David P. Wheeler v. McKinley Enterprises D/B/A Braden's Wholesale Furniture D/B/A Fowler's Fine Furniture

937 F.2d 1158, 1991 U.S. App. LEXIS 14032, 56 Empl. Prac. Dec. (CCH) 40,836, 56 Fair Empl. Prac. Cas. (BNA) 504, 1991 WL 117407
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 5, 1991
Docket89-6442
StatusPublished
Cited by70 cases

This text of 937 F.2d 1158 (David P. Wheeler v. McKinley Enterprises D/B/A Braden's Wholesale Furniture D/B/A Fowler's Fine Furniture) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David P. Wheeler v. McKinley Enterprises D/B/A Braden's Wholesale Furniture D/B/A Fowler's Fine Furniture, 937 F.2d 1158, 1991 U.S. App. LEXIS 14032, 56 Empl. Prac. Dec. (CCH) 40,836, 56 Fair Empl. Prac. Cas. (BNA) 504, 1991 WL 117407 (6th Cir. 1991).

Opinions

DAVID A. NELSON, Circuit Judge.

This is an appeal from a judgment entered on a verdict for the plaintiff in an action brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. Defendant McKinley Enterprises, the owner of a retail furniture chain known as Braden’s, was found to have violated the Act in discharging the 62-year-old manager of one of its stores. The jury awarded the plaintiff $58,616.56 in back pay and $29,697.69 in front pay, but the court ordered a remittitur of $16,770.56 on the back pay portion of the verdict. Based on a finding by the jury that the violation was willful, the judgment also included penalty damages (characterized by statute as “liquidated damages”) in an amount equal to the back pay award, as adjusted.

Before the case was sent to the jury, Braden’s requested the court to instruct the jury that an employer’s reasonable, good faith belief that its conduct was not in violation of the Act is a defense to the finding of a willful violation. The trial judge denied the request. We conclude, for this and other reasons, that the instructions as given did not adequately inform the jury of all relevant considerations. Accordingly, and because we find that the verdict of the jury was against the manifest weight of the evidence, we shall remand the case for a new trial.

I

A

Plaintiff David P. Wheeler was hired by a company called Fowler’s Furniture in 1960. He was still working there in February of 1985, at which time Fowler’s was purchased by Braden’s.

Braden’s retained all but seven of Fowler’s employees. Mr. Wheeler, then almost 60 years of age, was one of those kept on the payroll. Of the seven employees whom the new owners failed to retain, six were either Fowler’s officers or members of its board of directors.

McKinley Braden, who owned Braden’s with his son Gary, suffered a heart attack in August of 1985. While he was recuperating — a period when Gary Braden was exercising a larger voice in the conduct of the business — the manager of Braden’s Gay Street Store in Knoxville, Tennessee, resigned. Because Mr. Wheeler had some prior experience in furniture store management, he was chosen to fill the vacancy.

Gary and McKinley Braden both testified that in January and February of 1986 they called Mr. Wheeler’s attention to cash shortages at his store. The shortages were said to total $885. In March of 1986, [1160]*1160they said, a bank deposit bag containing between $7,000 and $8,000 was stolen. Mr. Wheeler admitted that he had placed the deposit bag in a file cabinet in full view of a number of employees — and under the company’s established policy, he should have put it in the night depository at a nearby bank. A few weeks later, Ed Stewart, a shipping clerk at Mr. Wheeler’s store, was caught stealing $35,000 worth of merchandise. The Bradens blamed Mr. Wheeler for these losses.

In the spring of 1986 the Bradens allegedly became dissatisfied with the way Mr. Wheeler displayed and priced merchandise. Gary Braden testified that Wheeler priced furniture according to his own system, ignoring Braden’s pricing policy; that he separated pieces of furniture that should have been displayed together; and that he displayed damaged merchandise.

In July of 1986, Gary Braden testified, he summoned Mr. Wheeler to his office and fired him. The reasons for this action were summarized as follows in a memorandum prepared contemporaneously:

“7/16/86 8 am
Today Phil Wheeler was fired because of his neglect of specific orders on keeping the Gay Street store merchandised properly. Last Wed. I was in the Gay St. store and on every floor found lamps in the floor Ashley end table group 570 and Broyhill group 3220 and many others scattered on all floors. (Nothing in groups.) Sofa groups without chairs. Bedroom suites specifically American drew 076 Cherrygrove mirrors in floor. Beds not set up. A (mess).
Also problem with merchandise not tagged!”

Mr. Wheeler returned to Gary Braden’s office later that morning and asked for his job back. Braden relented, as evidenced by a second memorandum:

“7/16/86 10 am
Phil was dismissed however he pleaded with me to give him another chance. I told him today is it and all of the problems we have been facing regarding store maintenance need to never occur again. He said he would take care of everything immediately.
Also his behavior regarding the Ed Stewart situation was discussed. He said his handling of the store was wrong. He also said he did not have any excuses for leaving the store the night of the last theft with David Higdon and a key. At the time David at the time was a suspect from the 1st theft and Phil was told specifically not to trust David H. period. He agreed and I gave in again and gave him one more chance.”

McKinley Braden testified that he did not approve of his son’s giving Mr. Wheeler a second chance.

Although Mr. Wheeler’s performance improved for about a month, according to Gary Braden, it soon slipped back. Braden claimed that Wheeler kept too many samples in the showroom, with the result that no stock could be found when customers went to the warehouse to pick up their purchases. Mr. Wheeler also continued to follow his own pricing method, resulting in embarrassing price differentials with Bra-den’s other locations. Mr. Wheeler admitted that there was a problem in this regard.

In June of 1987 Gary Braden placed the following memorandum in Mr. Wheeler’s personnel file:

“6/1/87
Phil was told today to get his store in shape. I had visited store last Thurs. and floors were ragged.
Also Phil had double & triple & more times sampled the same items which was killing us in our inv. system. I told him to never do that again & to return items that were in road dept, to Braden’s that he had over sampled. He said he would.
Phil’s store is a mess.”

Mr. Wheeler’s performance still failed to improve, according to the Bradens, so they again decided to fire him. Gary Braden announced this decision to Mr. Wheeler on August 3, 1987. Braden’s personnel director, Tim Harris, was also present, according to both Harris and Braden. Both men testified that Mr. Wheeler was told he was being discharged because of continuing deficiencies in the way he displayed and [1161]*1161tagged merchandise, the way he priced furniture, and the careless way he treated inventory. Gary Braden wrote a memorandum to this effect and placed it in the personnel file. At trial, both Gary and McKinley Braden testified that they believed Mr. Wheeler’s poor performance constituted a valid reason for firing him.

Gary Braden directed his office manager to prepare a separation notice, as required by the Tennessee Department of Employment Security. The notice, unlike the memorandum, said that Mr. Wheeler was separated because of a “lack of work.” Mr. Braden testified that this was done so that Mr. Wheeler would qualify for unemployment benefits more quickly and have an easier time finding a new job.

Mr.

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Bluebook (online)
937 F.2d 1158, 1991 U.S. App. LEXIS 14032, 56 Empl. Prac. Dec. (CCH) 40,836, 56 Fair Empl. Prac. Cas. (BNA) 504, 1991 WL 117407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-p-wheeler-v-mckinley-enterprises-dba-bradens-wholesale-furniture-ca6-1991.