Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1989)

MEMORANDUM^* 

Sears, Roebuck & Co. (Sears) appeals a $180,000 jury verdict in favor of Barbara Wood on her claim of age discrimination against Sears pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634 (1985) (ADEA).¹  Sears contends that the jury's findings of age discrimination and willfulness are not supported by substantial evidence. Sears also contends that the district court improperly (1) excluded statistical evidence regarding the ages of Wood's co-workers; (2) ordered Wood's reinstatement to employment by Sears; and (3) denied Sears' motion to change venue. For the reasons discussed below, we affirm in part, reverse in part, and remand.

BACKGROUND

Barbara Wood began working for Sears in 1975, at the age of 45. Since 1976, she worked at the Sea-Tac Mall store in Federal Way, Washington. Wood worked for Sears for a total of eight and one-half years until she was fired in 1984 at the age of 54. Richard Stephenson has been the store manager of Sears' Sea-Tac Mall store since 1981.

During her employment with Sears, Wood worked first in the Major Appliances Department from 1975 to 1982. In 1982, Wood voluntarily transferred to the Furniture Department because she and two other employees without seniority had their hours in Major Appliances reduced from 40 to 20 hours per week. Wood worked in Furniture from 1982 to 1983. Wood testified that while she was working in Furniture, Stephenson twice recommended to Sears that she be terminated, but that Sears either rejected or ignored his recommendations and Wood remained employed.²  In both Major Appliances and Furniture, Wood received deficiency memoranda regarding occasional errors she made when filling out sales order forms and regarding her periodic failure to meet sales quotas.

Wood's final sales position was in the Automotive Accessories Department. Wood testified that she transferred to Automotive in 1983 because Stephenson had given her the option of accepting the transfer or taking an early retirement.³  In Automotive, Wood worked with five other employees, all male and all under the age of 40. Wood testified that she was unable to keep up with the younger salesmen and that she was physically unable to perform the work. She further testified that she told Stephenson that, physically, the job was killing her and that she had to get out of Automotive. Wood was unable to meet her sales quota in Automotive. Stephenson again recommended that Wood be terminated, and this time Sears did terminate Wood in April 1984, at the age of 54.

Wood then filed charges with the Equal Employment Opportunity Commission and the Washington State Human Rights Commission alleging sex and age discrimination. After exhausting her administrative remedies, Wood brought this action alleging that Sears had terminated her employment based on her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1981), and based on her age in violation of the ADEA.⁴ 

Following service of the complaint, Sears moved for change of venue. The district court denied Sears' motion. Sears later moved for summary judgment. The district court again denied Sears' motion. Wood's age discrimination claim was tried to a jury; her sex discrimination claim was tried to the court. At the conclusion of Wood's case and again at the conclusion of all testimony, Sears moved for a directed verdict. The district court denied both motions.

The jury returned a verdict against Sears for $180,000: $90,000 in damages for age discrimination and another $90,000 in liquidated damages because the violation was willful. The district court also ordered Sears to reinstate Wood. Finally, the district court found that Wood had not met her burden of proving sex discrimination and therefore dismissed her Title VII claim. Sears' motion for judgment notwithstanding the verdict or, alternatively, a new trial was denied.

Sears now timely appeals the $180,000 jury verdict and the district court's order that Wood be reinstated to her employment with Sears.

DISCUSSION

I. The Jury's Findings of Age Discrimination and Willfulness

"The standard for reviewing a jury verdict is whether it is supported by substantial evidence.... Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Transgo, Inc. v. AJAC Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir. 1985) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) (citations omitted), cert. denied, 474 U.S. 1059 (1986).

Sears contends that the jury's verdict in this case was not supported by substantial evidence.

In an age discrimination action, the plaintiff employee must first establish a prima facie case of age discrimination.⁵  Once the employee makes out a prima facie case, the burden of production shifts to the employer "to articulate a legitimate nondiscriminatory reason for the discharge." Cassino v. Reichhold Chemicals, 817 F.2d 1338, 1343 (9th Cir. 1987), cert. denied, 108 S. Ct. 785 (1988).

If the employer produces sufficient evidence to rebut the employee's prima facie showing, the employee may then attempt to show that the proffered reasons are pretextual. Id. The employee may do so "directly by persuading the [trier of fact] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S 248, 256 (1981). In some circumstances, even if no new evidence is introduced to show pretext, the evidence establishing a prima facie case of discrimination can support a jury verdict for the plaintiff if the defendant's rebuttal evidence is discredited by the jury. Douglas v. Anderson, 656 F.2d 528, 535 n. 7 (9th Cir. 1981).

Sears initially contends that Wood failed to make out a prima facie case of age discrimination. Because this case was fully tried on the merits, whether Wood established a prima facie case is no longer the relevant inquiry. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1492 (9th Cir. 1986). On appeal from a verdict in favor of the employee, the relevant inquiry is whether there is substantial evidence in the record as a whole to support the jury's finding of discrimination. See Aikens, 460 U.S. at 714 (where case fully tried, only issue to be decided on appeal is "the ultimate question of discrimination vel non").

Turning to the critical question whether there is substantial evidence in the record as a whole to support the jury's verdict in this case, we must decide whether a reasonable jury could find that Sears' stated reasons for firing Wood were a pretext for discrimination and that age was the true reason for her discharge. Sears contends that Wood failed to show that Sears' evidence of Wood's poor performance was not the real reason for her termination. Sears argues that the only evidence Wood presented to counter Sears' contention that Wood was fired due to unsatisfactory job performance was Wood's self-serving testimony in which she subjectively evaluated her performance, stating that she felt she was doing a good job and that she was transferred from Furniture to Automotive because Stephenson, her manager, believed that such a transfer was the best way to get rid of her.

Wood responds that other evidence presented to the jury--evidence beyond her own evaluation of her performance--showed that age was the likely reason for her discharge. Wood argues that Sears' earlier refusals to approve Stephenson's recommendations that she be fired reasonably leads to the inference that Sears' upper management did not believe that occasional errors in paperwork and sales levels below the established quotas warranted an employee's termination. Wood states that it was not until she was transferred to Automotive, after Stephenson gave her the choice of working in that department or taking an early retirement, that Stephenson succeeded in firing her. Wood argues that her work in Automotive--where she was at least 20 years older than any other employee, where she had no experience, and where the work was too physically demanding--cannot be used to measure her performance because her transfer to Automotive was due to discrimination. The district court, summarizing Wood's position, stated, "You put me in automotive in a job that I'm physically, because of my age and sex, unable to do.... You put me in a job I didn't apply for, I wasn't experienced at, knew nothing about, and was physically unable to do...."

The evidence presented at trial showed that Wood had some performance problems during her eight and one-half years at Sears. But once Wood made out her prima facie case and Sears presented its rebuttal evidence, the critical issue in the case was whether Wood's job performance was the real reason for her discharge and not just a pretext for age discrimination. See Douglas, 656 F.2d at 533 n. 5 (relevant issue is not whether employer was correct in determining that employee's job performance was unsatisfactory, but rather whether that was the real reason for the discharge and not a pretext for discrimination).⁶ 

Much of the testimony at trial was contradictory and " [i]t was [therefore] properly left to the jury to decide 'which party's explanation of [the employer's] motivation it believe [d].' " Gilchrist, 803 F.2d at 1492-93 (quoting Aikens, 460 U.S. at 716).⁷  Wood's opinion that she was doing a good job and that she was transferred to Automotive because Stephenson thought that would be the best way to get rid of her is sufficiently supported by circumstantial evidence in the record to have persuaded a reasonable jury that Sears' proffered reason for her discharge--poor performance--was "unworthy of credence," Cassino, 817 F.2d at 1343, and that her termination was in fact a result of age discrimination.⁸ 

We therefore hold that there was substantial evidence to support the jury's finding of age discrimination.⁹ 

The jury found that Sears' violation of the ADEA was willful and therefore awarded Wood $90,000 in liquidated damages. Because we have found that the jury's finding of age discrimination was supported by substantial evidence, we must now decide whether the jury's finding that the discrimination was willful also was supported by substantial evidence. We conclude it was not and reverse the award of liquidated damages.

The ADEA provides that "liquidated damages shall be payable only in cases of willful violation of the [the Act]." 29 U.S.C. § 626(b). A violation of the Act is willful only if the employer knew or showed reckless disregard for whether the ADEA prohibited its conduct. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985).¹⁰ 

We have adopted Thurston and have applied its standard to ADEA actions. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1496 (9th Cir. 1986). The record here shows that the district court properly instructed the jury under the Thurston standard. Cf. id. (reversing award of liquidated damages when trial court failed to instruct jury with Thurston standard). Therefore our only inquiry is whether there was sufficient evidence to support the jury's award of liquidated damages.

Our review of the evidence shows only that a reasonable jury could have found that Sears violated the Act and therefore conpensatory damages were proper. Wood's evidence of Sears' wrongdoing was focused on her placement in the automotive department where she did not perform well because of her age. Although Sears' action in that regard may have been intentional and purposeful in that it knew of the transfer, there is nothing in the record to support Woods' self-serving allegations of bad faith or bad motive that Sears transferred her with the knowledge and intention that she would fail at the assignment.

Wood proved nothing more than a violation of the Act. We cannot accept her argument that this same evidence also supports the jury's finding that the violation was willful. See id. at 1494 ("interpretation of 'willful' in Thurston was intended to preserve the punitive nature of liquidated damages, and to assure that Congress's 'two-tiered liability scheme' was not eviscerated") (citations omitted). Accordingly, we reverse the imposition of liquidated damages.

II. The District Court's Exclusion of Evidence Regarding the Ages of Wood's Co-workers

A district court's decision regarding the relevance of evidence is reviewed for an abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 830, 847 (1981).

Sears contends that the district court improperly excluded evidence regarding the ages of Wood's co-workers.¹⁰  Sears attempts to support its contention by citing several cases that hold that, in appropriate circumstances, disparate impact analysis may be used in disparate treatment cases. See, e.g., Watson v. Fort Worth Bank and Trust, 108 S. Ct. 2777, 2787 (1988); Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1362-63 (9th Cir. 1985). These cases demonstrate that statistical evidence can be relevant and useful in disparate treatment cases. They do not, however, support Sears' contention that the district court in this case was required to allow Sears to present statistical evidence to refute Wood's claim of age discrimination. See Fed.R.Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").

Here, Wood's allegations solely involved Sears' treatment of her as an individual; she did not raise the issue of Sears' treatment of other older employees. Evidence regarding the ages of Sears' other employees was of marginal relevance to the case. The district court, in exercising its broad discretion, could properly conclude that the introduction of such evidence might confuse the issues, mislead the jury, or cause undue delay. We therefore find that the district court did not abuse its discretion by excluding Sears' statistical evidence.

III. The District Court's Order to Reinstate Wood

Sears contends that the district court abused its discretion by ordering that Wood be reinstated.

The ADEA provides that " [i]n any action brought to enforce [the Act] the Court shall have jurisdiction to grant such legal or equitable relief as may be appropriate ... including without limitation judgments compelling employment, reinstatement or promotion...." 20 U.S.C. § 626(b).

In a discriminatory discharge case, the decision whether to order reinstatement is within the discretion of the district court. Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1346 (9th Cir. 1987), cert. denied, 108 S. Ct. 785 (1988); Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1319 (9th Cir.), cert. denied, 459 U.S. 859 (1982). Although reinstatement is the preferred remedy in an ADEA case, it is not always feasible where, for example, the employment relationship is hostile or no position is available due to a permissible reduction in force. Cassino, 817 F.2d at 1346. In such circumstances, an award of future damages or "front pay" in lieu of reinstatement may be made to make the plaintiff whole. Id. By virtue of its position in conducting the trial, the district court is "peculiarly well-situated to observe the demeanor of plaintiffs and defendants in making [the] determination [whether to order reinstatement or front pay]." Cancellier, 672 F.2d at 1320.

In the present case, the district court did not specify the department to which Wood should be reinstated. Nor did it examine whether hostility toward Wood or other circumstances would make reinstatement to one of her first two sales positions, or even reinstatement to Sears' other departments, impracticable. We therefore remand the case to the district court with instructions to decide (1) whether Wood's reinstatement is feasible; (2) if so, to which department Wood should be reinstated; and (3) if reinstatement is not feasible, whether and how much front pay should be awarded.

IV. The District Court's Denial of Sears' Motion to Change Venue

Sears contends that the district court improperly denied its motion to change venue from the Federal District Court in Tacoma, Pierce County to the Federal District Court in Seattle, King County, where the Sea-Tac Mall store is located. Sears argues that, pursuant to the special venue provision in Title VII, 42 U.S.C. § 2000e-5(f) (3), the action should have been tried in Seattle, King County where the alleged sex discrimination occurred.¹¹ 

However, Sears was found to have violated the ADEA, which has no independent venue provisions. The ADEA is governed by the general venue provisions of 28 U.S.C. § 1391(c),¹²  on which the district court relied in making the venue determination. The district court found that Sears did not violate Title VII; therefore, any failure by the district court to adhere to Title VII's special venue requirements could not have prejudiced Sears with respect to Wood's ADEA claim.

CONCLUSION

Because the jury's finding of age discrimination is supported by substantial evidence, we affirm that portion of the verdict. We reverse the jury's award of liquidated damages made upon a finding that the violation was willful. We remand the case to the district court for a determination of whether reinstatement is appropriate and, if so, in what department. If the district court finds that reinstatement is not practicable, it should decide how much front pay, if any, Wood should receive.

AFFIRMED in part, REVERSED in part, and REMANDED.

NOONAN, Circuit Judge, concurring in part and dissenting in part:

I concur with the court in finding insufficient evidence to support willfulness. There was also in my opinion insufficient evidence of age discrimination, and judgment should have been entered for the defendant.