Unpublished Disposition, 872 F.2d 429 (9th Cir. 1986)

MEMORANDUM^** 

Lillie Mae Oakley appeals from the district court's judgment in favor of her former employer, American Building Maintenance Company ("ABM"). Oakley brought suit against ABM pursuant to ORS 659.030 and ORS 659.121, alleging that she was discharged from employment because of her age. On appeal, Oakley contends the district court clearly erred in determining that she was terminated for reasons unrelated to her age. We affirm.

BACKGROUND

ABM provides janitorial services for commercial buildings. Oakley was hired by ABM as a floor waxer in 1973, and served as supervisor in the Salem District of the Mid-Willamette Valley Branch from 1975 to 1986. She worked directly under Bill Halabi, the Branch Manager, and also reported to Romeo Connell, the recently appointed District Manager responsible for sales.

On July 1, 1986, the Willamette Branch lost two accounts representing seventy percent of the branch's revenues. Even after a reorganization reducing the number of employees from 257 to 107, the branch incurred a monthly income loss of approximately $30,000.

Halabi decided to combine Oakley's position (supervisor) with Connell's position (manager/salesman), thus creating the new position of operations manager. Although Halabi concluded that Oakley had the necessary supervisory experience for the new position, she lacked the equally necessary sales experience. Halabi chose Cecil Osborne, the supervisor of one of the lost accounts, for this new position rather than either Oakley or Connell. Halabi hoped to win back the account which Osborne had previously supervised, and with whom Osborne had maintained a favorable rapport. Thus, he felt it was important to keep this employee with ABM.

On July 7, 1986, Halabi met with and fired Oakley. Oakley testified that she asked Halabi for a vacant foreman position at the Equitable Building (an account she had supervised until that day), or alternatively, for a custodian's job at a bank. According to Oakley, Halabi refused, saying she was too old to do the job. She then asked if she could buy the company car she had been using, and Halabi said she could not.

Halabi testified that he intended to offer Oakley the position at the Equitable Building, but that he had no opportunity to do so because Oakley became upset and stormed out of his office. As noted by the trial judge, however, Halabi had obtained Oakley's termination check and had it with him at the time of their meeting. Further, Pike and Oakley both testified that Oakley remained in the office area for approximately one-half hour after her meeting with Halabi.¹ 

Both Oakley and Joyce Pike, Halabi's secretary and office manager, testified that when Oakley came out of Halabi's office, Oakley said to Pike that " [Halabi's] firing me because of my age." Although Halabi was present, he did not deny Oakley's charge. Pike also testified to a conversation she overheard between Connell and Halabi one month before Oakley's discharge, in which the two men said Oakley was too old and would have to be fired.

Dorothea Russell, another former employee of ABM, testified that she was twice offered Oakley's position long before the reorganization. Connell and Halabi told her that Oakley was getting too old and couldn't handle the job. She described Connell's plan in 1985 to get rid of Oakley by having Russell track her whereabouts at all times and report to Connell if she was ever absent. She related a meeting with Halabi later that year in which he offered her Oakley's job, but explained that he couldn't just fire Oakley because she would sue. Instead, he said they would just have to find the right time.

ABM claimed that Oakley's discharge was due to the reorganization and not to age discrimination. Halabi denied ever remarking about Oakley's age to either Oakley or Connell, and denied making an offer to Russell. Connell did not deny making an offer to Russell, but claimed he acted without Halabi's approval. Connell further claimed that Oakley would have been promoted to make room for Russell. Finally, Connell testified that Oakley had fired him from a janitorial position in 1976.

The district court found that the decision to create the operations manager position and to fill it with Osborne was motivated by legitimate business reasons. The court noted inconsistencies in Halabi's story that he intended to offer Oakley another position, but rejected claims that he discharged her because of her age. Conversely, the court was not persuaded by the testimony of Oakley and witnesses Pike and Russell. Thus, the court concluded that Oakley failed to carry her burden of proof based on the court's view of the evidence presented.

DISCUSSION

We have jurisdiction to decide this matter under 28 U.S.C. § 1291. A district court's findings of fact are reviewed under the clearly erroneous standard. Fed. R. Civ. P. 52(a); LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir. 1985). The district court's factual findings must stand unless, upon review, this court is left with the definite and firm conviction that a mistake has been committed. See United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985).

When findings are based on the trial court's determinations of witness credibility, Rule 52(a) demands even greater deference to the trial court's findings. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). If the finding is based on the trial judge's decision to credit the testimony of one of several witnesses, each of whom presented a coherent and facially plausible story not contradicted by extrinsic evidence, that finding can virtually never be clear error unless it is internally inconsistent. Id. Palila v. Hawaii Dept. of Land & Natural Resources, 852 F.2d 1106, 1110 (9th Cir. 1988).

In the present case, the district court's findings are based primarily on determinations of witness credibility. First, Halabi presented an essentially coherent and facially plausible story. The court's conclusion that Oakley had not been the victim of discrimination depended in large part on the undisputed evidence that ABM was forced to reorganize after it lost two major accounts. Further, Halabi was knowledgeable about Oregon's anti-discrimination laws, implying that he would be unlikely to have made the disparaging remarks with which he is charged. While this is not an inescapable conclusion, it is neither implausible nor incoherent. While Halabi's claimed intent to offer Oakley another position does not withstand scrutiny, his intent or lack of intent to transfer Oakley bears only indirectly on the decision to discharge her. See, e.g., Simpson v. Midland-Ross Corp., 823 F.2d 937, 942 n. 6 (6th Cir. 1987) (when employer reduces its work force for economic reasons, it incurs no duty to transfer the employee to another position within the company). The court committed no error by relying on undisputed facts in the record or by crediting Halabi's version of other facts.

We next look to whether Halabi's version of events was contradicted by extrinsic evidence. Again, the only extrinsic evidence which was contradictory relates to the secondary issue of Halabi's intent to transfer Oakley. Halabi met Oakley with a final paycheck in hand, and he made no offer of transfer despite the fact that even after leaving the building, Oakley was only a phone call away. However, this issue is only tangential, and there is no extrinsic evidence to contradict the key facts of ABM's reorganization, Halabi's familiarity with anti-discrimination laws, or ABM's continued employment of people of advanced age.

Finally, the findings are not internally inconsistent. The court found that Oakley's discharge was not motivated by age; that her discharge was occasioned by the reorganization and other legitimate business reasons; and that the testimony of Oakley and of her witnesses Pike and Russell should be viewed with caution as all three had been discharged by ABM. These findings are consistent with the court's ultimate conclusion that Oakley had failed to carry her burden of proof.

Oakley charges that the court failed to come to grips with Pike's and Russell's testimony, and the "irreconcilable conflicts" between their testimony and Halabi's testimony. However, these conflicts were squarely addressed by the court's credibility determinations and its findings.

Oakley also submits that Halabi's failure to deny in front of Miss Pike that he fired Oakley because of her age was a tacit admission. She suggests that this fact "is adequate in and of itself to prove that age was a motivating factor" in Halabi's decision, especially since the admission was not refuted by the defense. However, we first point out that while ABM does not dispute the fact that Halabi was silent, ABM does dispute the meaning of the silence. Further, Oakley offers no authority for her contention that Halabi's silence mandates a particular conclusion by the fact finder.

A party's failure to respond to a statement made by another, under circumstances in which a denial would be expected, is traditionally admissible in court as a tacit admission. 4 Wigmore, Evidence Sec. 1071 (Chadbourn rev. 1972). The essential inquiry is whether a reasonable person would have denied the third party's statement under the circumstances. However, the admissibility of the statement and Halabi's silence is not even at issue here; such testimony was received by the court. Rather, Oakley can only be challenging the inference that was or was not drawn from this testimony. This factual question was implicitly resolved by the district court, in its role as fact finder, when it determined that " [t]here is no credible evidence that Halabi was motivated by age in his decision to discharge Oakley." Oakley has no basis in law for her contention that the court, after properly weighing the evidence, was required to draw the opposite conclusion. See, e.g., Doyle v. Ohio, 426 U.S. 610 (1976) (silence is ambiguous and may be motivated by many factors other than guilt or lack of an exculpatory story).

Finally, Oakley maintains that ABM improperly asserts that her burden is to prove that age was the determining factor in the decision to discharge her. She contends that her burden is only to prove that age was a motivating factor. There can be no claim of error here, as the district court correctly applied Oregon law in requiring that Oakley prove that age was "a motivating or determining factor in her treatment." See Ogden v. Bureau of Labor, 299 Or. 98, 699 P.2d 189 (1985); Callan v. Confederation of Oregon School Adm'rs, 79 Or.App. 73, 717 P.2d 1252 (1986).

AFFIRMED.