Burger v. McGilley Memorial Chapels, Inc.

856 F.2d 1046, 3 I.E.R. Cas. (BNA) 1303, 1988 U.S. App. LEXIS 11859, 47 Empl. Prac. Dec. (CCH) 38,255, 47 Fair Empl. Prac. Cas. (BNA) 1290, 1988 WL 90276
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 1, 1988
DocketNo. 87-1160
StatusPublished
Cited by15 cases

This text of 856 F.2d 1046 (Burger v. McGilley Memorial Chapels, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burger v. McGilley Memorial Chapels, Inc., 856 F.2d 1046, 3 I.E.R. Cas. (BNA) 1303, 1988 U.S. App. LEXIS 11859, 47 Empl. Prac. Dec. (CCH) 38,255, 47 Fair Empl. Prac. Cas. (BNA) 1290, 1988 WL 90276 (8th Cir. 1988).

Opinion

LAY, Chief Judge.

Gerald A. Burger, age 57, brought suit against his former employer, McGilley Memorial Chapels, seeking compensation and liquidated damages for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 623, 626(d)(1), 630(b) and 631 (1982). (ADEA) He also brought a state pendent claim for slander. Before his discharge Burger had [1047]*1047worked as an embalmer for twenty-three and one-half years with the defendant. A jury returned a verdict against him on the ADEA claim but awarded $1.00 in nominal damages and $85,000 in punitive damages on the slander claim. The trial court, the Honorable Howard F. Sachs presiding, granted a judgment n.o.v. on the punitive award. Burger now appeals.

Burger’s suit stems from his discharge. Sometime during the year following his discharge in 1983, James McGilley, III, told a prospective employer of Burger’s that the latter had been fired for working for a competitor while on duty at McGilley’s funeral parlor. This statement formed the basis of Burger’s claim of slander.

On appeal, Burger asserts that: (1) despite the jury’s findings to the contrary, he had established a violation of age discrimination under the ADEA; (2) the district court should have granted a new trial because of an erroneous jury instruction on the ADEA claim; and (3) the district court erred in granting a judgment n.o.v. on the jury’s punitive damages award for slander. We affirm in part and reverse in part.

I. ADEA CLAIM

In the instant case, Burger asserts he has proved as a matter of law that the defendants’ reason for firing him was merely a pretext and, thereby, the district court erred in not granting judgment n.o.v. on that claim. In support of his claim, Burger asserts that the answers to questions 4, 5, and 6 of the Special Verdict,1 conclusively demonstrate the pretextual nature of the defendants’ reason for firing, despite the fact that the jury directly found in its answers to questions 2 and 3 that age was not a factor in firing Burger. This apparent inconsistency may be resolved by closer examination of the Special Verdict. Questions 4, 5, and 6 may be read as concerning the count of slander, not the ADEA claim. In question 6, specifically, the jury was asked about McGilley’s beliefs at the time he made the statement to Burger’s prospective employer. Thus, the question does not directly address Burger’s assertion of McGilley’s beliefs at the time Burger was fired; that question was answered directly by the jury’s finding that age was not a factor in terminating Burger. Assuming that he did prove that McGilleys’ asserted basis for termination was false, the jury verdict may be read as showing that Burger still failed to prove that there was a discriminatory intent for the termination. In other words, the verdict form must be read to mean that the jury found Burger did not sustain his ultimate burden of proving that age was the motivating factor for the discharge. The finding of discriminatory intent is for the trier of fact, in this case the jury. Cf. Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982). When a pretextual reason for discharge is found, the jury must still find that the pretext was to cover a discrimina[1048]*1048tory reason. Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559-60 (7th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987). In this case the jury found that age discrimination was not proven. We find no error here. See Barber v. American Airlines, Inc., 791 F.2d 658 (8th Cir.1986), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986).

Liquidated Damages

In conjunction with the ADEA claim, Burger also cites as error the fact that the district court did not give an instruction on liquidated damages. Liquidated damages are double damages, punitive in nature, which are available under 29 U.S.C. § 626(b) for “willful violations” of the ADEA. Under the two-tiered approach to liability for age discrimination, a violation is “willful” if “ ‘the employer ... knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’ ” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985) (quoting Air Line Pilots Ass’n, Int’l v. Trans World Airlines, Inc., 713 F.2d 940, 956 (2d Cir.1983)).

In view of the fact that the jury found that plaintiff failed to prove discriminatory intent under the ADEA, the issue on appeal as to the submission of liquidated damages is no longer relevant.2

II. SLANDER

After Burger’s discharge he sought employment with other funeral homes. The liability finding of the jury on the slander count as affirmed by the district court is not challenged on appeal. Burger’s slander suit is based on the alleged false statement of James McGilley III to Burger’s prospective employer, an owner of a competitive funeral parlor (Newcomer) that Burger had been working for others “while on our clock.”

Burger now appeals the district court’s grant of the defendants’ motion for judgment n.o.v., which denied him recovery of punitive damages for the slander. The district court did allow, however, the award of nominal damages for slander to remain intact. In delineating the reasons for denying punitive damages the district court concluded “that only speculation and conjecture could support the jury’s response to question 6 * * Memorandum and Order Denying Plaintiffs’ Motions and Granting Defendants’ Motion for Judgment Notwithstanding the Verdict at 2, Appendix at 289.3 The district court also based its decision on the fact that it had not instructed the jury that question six must be established by clear and convincing evidence.

It is well settled in this circuit that “[i]n passing upon a motion ... notwithstanding the verdict, the standard to be applied by the District Court and by this Court is the same.” Cleverly v. Western Elec. Co., 594 F.2d 638, 641 (8th Cir.1979). Under the standard:

[t]he evidence, together with all reasonable inferences to be drawn therefrom, must be considered in the light most favorable to the plaintiff, as the party prevailing with the jury. Cleverly v. Western Electric Co., 594 F.2d 638, 641 (8th Cir.1979) (Cleverly).

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856 F.2d 1046, 3 I.E.R. Cas. (BNA) 1303, 1988 U.S. App. LEXIS 11859, 47 Empl. Prac. Dec. (CCH) 38,255, 47 Fair Empl. Prac. Cas. (BNA) 1290, 1988 WL 90276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burger-v-mcgilley-memorial-chapels-inc-ca8-1988.