Andrew W. Hansard, Cross-Appellant v. Pepsi-Cola Metropolitan Bottling Co., Inc., D/B/A Pepsi-Cola Bottling Group, Cross-Appellee

865 F.2d 1461, 27 Fed. R. Serv. 644, 1989 U.S. App. LEXIS 1909, 49 Empl. Prac. Dec. (CCH) 38,764, 49 Fair Empl. Prac. Cas. (BNA) 197, 57 U.S.L.W. 2535
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 21, 1989
Docket87-1717
StatusPublished
Cited by158 cases

This text of 865 F.2d 1461 (Andrew W. Hansard, Cross-Appellant v. Pepsi-Cola Metropolitan Bottling Co., Inc., D/B/A Pepsi-Cola Bottling Group, Cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrew W. Hansard, Cross-Appellant v. Pepsi-Cola Metropolitan Bottling Co., Inc., D/B/A Pepsi-Cola Bottling Group, Cross-Appellee, 865 F.2d 1461, 27 Fed. R. Serv. 644, 1989 U.S. App. LEXIS 1909, 49 Empl. Prac. Dec. (CCH) 38,764, 49 Fair Empl. Prac. Cas. (BNA) 197, 57 U.S.L.W. 2535 (5th Cir. 1989).

Opinions

SNEED, Circuit Judge:

Pepsi-Cola Bottling Co., Inc. (Pepsi) was held liable for violating the Age Discrimination in Employment Act (ADEA) by discharging and later refusing to rehire Andrew Hansard. Pepsi appeals the jury’s verdict on liability and damages. We affirm the district court’s judgment on the merits, but we reverse and remand the award of damages. Hansard cross-appeals the district court’s refusal to award liquidated damages and prejudgment interest. We affirm the district court’s refusal to award liquidated damages, but reverse its refusal to award prejudgment interest. The jurisdiction of the district court rested on 29 U.S.C. § 626 (1982) and 28 U.S.C. § 1331 (1982). This court has jurisdiction under 28 U.S.C. § 1291.

I.

FACTS AND PROCEEDINGS BELOW

Hansard was employed by Uncle Joe’s Bottling Co. from 1974 until 1979 in Fort Worth, Texas. II Tr. 4, 12. In 1979, Pepsi acquired Uncle Joe’s Bottling Co. and Han-sard became a Pepsi employee. II Tr. 4, 15, 68-69. For most of his tenure, Han-sard worked on a delivery route servicing vending machines. II Tr. 14. In early 1983, the number of stops on Hansard’s route decreased, but instead of reducing his hours, Pepsi permitted Hansard to work in the warehouse after his delivery route was finished. II Tr. 22-25, 68-69.

In 1983, Pepsi reorganized its corporate structure, and responsibility for Hansard’s job was transferred to a different department. II Tr. 126-27. On June 20, 1983, Hansard met with three members of Pepsi’s management: Scott Barth, the regional sales manager; Ms. Michael Miller, the employee relations manager; and Mark Essel-man, an employee relations trainee. II Tr. 30-31. Hansard was the only employee invited to such a meeting. II Tr. 166. Hansard testified that Ms. Miller said that Hansard’s department was being reorganized and that Hansard would be delivering vending machines and syrup instead of stocking vending machines. Ms. Miller asked Hansard: “Do you think you can handle it [the job]?” II Tr. 32. Earlier Ms. Miller, in a discussion with Barth and Es-selman, had questioned Hansard’s ability to do the new job. II Tr. 141. Hansard testified that he responded to Ms. Miller: “Yes. I probably could handle it because I have done hard work all my life,” but “I would rather not do it if I could get out of it.” II Tr. 32. Ms. Miller’s version was different. She testified that Hansard refused the job and that she told Hansard that the only alternative was unemployment. II Tr. 132. Hansard testified there was “no way” he [1464]*1464refused a job and that “[t]here is nobody in there that I would think that I left [with] the impression that I wouldn’t do it, because I was willing to do it.” II Tr. 33. Hansard, who was fifty-nine, was replaced by a twenty-five-year-old man. II Tr. 4, 104.

Actions after the meeting increase the confusion. Pepsi’s personnel forms indicate Hansard “left work,” not that he was either fired or quit. II Tr. 163. Pepsi did not oppose Hansard’s application for unemployment benefits, which they were entitled to do if he had quit. II Tr. 172, 178. Finally, this incident occurred only seven months before Hansard’s pension rights were to vest. II Tr. 40.

In August 1983, Phillip Garcia, the regional sales manager, sought to create a “checker” position at the Fort Worth Pepsi plant. IV Tr. 10, 12. He asked Charles Miller, the warehouse manager, to fill the position. Ill Tr. 10, 18-19. Miller contacted Hansard, who was interested in the position, and recommended that Hansard be hired. II Tr. 19-20. Pepsi’s Employee Relations Department rejected this request, citing a company policy that forbade rehiring former employees. Ill Tr. 20-21; IV Tr. 15-16. Miller testified that he had never heard of such a policy. Ill Tr. 27. Miller further testified that he believed that Hansard was not rehired because of Pepsi’s “youth movement.” Ill Tr. 17. Pepsi was unable to produce any documentary evidence of the “no rehire” policy. Later, a twenty-three or twenty-four-year-old man was hired for this position. Ill Tr. 28.

A jury trial was held in July 1986. The jury returned a verdict in favor of Han-sard. R. 531-37. Hansard was awarded $61,149.44 in back wages (wages from the date of termination to trial) and $45,496.40 as front pay (lost wages from the date of trial until Hansard’s retirement). The jury also found that Pepsi’s actions were willful. See R. 532, 535.

The trial court refused to grant Pepsi’s motion for J.N.O.V. It declined to award Hansard liquidated damages, however, ruling that by carrying Pepsi's motion for a directed verdict, it could review the sufficiency of the evidence on this issue. R. 784. The court also denied Hansard’s request for prejudgment interest on Han-sard’s back pay award. R. 629-30.

We shall address the following issues in the order and under the headings indicated:

II. DENIAL OF PEPSI’S J.N.O.V. MOTION
A. Discharge
B. Age Discrimination
C. Refusal to Rehire
III. ADMISSION OF CHARLES MILLER’S OPINION
IV. PEPSI’S OBJECTIONS TO THE JURY INSTRUCTIONS
V. THE PROPRIETY OF HANSARD’S MONETARY RECOVERY
A. Back Pay
B. Front Pay
VI. THE ISSUES RAISED BY HAN-SARD’S CROSS-APPEAL

II.

DENIAL OF PEPSI’S J.N.O.V. MOTION

A. Discharge

Pepsi first argues that the trial court erred in refusing to grant its motion for J.N.O.V. because there was insufficient evidence to support the jury’s finding that Hansard was discharged. The proper standard for reviewing the trial court’s refusal to grant a motion for J.N.O.V. was set out in Boeing Co. v. Shipman:

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 the motion[] is proper. On the other hand, if there is ... evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[ ] should be denied....

411 F.2d 365, 374 (5th Cir.1969) (en banc).

The evidence in this case supported neither side overwhelmingly. It follows that there is sufficient evidence to support [1465]*1465the jury’s determination that Hansard was discharged. The jury was free to believe Hansard when he testified that he did not refuse any job that was offered to him. II Tr. 32. The fact that Hansard was the only employee with whom such a meeting was held lends circumstantial support to his testimony, particularly in combination with the absence of any Pepsi records to indicate that Hansard quit and Pepsi’s failure to contest Hansard’s unemployment benefits.

Pepsi relies on Elliott v.

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865 F.2d 1461, 27 Fed. R. Serv. 644, 1989 U.S. App. LEXIS 1909, 49 Empl. Prac. Dec. (CCH) 38,764, 49 Fair Empl. Prac. Cas. (BNA) 197, 57 U.S.L.W. 2535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrew-w-hansard-cross-appellant-v-pepsi-cola-metropolitan-bottling-co-ca5-1989.