Russell v. McKinney Hospital Venture , 235 F.3d 219 ( 2001 )

REVISED, JANUARY 5, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41390
_____________________
SANDRA RUSSELL
Plaintiff - Appellant
v.
MCKINNEY HOSPITAL VENTURE, a joint venture
of Parkway Hospital, Inc. and NTMC Venture,
Inc., d/b/a Columbia Medical Center of McKinney,
d/b/a Columbia Homecare of McKinney; NTMC
VENTURE, INC., d/b/a Columbia Medical Center of
McKinney; COLUMBIA HOMECARE OF MCKINNEY
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
December 6, 2000
Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN,*
District Judge.
KING, Chief Judge:
Plaintiff-Appellant Sandra Russell appeals from the district
court’s order granting Defendants-Appellees judgment as a matter
of law in this case brought under the Age Discrimination in
*
District Judge of the Northern District of Texas,
sitting by designation.
Employment Act. For the following reasons, we AFFIRM in part and
REVERSE in part.
I. BACKGROUND
On October 9, 1995, fifty-four year old Sandra Russell began
employment for Columbia Homecare of McKinney (“Homecare”) as the
Director of Clinical Services. Carol Jacobsen, age fifty-three
and Russell’s immediate supervisor, also began working at
Homecare on the same day. In January 1996, Steve Ciulla, age
twenty-eight, was hired as the Director of Operations, a position
that was to be at the same level as Russell’s position and one
that reported to Jacobsen as well. Ciulla was the son of the
Chief Executive Officer of Columbia Medical Center of McKinney
(“Medical Center”), the parent company of Homecare.
On January 27, 1997, Russell was terminated from her
employment. Subsequently, on April 23, 1998, Russell filed suit
in federal district court1 charging defendants with violating the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 623(a)(1) (1999).2 A jury trial commenced on July 12, 1999. At
1
Russell had originally filed her suit in Texas state
court, which defendants subsequently removed to federal district
court. Russell moved to remand, but the district court denied
her motion.
2
Under the ADEA, it is unlawful “to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1) (1999).
2
the close of Russell’s case in full, defendants moved for
judgment as a matter of law, pursuant to Rule 50 of the Federal
Rules of Civil Procedure. The district court responded that it
would take the motion under advisement and would render a ruling
after the jury returned its verdict. On July 15, 1999, the jury
returned a verdict in favor of Russell, granting her $25,000 in
back pay. The jury further found that defendants had willfully
violated the ADEA, but did not assess any liquidated damages.
Defendants renewed their motion for judgment as a matter of law,
which the district court granted on November 1, 1999. Russell
timely appeals.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of a motion for
judgment as a matter of law, applying the same standard as the
district court. See Price v. Marathon Cheese Corp., 119 F.3d
330, 333 (5th Cir. 1997). Judgment as a matter of law is
appropriate if “there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue.” FED.
R. CIV. P. 50(a). Reviewing all of the evidence in the record, we
“must draw all reasonable inferences in favor of the nonmoving
party, and [we] may not make credibility determinations or weigh
the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 120 S.
Ct. 2097, 2110 (2000); see also Boeing Co. v. Shipman, 411 F.2d
3
365, 374-75 (5th Cir. 1969) (en banc) (stating that it is the
function of the jury to weigh conflicting evidence and inferences
and determine the credibility to be accorded to the witnesses).
In so doing, we “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Reeves,
120 S. Ct. at 2110.
III. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE JURY VERDICT
To determine whether judgment as a matter of law against
Russell was appropriate, we must ascertain if sufficient evidence
existed for a reasonable jury to find age discrimination. This
inquiry is driven by the Supreme Court’s most recent statement on
the standard for granting judgment as a matter of law, Reeves v.
Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000). We
thus set out this analytical framework, and then analyze whether
the evidence was sufficient to sustain the jury verdict in this
case.
A. Analytical Framework
A plaintiff can prove a claim of intentional discrimination
by either direct or circumstantial evidence. Absent direct
evidence of discriminatory intent, as is typically the case,
proof via circumstantial evidence is assembled using the
framework set forth in the seminal case of McDonnell Douglas
4
Corp. v. Green, 411 U.S. 792 (1973).3 “First, the plaintiff must
establish a prima facie case of discrimination.” Reeves, 120 S.
Ct. at 2106. Second, the employer must respond with a
legitimate, nondiscriminatory reason for its decision. See
McDonnell Douglas, 411 U.S. at 802. This burden on the employer
is only one of production, not persuasion, involving no
credibility assessments. See Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255-56 (1981). Third, if the employer
carries its burden, the “mandatory inference of discrimination”
created by the plaintiff’s prima facie case, Burdine, 450 U.S. at
256 n.10, “drops out of the picture” and the fact finder must
“decide the ultimate question: whether [the] plaintiff has proven
[intentional discrimination],” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 511-12 (1993).
In making this showing, the plaintiff can rely on evidence
that the employer’s reasons were a pretext for unlawful
discrimination. See McDonnell Douglas, 411 U.S. at 804. “[T]he
trier of fact may still consider the evidence establishing the
plaintiff’s prima facie case ‘and inferences properly drawn
3
Russell is asserting her claim of disparate treatment
under the ADEA. “Although McDonnell Douglas is a Title VII case,
we have previously held that its framework is applicable to ADEA
cases.” Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 n.3 (5th
Cir. 1996); see also Bauer v. Albemarle Corp., 169 F.3d 962, 966
(5th Cir. 1999) (“The same evidentiary procedure for allocating
burdens of production and proof applies to discrimination claims
under both [Title VII and the ADEA].”). Thus, we will examine
Russell’s ADEA claim under the well-established Title VII rubric
of analysis.
5
therefrom . . . on the issue of whether the defendant’s
explanation is pretextual.’” Reeves, 120 S. Ct. at 2106 (quoting
Burdine, 450 U.S. at 255 n.10). However, as the Court stated in
Hicks, a showing of pretext does not automatically entitle an
employee to a judgment as a matter of law. See 509 U.S. at 524.
It is “not enough . . . to disbelieve the employer; the [fact
finder] must believe the plaintiff’s explanation of intentional
discrimination.” Id. at 519 (emphasis in original). This
statement in Hicks caused confusion as to whether intentional
discrimination could be inferred from a showing of pretext. See
Reeves, 120 S. Ct. at 2104-05 (describing the circuit conflict
resulting from the confusion).
The Supreme Court resolved the circuit split by repudiating
the “pretext-plus” approach, thus overruling our decision below,
Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688 (5th
Cir. 1999). See Reeves, 120 S. Ct. at 2108. A unanimous Court
held that this circuit had “misconceived the evidentiary burden
borne by plaintiffs who attempt to prove intentional
discrimination through indirect evidence.” Id. “Thus, a
plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employee unlawfully
discriminated.” Id. at 2109.
The Court further stated that, more likely than not, a
showing of pretext will lead to an inference of discrimination:
6
“Moreover, once the employer’s justification has been eliminated,
discrimination may well be the most likely alternative
explanation, especially since the employer is in the best
position to put forth the actual reason for its decision.” Id.
at 2108-09.
The Court also cautioned that there may be instances,
although rare, where a showing of pretext would not be sufficient
to infer discrimination. Such a situation would occur “if the
record conclusively revealed some other, nondiscriminatory reason
for the employer’s decision, or if the plaintiff created only a
weak issue of fact as to whether the employer’s reason was untrue
and there was abundant and uncontroverted independent evidence
that no discrimination occurred.” Id. at 2109.4
4
By its ruling in Reeves, the Supreme Court repudiated
part of our en banc decision in Rhodes v. Guiberson Oil Tools, 75
F.3d 989 (1996). The Court noted that Rhodes stood for the
proposition that the “plaintiff must introduce sufficient
evidence for [the] jury to find both that [the] employer’s reason
was false and that [the] real reason was discrimination.”
Reeves, 120 S. Ct. at 2105 (emphasis added) (statement in
parenthetical). This pretext-plus requirement is contrary to the
Court’s holding that the employer’s prevarication may be
sufficient in many cases to demonstrate discriminatory animus.
See id. at 2108-09. While portions of our Rhodes opinion do not
fully comport with Reeves, we have previously recognized that
there are central features of Rhodes that endure. See Vadie v.
Miss. State Univ., 218 F.3d 365, 373 n.23 (5th Cir. 2000)
(“Rhodes is consistent with Reeves and continues to be the
governing standard in this circuit.”). We do not see much to be
gained from dissecting Rhodes to divine those features. Rather,
we simply comply with the Supreme Court’s mandate in Reeves not
to substitute our judgment for that of the jury and not to unduly
restrict a plaintiff’s circumstantial case of discrimination. We
therefore underscore that Reeves is the authoritative statement
regarding the standard for judgment as a matter of law in
7
With this framework in mind, we proceed to analyze Russell’s
evidence supporting her ADEA claim.
B. Application of the Analytical Framework
Under the McDonnell Douglas circumstantial evidence
framework, to make out a prima facie case of age discrimination
under the ADEA, a plaintiff must establish:
(1) [she] was discharged; (2) [she] was qualified for
[her] position; (3) [she] was within the protected
class; and (4) [she] was replaced by someone outside
the protected class, someone younger, or was otherwise
discharged because of age.
Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996)
(citations omitted). It is undisputed that Russell satisfied her
burden to establish a prima facie case of discrimination.5 In
response, defendants put forth the need for a new management
style as their legitimate reason for terminating Russell.
Russell disputed this proffered justification, contending that
discrimination cases. Reeves guides our decisions, and insofar
as Rhodes is inconsistent with Reeves, we follow Reeves.
5
Defendants stipulated to the prima facie case because
Russell established that she was terminated, that she was
qualified for her position, that she was in her mid-fifties, and
that she was replaced by a woman in her early-thirties.
Defendants contended in their supplemental brief that
because they stipulated to the prima facie case, it is somehow
infirm. This argument is wholly without merit. First,
stipulations do not weaken the evidence. Second, the Supreme
Court has stated that for a case that is “fully tried on the
merits,” the sufficiency of the prima facie case as such is “no
longer relevant.” See United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714, 715 (1983).
8
the real reason for her termination was Ciulla’s age-based
animus.
While evidence beyond that of the prima facie case and
pretext clearly is not required, see supra Part III.A, Russell
provided additional evidence of discrimination. Because we
review the entire record when considering a motion for a judgment
as a matter of law, see Reeves, 120 S. Ct. at 2110, we first
examine Russell’s evidence of pretext and then her additional
evidence of discrimination.
1. Evidence of Pretext
Defendants’ proffered reason for Russell’s termination was
that “a change in management style” was needed. We find that
Russell provided sufficient evidence to create a jury issue that
this justification was pretextual.
At trial, Russell demonstrated that she had received a very
favorable evaluation from her supervisor Jacobsen only two months
prior to her termination. On that evaluation, Russell was noted
as “exceptional” or “exceeding expectations” in all the relevant
categories but one, in which she received a “meets standards”
rating.6 Jacobsen conceded that Russell was not given a formal
6
The rating guide was as follows: 4 - “exceptional
performance”; 3 - “exceeds standards”; 2 - “meets standards”; 1 -
“almost meets standards”; and 0 - “does not meet standards.”
Russell received her “2” rating in a cost-control category
(“manages the utilization of supplies and equipment”).
9
oral warning, a written warning, or a “corrective action plan,”
all of which are required by Homecare’s own internal procedures.
In addition, Dayna Westmoreland, Jacobsen’s administrative
assistant, testified that Jacobsen received (what Jacobsen
herself termed) an “ultimatum” from Ciulla that he would quit if
Russell were not fired. During the four days between Ciulla’s
ultimatum and Russell’s termination, Jacobsen called a special
meeting of nurses under Russell’s supervision, during which some
indicated that they were unhappy with Russell. Thus, the jury
had before it evidence that the meeting was hastily assembled
immediately after Ciulla’s ultimatum and that Russell was fired
only a few days after the ultimatum.
Russell also elicited information from two nurses, who were
defendants’ witnesses, that Russell did an “excellent” job of
keeping the facility in federal compliance. As for feeling
belittled from Russell’s “nitpicking,” the nurses conceded that
the reprimands occurred when they committed errors that were
violations of professional and federal rules regarding accuracy
of data and dispensing medication to patients.7 In addition,
Russell produced evidence at trial that Homecare dominated the
7
For example, one of the nurses was reprimanded for
giving a patient insulin without a doctor’s authorization.
10
healthcare market, thus casting doubt upon defendants’ contention
that the nurses were “disinterested” witnesses.8
Although defendants contested Russell’s case, their evidence
is not of such magnitude that a reasonable jury could only find
in their favor (i.e., that their justification for terminating
Russell was not pretextual). All defendants have demonstrated is
that they disputed Russell’s characterization of the events and
put forth evidence to support their position. The record reveals
that Russell countered defendants’ arguments and created
conflicts in substantial evidence. See Boeing, 411 F.2d at 375.
The jury had both conflicting versions before it and apparently
did not find credible defendants’ explanation that the ratings
reflected serious management style issues, that tensions with
other staff stemmed from Russell’s inability to work with people
(versus Russell’s ensuring that Homecare was in federal
compliance), and that the special meeting with the nurses was
entirely aboveboard. See Reeves, 120 S. Ct. at 2110 (stating
that courts are not required to give credence to evidence
supporting defendants that is not uncontradicted and
unimpeached); see also United States v. Ramos-Garcia, 184 F.3d
463, 466 (5th Cir. 1999) (stating that the jury evidently did not
believe the alternative explanation of the events and that the
8
Defendants had argued that because the nurses no longer
worked for Homecare during the time of the trial, they were
“disinterested” witnesses.
11
court would “‘not second guess the jury in its choice’”);
Woodhouse v. Magnolia Hosp., 92 F.3d 248, 254 (5th Cir. 1996)
(“The jury was presented conflicting evidence . . . [and]
apparently chose to believe that [age was a criterion in the
decision].”); United States v. Kaufman, 858 F.2d 994, 1004 (5th
Cir. 1988) (finding that it was a “serious mistake . . . to
second-guess judgments that . . . [were made] firsthand”); Fowler
v. Carrollton Pub. Library, 799 F.2d 976, 984 (5th Cir. 1986)
(“Motivation presents a classic jury issue.”).
The jury, with its ability to listen to live testimony, was
in a better position to judge the credibility of the witnesses
and the accounts of the events; as such, we will not second guess
their rejection of defendants’ proffered justification. See
Reeves, 120 S. Ct. at 2110 (stating that the court “may not make
credibility determinations or weigh the evidence”); Vance v.
Union Planters Corp., 209 F.3d 438, 443 (5th Cir. 2000) (stating
that the court “[lacked] the jury’s opportunity to observe [the
witness’s] demeanor and hear his voice” and this fact contributed
to the court’s confidence in the jury’s verdict).
2. Additional Evidence of Discrimination
In addition to establishing a prima facie case of
discrimination and creating a jury issue as to the veracity of
defendants’ explanation, Russell introduced evidence of oral
12
statements that supported her case of age discrimination.9 The
value of such remarks is dependent upon the content of the
remarks and the speaker. See Reeves, 120 S. Ct. at 2111 (finding
that the age-related comments further supported the jury’s
verdict of liability because the content of the remarks indicated
“age-based animus” and the speaker was “principally responsible
for [the plaintiff’s] firing.”).
The four-part test of Brown v. CSC Logic, Inc., 82 F.3d 651
(5th Cir. 1996),10 was originally devised in order to address a
situation in which one of the elements of the plaintiff’s prima
facie case is missing and the plaintiff attempts to remedy the
deficiency by adducing evidence of discrimination in the form of
remarks evidencing animus or bias. That said, the four-part test
has been widely used in this circuit, notably by the panel that
decided Reeves. See Reeves, 197 F.3d at 692-93. The Court in
Reeves made clear that viewing remarks that a jury could find to
evidence animus through the harsh lens employed by the Reeves
panel (which, in turn, relied upon Brown) was unacceptable:
The [Fifth Circuit] also failed to draw all reasonable
inferences in favor of petitioner. For instance, while
9
We note that such remarks could also be utilized by a
plaintiff to demonstrate pretext.
10
“[R]emarks may serve as sufficient evidence of age
discrimination if the offered comments are: 1) age related; 2)
proximate in time to the terminations; 3) made by an individual
with authority over the employment decision at issue; and 4)
related to the employment decision at issue.” Brown, 82 F.3d at
655 (emphasis added).
13
acknowledging “the potentially damning nature” of [the]
age-related comments, the court discounted them on the
ground that they “were not made in the direct context
of [the plaintiff’s] termination.”
120 S. Ct. at 2111 (citation omitted).
The remarks at issue in this case are certainly appropriate
additional circumstantial evidence of age discrimination because
their content indicates age animus and the speaker (Ciulla) was
primarily responsible for Russell’s termination. See Reeves, 120
S. Ct. at 2111. Russell revealed at trial that Ciulla frequently
referred to her as “old bitch.”11 She testified that the constant
drumbeat of “old bitch” forced her to get earplugs so she would
be able to work in the office. Russell also testified that
11
Russell also testified that Ciulla “viciously” referred
to her as “Miss Daisy.” In addition, the evidence revealed that
one of Ciulla’s employees created a cover to a book of work
discrepancies kept by Homecare; the cover read “Miss Daisy’s
Discrepancy Book.” It is uncontested that the “Miss Daisy”
remarks had an innocuous beginning. In the summer of 1996, Gwen
Morris, Homecare’s Quality Assurance Director, began referring to
Russell in jest as “Miss Daisy.” In the course of managing
nurses from regional offices and reviewing their paperwork for
regulatory compliance, Russell and Morris regularly traveled
together to outlying locations. On these occasions, Russell
drove because Morris preferred not to drive. Morris, who is
African American, found the situation amusing in light of the
film Driving Miss Daisy, in which an African-American man
chauffeurs a Caucasian woman. Viewing references to Russell as
Miss Daisy as evidence of age-based animus is considerably more
difficult than so viewing the “old bitch” comments.
Russell also recounted a conversation between herself
and Jacobsen that occurred when she spoke with Jacobsen about her
problems with Ciulla: Russell asked whether she should be seeking
other employment, and Jacobsen replied, “You and I really don’t
have to work but Steve Ciulla has a young family.” We agree with
defendants that a reasonable jury could not find that this
comment evidences age-based discrimination.
14
Ciulla laughed at her when she confronted him about his dealings
with her. We determine that the jury could find the repeated use
of “old bitch” indicates that Ciulla had discriminatory
motivations.12 That Ciulla did not explicitly remark to Russell,
“I do not like you because you are old,” does not render
Russell’s evidence infirm. See, e.g., Normand, 927 F.2d at 864
n.4 (“[I]ndirect references to an employee’s age . . . can
support an inference of age discrimination.”). Thus, the content
of Ciulla’s remarks could be found by a jury to manifest age
animus.
Next, a jury could find that these remarks were made by one
“principally responsible” for Russell’s termination. See Reeves,
120 S. Ct. at 2110. Typically, the person with authority over
the employment decision is the one who executes the action
against the employee. However, that is not necessarily the case.
See Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996)
(“[O]rdinary employees . . . normally [cannot affect the
employment of their co-employees.]” (emphasis added)). If the
employee can demonstrate that others had influence or leverage
over the official decisionmaker, and thus were not ordinary
coworkers, it is proper to impute their discriminatory attitudes
12
Ciulla disputes that he repeatedly called Russell “old
bitch,” but in reviewing judgment as a matter of law, we make all
reasonable inferences in favor of the nonmoving party and do not
make credibility determinations. See Reeves, 120 S. Ct. at 2110.
Further, defendants on appeal also concede that we must take as
true that Ciulla made those comments.
15
to the formal decisionmaker. See, e.g., id. at 307 (stating that
if official decisionmaker “merely ‘rubber stamped’” the wishes of
others, that decisionmaker would inherit the discriminatory
taint); Haas v. Advo Sys., Inc., 168 F.3d 732, 734 n.1 (5th Cir.
1999) (rejecting defendant’s argument that subordinate exerted no
influence over ultimate decisionmaker and thus determining that
sufficient evidence existed to demonstrate a causal nexus between
the discriminatory remarks and the employment decision (citing
Long, 88 F.3d at 307)).
Our sister circuits also support this approach.13 For
instance, in Shager v. Upjohn Co., Judge Posner, writing for a
panel of the Court of Appeals for the Seventh Circuit, reversed a
summary judgment for the employer in an ADEA case, finding that
the influence of the person with the discriminatory attitude may
well have been decisive in the employment decision. See 913 F.3d
398, 405 (7th Cir. 1990). “If the [formal decisionmakers] acted
as the conduit of [the employee’s] prejudice — his cat’s paw —
the innocence of the [decisionmakers] would not spare the company
from liability.” Id.
Many circuit cases have also echoed the idea underlying
Judge Posner’s “cat’s paw” analysis that courts will not blindly
13
If this were not so and we adhered to a rigid
formalistic application, employers could easily insulate
themselves from liability by ensuring that the one who performed
the employment action was isolated from the employee, thus
eviscerating the spirit of the “actual decisionmaker” guideline.
16
accept the titular decisionmaker as the true decisionmaker: “[A]
defendant may be held liable if the manager who discharged the
plaintiff merely acted as a rubber stamp, or the ‘cat’s paw,’ for
a subordinate employee’s prejudice, even if the manager lacked
discriminatory intent.” Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1231 (10th Cir. 2000) (citing, inter alia, Long,
88 F.3d at 307); see also Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (stating that
“discriminatory comments . . . made by the key decisionmaker or
those in a position to influence the decisionmaker” can be used
by the plaintiff to establish pretext); Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998)
(“[Decisionmaker] rule was never intended to apply
formalistically, and [thus] remarks by those who did not
independently have the authority or did not directly exercise
their authority to fire the plaintiff, but who nevertheless
played a meaningful role in the decision to terminate the
plaintiff, [are] relevant.”); Griffin v. Washington Convention
Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“[E]vidence of a
subordinate’s bias is relevant where the ultimate decision maker
is not insulated from the subordinate’s influence.”); Llampallas
v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998)
(“In a cat’s paw situation, the harasser clearly causes the
tangible employment action, regardless of which individual
actually signs the employee’s walking papers.”); Long, 88 F.3d at
17
307 (citing Shager); Kientzy v. McDonnell Douglas Corp., 990 F.2d
1051, 1060 (8th Cir. 1993) (“A reasonable jury could have found
that [the employee] used [the decisionmakers] as the conduit of
his prejudice — ‘his cat’s paw.’”).
We therefore look to who actually made the decision or
caused the decision to be made, not simply to who officially made
the decision. Consequently, it is appropriate to tag the
employer with an employee’s age-based animus if the evidence
indicates that the worker possessed leverage, or exerted
influence, over the titular decisionmaker.
As in Reeves, Russell fortified her evidence of age-related
remarks by “[introducing] evidence that [the speaker of the
discriminatory remarks] was the actual decisionmaker behind [her]
firing.” Reeves, 120 S. Ct. at 2111 (emphasis added).
Defendants repeatedly emphasize that Russell and Ciulla were both
managers at the same level and that Russell was officially
terminated by Jacobsen, her supervisor, not by Ciulla. However,
Russell presented adequate evidence at trial for a jury to find
that Ciulla wielded sufficiently great “informal” power within
Homecare such that he effectively became the decisionmaker with
respect to Russell’s termination. See id. (finding that the
source of the age-related remarks was the actual decisionmaker
because of his influence over the company president, his wife,
who officially terminated the employee); see also Griffin, 142
18
F.3d at 1312 (collecting cases from various circuits, including
the Fifth Circuit).
To demonstrate that Ciulla was the de facto decisionmaker,
Russell points to the following evidence: Ciulla gave Jacobsen
an ultimatum that he would quit if she did not fire Russell14;
Jacobsen’s budget was controlled by Ciulla’s father; Jacobsen
went crying to her assistant Dayna Westmoreland immediately after
Ciulla’s ultimatum; before the ultimatum, Jacobsen had told
Russell that she was not going to lose her job over the friction
between Russell and Ciulla; Ciulla unilaterally transferred an
employee under Russell’s supervision without her knowledge or
consent; and Ciulla received “perks” that his colleagues did not,
such as arriving late at work with impunity, setting up a ping-
pong table outside his office, and playing in charity golf
tournaments on company time.
A jury could find that Ciulla possessed power greater than
that of the ordinary worker at his level due to his father’s
position as CEO of the parent corporation and that Ciulla took
advantage of that power. Furthermore, the evidence also
established that Jacobsen was afraid of losing her job. The jury
could find that Jacobsen believed her options were limited by the
fact that Ciulla was the son of the CEO, who controlled her job
14
Again, Ciulla denies giving Jacobsen the ultimatum, but
we take as true that he did. See supra note 12.
19
and her budget.15 Thus, it would not be unreasonable for the jury
to conclude that Jacobsen essentially regarded her decision to
terminate Russell as ordained by other forces. Whatever the
formal hierarchy of Homecare might be, the jury could reasonably
find that Ciulla contributed significantly to the termination
decision officially made by Jacobsen.16 In the language of
Reeves, a jury could find that Ciulla “was motivated by age-based
15
While the “perks” received by Ciulla are insufficient,
per se, to support the inference that he had power over the
decision to terminate Russell, they do provide evidence of his
“informal” power within the organization — a power which played a
role in Jacobsen’s decision. Similarly, in Reeves, the Supreme
Court took into account that a “letter authored by [the
individual with the discriminatory animus] indicated that he
berated other company directors, who were supposedly his co-
equals, about how to do their jobs.” 120 S. Ct. at 2111. Thus,
as in this case, the evidence demonstrated that an employee
possessed greater power than other employees at his level,
strengthening the link between the age-related remarks and the
employment decision and providing further support for the
reasonableness of the jury’s verdict. See id.
16
Defendants also argue that the “same actor” inference
applies. The “same actor” inference arises when the individual
who allegedly discriminated against the plaintiff was the same
individual who hired the plaintiff and gives rise to an inference
that discrimination was not the motive behind plaintiff’s
termination. See Brown, 82 F.3d at 658. In this case,
defendants assert that the same person who hired Russell,
Jacobsen, was also the same person who fired her. However, it
was not uncontested that Jacobsen hired Russell, and thus, the
inference is not automatic. Russell presented evidence that she
was hired and then did a courtesy interview with Jacobsen, who
had also recently been hired. Again, the jury had both versions
before it and had the opportunity to take the information into
account in whatever fashion it found credible. We will not
substitute our interpretation for that of the jury. Further, we
also note that the “same actor” inference does “not rule out the
possibility that an individual could prove a case of
discrimination.” Id.
20
animus and was principally responsible for [the plaintiff’s]
firing.” Reeves, 120 S. Ct. at 2110.17 His remarks contribute to
the evidence demonstrating that the jury’s finding of age
discrimination was not unreasonable.
In light of the Supreme Court’s admonition in Reeves, our
pre-Reeves jurisprudence regarding so-called “stray remarks” must
be viewed cautiously.18 See Reeves, 120 S. Ct. at 2111. Before
Reeves was decided by the Supreme Court, we warned that “the
‘stray remark’ jurisprudence is itself inconsistent with the
deference appellate courts traditionally allow juries regarding
their view of the evidence presented and so should be narrowly
cabined.” Vance v. Union Planters Corp., 209 F.3d 438, 442 n.4
(5th Cir. 2000). Just so. Age-related remarks are appropriately
taken into account when analyzing the evidence supporting the
jury’s verdict (even if not in the direct context of the
decision19 and even if uttered by one other than the formal
17
We also note that the fact that Jacobsen herself was
similar in age to Russell, although relevant and appropriate for
the jury to consider, “is certainly not dispositive.” Reeves,
120 S. Ct. at 2111 (stating that evidence of defendant employing
other employees over the age of fifty does not negate
discriminatory motivation regarding the plaintiff).
18
See, e.g., Boyd v. State Farm Ins. Co., 158 F.3d 326
(5th Cir. 1998).
19
In our post-Reeves case, Rubinstein v. Administrators of
the Tulane Educational Fund, we affirmed summary judgment for the
employer on several claims (and affirmed the jury verdict for the
employee on the remaining claim). See 218 F.3d 392 (5th Cir.
2000). The Rubinstein plaintiff’s case fell into the narrow
exceptions crafted by Reeves that “the record conclusively
21
decisionmaker, provided that the individual is in a position to
influence the decision).
Judge Posner recently explained the distinction between
cases in which “stray remarks” were not taken into account in
examining the plaintiff’s case and cases in which such remarks
are appropriately considered:
All that these [“stray remarks”] cases hold — and all
they could hold and still make any sense — is that the
fact that someone who is not involved in the employment
decision of which the plaintiff complains expressed
discriminatory feelings is not evidence that the
decision had a discriminatory motivation. That is
simple common sense. It is different when . . . it may
be possible to infer that the decision makers were
influenced by [the discriminatory] feelings in making
their decision. . . . Emanating from a source that
influenced the personnel action (or nonaction) of which
these plaintiffs complain, the derogatory comments
became evidence of discrimination.
Hunt v. City of Markham, Ill., 219 F.3d 649, 652-53 (7th Cir.
2000) (emphasis in original) (internal citations omitted).
revealed some other, nondiscriminatory reason . . ., or [that]
the plaintiff created only a weak issue of fact as to . . .
[pretext] and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.” 120 S. Ct. at
2109. In marked contrast to the instant case, the Rubinstein
record was “replete with evidence of [the employee’s] poor . . .
evaluations,” Rubinstein, 218 F.3d at 400, evidence that was so
overwhelming as to make summary judgment for the employer
appropriate in spite of evidence of discriminatory animus in the
form of remarks that the plaintiff wholly failed to tie to any
potentially relevant time frame. In our remarks jurisprudence,
Rubinstein stands only for the proposition that an overwhelming
case that the adverse employment actions at issue were
attributable to a legitimate, nondiscriminatory reason will not
be defeated by remarks that have no link whatsoever to any
potentially relevant time frame. Were we to read more into
Rubenstein in this regard, it would be in direct conflict with
Reeves.
22
We determine that there was sufficient evidence for the jury
to find that defendants discriminated against Russell on the
basis of age. Russell established a prima facie case, introduced
sufficient evidence for the jury to reject the defendants’ reason
for her termination, and produced additional evidence of age-
based animus. See Reeves, 120 S. Ct. at 2112. This case was
“based upon the accumulation of circumstantial evidence and the
credibility determinations that were required. We conclude that
‘reasonable men could differ’ about the presence of age
discrimination, Boeing, 411 F.2d at 374, and we must thus reverse
the district court’s judgment [as a matter of law] and reinstate
the jury’s verdict.” Normand, 927 F.2d at 864-65.
3. Willful Violation of the ADEA
The ADEA is willfully violated if the employer “acts in
‘reckless disregard’ of the requirements of the ADEA.” Normand,
927 F.2d at 865 (citing Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 128-29 (1985)). This test applies not only to
cases in which there is formal discrimination, but also to cases
in which the age factor is used on an informal, ad hoc basis.
See Hazen Paper Co. v. Biggins, 507 U.S. 604, 616-17 (1993). An
employer who willfully violates the ADEA is subject to liquidated
damages. See 29 U.S.C. § 626(b) (1999). “The Supreme Court has
held that liquidated damages are a punitive sanction and should
be reserved for the most egregious violations of the ADEA.”
23
Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470
(5th Cir.), cert. denied, 493 U.S. 842 (1989) (citing Trans World
Airlines, 469 U.S. at 125).
As we have discussed in Part III.B, supra, both sides
presented evidence supporting their respective versions of the
events. While the jury could quite reasonably find defendants
violated the ADEA, we conclude that the same cannot be said for a
willful violation. We do not find evidence in the record to
support the jury’s determination that defendants’ conduct was
such that it amounted to “reckless disregard.” See Trans World
Airlines, 469 U.S. at 127-28 (stating that simply knowing of the
potential applicability of the ADEA does not meet the “reckless
disregard” standard because it would be contrary to legislative
intent by making every violation a willful violation); see also
Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999) (stating
that there was sufficient evidence for the jury to conclude
employer’s actions were willful when plaintiff presented evidence
of company memorandum that categorized employees by age); Burns
v. Tex. City Refining, Inc., 890 F.2d 747, 751-52 (5th Cir. 1989)
(finding a willful violation when plaintiff presented evidence
that employer acted to terminate him because of his age and
before his pension benefits vested); Powell v. Rockwell Int’l
Corp., 788 F.2d 279, 287-88 (5th Cir. 1986) (affirming jury
finding of willfulness in a case in which jury found that
plaintiff was fired in retaliation for exercising his ADEA
24
rights). As such, the jury finding of willfulness is not
supported by sufficient evidence. Because the jury awarded
Russell only back pay, and no liquidated damages, we do not
disturb the jury’s damage award.
V. CONCLUSION
For the above-stated reasons, the judgment of the district
court is REVERSED in part and the case is REMANDED with
instructions to reinstate the jury verdict as to a violation of
the ADEA and damages. We AFFIRM the judgment of the district
court as to a willful violation of the ADEA. Costs shall be
borne by defendants.
25