Fourth Circuit age discrimination decision

The Fourth Circuit issued a ruling upholding a jury verdict for the plaintiff in an age discrimination (ADEA) case, finding that the ageist remarks made about the plaintiff at the time of his termination were direct evidence that the plaintiff’s age motivated the defendant to fire him.  The court also recognized that shifting explanations for terminating the employee can constitute strong evidence of pretext.  Finally, the court held, in an issue of first impression for this circuit, that when the jury has found the violation of the ADEA to be willful, that liquidated damages must be awarded.

Loveless v. John’s Ford, Inc., No. 05-1868 (4th Cir. May 9, 2007).

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/051868.U.pdf

Some excerpts follow:

PER CURIAM:

Defendant John’s Ford, Incorporated, appeals from the district court’s July 2005 denial of its motion for judgment as a matter of law, or in the alternative a new trial, after a jury decided that it had willfully violated the Age Discrimination in Employment Act (“ADEA”) and returned a verdict in favor of Alton Loveless. See Loveless v. John’s Ford, Inc., No. 04-1209 (E.D. Va. July 11, 2005) (the “First Opinion”). Plaintiff Loveless has cross-appealed from the court’s September 23, 2005 denial of his motion for front pay and his separate motion for liquidated damages (the “Second Opinion”). As explained below, we affirm the rulings in the First Opinion, and affirm the Second Opinion in part and reverse in part. More specifically, we affirm the Second Opinion’s denial of Loveless’s request for front pay and reverse its denial of his motion for liquidated damages.

Here, there was ample direct evidence that Loveless’s age was a motivating factor in Cohen’s decision, made on behalf of John’s Ford, to discharge Loveless. Loveless testified that, on October 14, 2003, Cohen told him he was being “retired.” When Loveless asked why, Cohen told him that he was “replacing all his department heads. That he need[ed] younger, more aggressive Managers, people that he [could] groom to the way that he does business.” J.A. 592. During this conversation, Cohen referred to Wes Brown, another older John’s Ford employee, as “an F’n dinosaur” and told Loveless that Brown “is next” and “should have been gone a long time ago.” Id. at 593. Vicki Surface, an assistant service manager, heard Cohen refer to another older employee, Wilber Laznic, as a “dinosaur.”  Id. at 615.

John’s Ford’s contention that there was an insufficient nexus between the foregoing comments and Loveless’s termination is also without merit. Indeed, one of Cohen’s derogatory comments was made when Loveless was terminated, and in direct response to Loveless’s question of “why me?” In order for such remarks to be indicative of discrimination, they must not be isolated, and must be “related to the employment decision in question.” Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999) (internal quotation marks omitted); see also O’Connor v. Consol. Coin Caterers, Corp., 56 F.3d 542, 549-50 (4th Cir. 1995) (finding insufficient nexus between age-related statements and adverse employment action where plaintiff could not recall context of first statement, another statement was made in connection with ability to play golf, and third statement was no more than innocuous commentary on fact that all people grow older); . . . In these circumstances, the evidence before the jury was sufficient to demonstrate a nexus between Cohen’s comments and Loveless’s discharge.

. . . Loveless presented sufficient evidence to warrant the jury’s rejection of John’s Ford’s explanation for his termination as pretext. First, contradictions between an employer’s explanation for an adverse employment action at trial and its statements to the employee at the time of discharge constitute strong evidence of pretext. See Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 928 F.2d 118, 122-23 (4th Cir. 1991) (finding pretext established where employer’s explanation for termination at trial contradicted explanation at time of discharge). Here, Cohen’s explanation at trial for Loveless’s termination (poor work performance) contradicted his explanation to Loveless when he was fired (that Cohen wanted younger, more aggressive managers he could groom to his management style).  Second, despite Cohen’s repeated references to poor attendance, there were no attendance records showing that Loveless had missed work, and there were no records documenting any customer complaints about him. Finally, Cohen was unable to identify any occasion where he gave Loveless notice — in person or in writing — of any dissatisfaction with his job performance. Loveless thus provided sufficient evidence of pretext to support the jury verdict, and the denial of John’s Ford’s motion for judgment as a matter of law must be sustained.

Finally, Loveless contends that the court was obliged, under the ADEA, to make an award of liquidated damages to him on the basis of the jury’s finding of willfulness. In its Second Opinion, the court declined to do so, concluding that such an award would bestow a windfall on Loveless, in that the jury had already awarded him $250,000 in back wages. As explained below, we agree with Loveless that, in light of the applicable provisions of the ADEA, plus the Supreme Court’s decision in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), and the pertinent decisions of our sister circuits, he was entitled to an award of liquidated damages once the jury found that John’s Ford had willfully violated the ADEA. . . . Several of our sister circuits have explicitly held that a liquidated damages award to a prevailing ADEA plaintiff is mandatory upon a finding of willfulness. . . . The controlling authorities support application of such a rule, however, and the foregoing decisions are consistent with our reading of the applicable statutory provision. We thus see a liquidated damages award as mandatory in this case, where Loveless is a prevailing plaintiff relying on a jury finding of a willful violation of the ADEA by John’s Ford.

Bernabei & Wachtel, PLLC

Alan R. Kabat, Esquire