenges the district court's entry of judgment n. o. v. on the ground that substantial evidence supported the jury's responses to interrogatories 1 and 3. The jury responded affirmatively to interrogatory number 1, finding that Kimberly-Clark had breached its employment contract with Henry Halsell. The district court, nevertheless, granted Kimberly-Clark judgment n. o. v. because
In determining whether a party is entitled to judgment notwithstanding an adverse jury verdict, the trial court must view the evidence in the light most favorable to the party who prevailed before the jury. Walsh v. Ingersoll-Rand Co., 656 F.2d 367 (8th Cir. 1981). The court should grant a motion for judgment n. o. v. if, without weighing the witnesses' credibility, only one reasonable conclusion follows from the evidence presented. Davis v. Burlington Northern, Inc., 541 F.2d 182, 186 (8th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976).
In entering a judgment n. o. v., the district court ruled that, as a matter of law, the parties had not presented sufficient evidence to create an issue for the jury. Here, the court determined that under either Wisconsin or Arkansas law, the employment contract between Henry Halsell and Kimberly-Clark was terminable at will of either party. Under Wisconsin law (lex locus contractus) an employment relation continues at the will of either party in the absence of a specific contractual limitation. See Hanson v. Chicago, Burlington and Quincy Railroad, 282 F.2d 758 (7th Cir. 1960); Ward v. Frito-Lay, Inc., 95 Wis.2d 372, 290 N.W.2d 536 (1980); Goff v. Massachusetts Protective Association, 46 Wis.2d 712, 176 N.W.2d 576 (1970); Forrer v. Sears, Roebuck & Co., 36 Wis.2d 388, 153 N.W.2d 587 (1967). Arkansas law (lex fori) also makes a contract of employment terminable at the will of either party if it contains no agreement as to a specific length of time. See Tinnon v. Missouri Pacific Railroad, 282 F.2d 773 (8th Cir. 1960). M.B.M. Co. v. Counce, 596 S.W.2d 681 (Ark.1980); Miller v. Missouri Pacific Transportation Co., 283 S.W.2d 158 (Ark.1955); Petty v. Missouri & Arkansas Railway, 205 Ark. 990, 167 S.W.2d 895, cert. denied, 320 U.S. 738, 64 S.Ct. 37, 88 L.Ed. 437 (1943).
In this case, the district court concluded that the employment agreement between Halsell and Kimberly-Clark was not for a specified time, "under the undisputed evidence in this case." Halsell v. Kimberly-Clark Corp., supra, 518 F.Supp. at 695.
Halsell argues on appeal that the parties disputed the duration of his employment contract with Kimberly-Clark. Halsell maintains that he offered evidence to support his contention that he had a contract of definite duration; that his employment would end when he reached retirement age. Kimberly-Clark, by contrast, alleged that it had hired Halsell for an indefinite period of time.
We cannot accept Halsell's assertion that the parties had presented conflicting evidence as to the duration of Halsell's employment contract. Halsell failed to produce any evidence that Kimberly-Clark had hired him for a definite period of time. The advertisement to which he responded stated that the employee would be "a permanent member of the staff," but that language merely indicated that the company did not seek to hire a manager for a single project only. Moreover, Halsell sought but failed to secure a written employment
The district court indicated in its opinion that it would have directed a verdict for Kimberly-Clark at the close of the case, but reserved its ruling in accordance with the preferred practice of submitting such questions to the jury. See Halsell v. Kimberly-Clark Corp., supra, 518 F.Supp. at 695. Because the same standard applies to a motion for judgment n. o. v. as to a motion for a directed verdict, Smith v. Hussmann Refrigerator Co., 619 F.2d 1229, 1235 (8th Cir.) (en banc), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980); Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir. 1968), the court determined that Kimberly-Clark was entitled to a judgment n. o. v. as a matter of law.
After reviewing the record, we agree with the district court's conclusion that the facts presented at trial establish that Kimberly-Clark employed Halsell for an indefinite period of time. Thus, the employment was terminable at the will of either party. Having affirmed the district court's entry of judgment n. o. v. in favor of Kimberly-Clark, we need not review the district court's ruling on damages.
We affirm the district court's rulings on all of Henry Halsell's claims against Kimberly-Clark. The district court properly entered summary judgment on Halsell's defamation claim. After reviewing the record in this case, we also believe the district court acted properly in directing a verdict in favor of Kimberly-Clark on Halsell's ADEA claim. Finally, we affirm the district court's entry of judgment n. o. v. on Halsell's contract claim.
In particular, we recognize no impediment to our consideration of Tinnell's testimony taken out of turn in evaluating Kimberly-Clark's rebuttal testimony.
Unlike the case now before us, the plaintiff in Tribble had presented evidence from which the jury could infer that the plaintiff's age contributed to his discharge. "We believe that the jury could reasonably believe that age, as well as the [intracompany] reorganization, was a determining factor in Westinghouse's decision to eliminate Tribble's position and not hire Tribble into any other available job." Id. Accordingly, the court concluded that the district court had properly denied Westinghouse's motion for a directed verdict on Tribble's ADEA claim.
Because Halsell failed to introduce evidence from which a jury could infer that his age was a factor in his discharge, our affirmance of the directed verdict in the instant case creates no inconsistency with Tribble.