Filed: Jul. 09, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 91-8271 FLAVIO O. RAMIREZ, Plaintiff-Appellee, VERSUS ALLRIGHT PARKING EL PASO, INC., Defendant-Appellant. Appeal from the United States District Court For the Western District of Texas (July 7, 1992) Before GOLDBERG, JONES, and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge: Allright Parking El Paso (Allright) appeals a $234,343.55 judgment entered after a jury verdict finding it liable to Flavio Ramirez (Ramirez) for age discrimination un
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 91-8271 FLAVIO O. RAMIREZ, Plaintiff-Appellee, VERSUS ALLRIGHT PARKING EL PASO, INC., Defendant-Appellant. Appeal from the United States District Court For the Western District of Texas (July 7, 1992) Before GOLDBERG, JONES, and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge: Allright Parking El Paso (Allright) appeals a $234,343.55 judgment entered after a jury verdict finding it liable to Flavio Ramirez (Ramirez) for age discrimination und..
More
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-8271
FLAVIO O. RAMIREZ,
Plaintiff-Appellee,
VERSUS
ALLRIGHT PARKING EL PASO, INC.,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(July 7, 1992)
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Allright Parking El Paso (Allright) appeals a $234,343.55
judgment entered after a jury verdict finding it liable to Flavio
Ramirez (Ramirez) for age discrimination under the Age
Discrimination in Employment Act (ADEA) and for intentional
infliction of emotional distress under Texas law. Allright
challenges the denial of its motions for a directed verdict,
judgment notwithstanding the verdict (JNOV), and new trial based on
the sufficiency of the evidence. We affirm the jury's verdict
regarding the ADEA claim, but finding the evidence insufficient
reverse their verdict regarding the intentional infliction of
emotional distress claim.
I. FACTS
Because Allright is challenging the sufficiency of the
evidence we will recite the facts in the light most favorable to
Ramirez. Allright employed Ramirez from 1961 until 1989. Over
that time, he received several promotions, which culminated in his
promotion to general manager of Allright's El Paso operations in
1986. As general manager, Ramirez reported to Aaron Hardgrave
(Hardgrave), who was president of Allright's El Paso operations.
In 1988, Allright promoted Kevin Matocha (Matocha), who was 22
years of age, to Regional Vice President. Shortly after Matocha's
promotion, Hardgrave retired, and Allright replaced him with George
Corse (Corse), who was 27 years of age. Ramirez remained the
general manager and reported to Corse. After Corse took over, he
called Ramirez into his office and told him that he had two more
years with the company and then they were going to retire him. In
January of 1989, Allright fired Ramirez and hired Scott Tinley, who
was 22 years of age, as his replacement. At the time Allright
fired Ramirez, he had no warnings or reprimands in his personnel
file, and just two months prior had received a pay raise. After
his firing, Ramirez and his son requested a meeting with Matocha,
at which Ramirez's son asked Matocha if he was aware of the ADEA in
order to let him know that there were other options available if
the matter could not be settled. As a result of the meeting,
2
Allright agreed that it would hire Ramirez back in a supervisory
capacity and at his "old salary."1
On January 23, 1989, Allright reinstated Ramirez as a
supervisor, but with a loss of seniority and at salary of $538
bimonthly rather than $585 as was agreed too by the parties.
Shortly after he was reinstated, Allright demoted Ramirez to duty
as a parking lot attendant, where it required him to work longer
hours than the other attendants and work more weekends than the
other supervisors. In September 1989, Tinley approached Ramirez
and told him that he was switching him to an hourly wage and
requiring him to punch a time clock. Ramirez refused to accept the
hourly wage or punching a time clock, and Tinley fired him.
II. PROCEDURAL HISTORY
In October 1990, Ramirez sued Allright in state court alleging
that it violated the ADEA and various state tort laws. Allright
removed the case to the United States District Court for the
Western District Court of Texas. At trial, Allright moved for and
the district court granted a directed verdict on all the pendant
state claims, however, later it partially withdrew its ruling and
permitted Ramirez to proceed with his ADEA claim and his
intentional infliction of emotional distress claim. The jury
found for Ramirez on both claims, awarding him $23,760 in back pay
and $23,760 in liquidated damages on his ADEA claim, and $300,000
in mental anguish damages on his emotional distress claim. After
1
Ramirez's "old salary" was the bimonthly salary of $585
that he was receiving prior to his November, 1988 pay raise.
3
the jury's verdict, the district court entered judgment for
$347,520. Allright filed a motion for JNOV and, in the
alternative, a motion for new trial and motion for remittitur. The
district court denied Allright's motion for JNOV and motion for new
trial conditioned upon Ramirez filing a remittitur for $200,000.
Additionally, the district court awarded Ramirez front pay of
$62,362, attorneys' fees of $20,387, and costs of $4,074. Ramirez
filed a remittitur for $200,000, and on May 17, 1991, the district
court vacated its prior judgment and entered judgment for Ramirez
for $234,343.55. Allright appeals that judgment.
III. DISCUSSION
Allright contends that its motions for directed verdict, JNOV,
and new trial were improperly denied because there was insufficient
evidence for the jury to find that it intentionally inflicted
emotional distress upon Ramirez or that it discriminated against
him based on his age in violation of the ADEA. When reviewing
motions for directed verdict and JNOV:
[T]he Court should consider all of the evidence-not just
that evidence which supports the non-mover's case-but in
the light and with all reasonable inferences most
favorably to the party opposed to the motion. If the
facts and inferences point so strongly and overwhelmingly
in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict,
granting of the motion is proper. On the other hand, if
there is substantial evidence opposed to the motions,
that is, evidence of such quality and weight that
reasonable and fair minded men in the exercise of
impartial judgment might reach different conclusions, the
motions should be denied, and the case submitted to the
jury.
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc).
A motion for new trial is reviewed under a different standard, and
4
will not be overturned unless there is a clear showing of an abuse
of discretion. Reeves v. General Foods Corp., 682 F.2d 515, 519
(5th Cir. 1982).
A. Intentional Infliction of Emotional Distress Claim
Under Texas law, the tort of intentional infliction of
emotional distress consists of four elements: (1) the defendant
acted intentionally or recklessly; (2) the defendant's conduct was
extreme and outrageous; (3) the defendant's action caused the
plaintiff emotional distress; and (4) the emotional distress
suffered by the plaintiff was severe. Dean v. Ford Motor Credit
Co., 885 F.2d 300, 306 (5th Cir. 1989) (citing Tidelands Auto Club
v. Walters,
699 S.W.2d 939, 942 (Tex. App.-Beaumont, 1985, writ
ref'd n.r.e.).
Allright contends that there is insufficient evidence to
support the jury's finding that its actions toward Ramirez were
extreme and outrageous, which is an essential element of Ramirez's
claim. This court recently defined what is extreme and outrageous
conduct in Dean v Ford Motor Credit Co., 885 F.2d 300 (5th Cir.
1989), where it stated:
liability for [outrageous] conduct has been found only
where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community . . . .
Generally, the case is one in which a recitation of the
facts to an average member of the community would lead
him to exclaim, "Outrageous."
Dean (citing Restatement (Second) Torts Section 46, Comment d.) at
306.
5
To support his position that Allright's actions rise to that
level, Ramirez cites to the recent decision of this court in Wilson
v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991). In Wilson, an
elderly employee sued his employer for violation of the ADEA and
for intentional infliction of emotional distress under Texas law.
The evidence produced by the employee at trial showed that: (1) his
employer assigned his duties to a younger person; (2) the company
president refused to speak to him in the hallways so as to harass
him; (3) the company's long range plans expressed a desire to move
younger people into sales and management positions; (4) the
company's president wanted to replace him with a younger person;
(5) other mangers would not work with him; (6) he did not receive
his work assignments directly from the company president; (7) he
was not offered a fully guaranteed salary to transfer; (8) his
employer demoted him to the position of entry level warehouse
supervisor; (9) his supervisors referred to him as old; (10) his
immediate supervisor prepared a sign stating "Wilson is old," and
"Wilson is a goldbrick"; and (11) the company filed a counterclaim
against him.
The court found that all of the employer's above listed
actions were within the realm of an ordinary employment dispute,
and, in the context of the employment milieu, were not so extreme
and outrageous to be properly addressed outside of the plaintiff's
ADEA claim. Wilson at 1145. The court stated that "what takes
this case out of the realm of an ordinary employment dispute is the
degrading and humiliating way that [the plaintiff] . . . was
6
stripped of his duties and demoted from an executive manager to an
entry level warehouse supervisor with menial and demeaning duties."
Id. The evidence in Wilson showed that the employer transferred
the plaintiff, who was the former vice-president and assistant to
the president, to the warehouse where his primary duties were
housekeeping chores, mainly sweeping the warehouse and cleaning up
after the other employees in the warehouse cafeteria after lunch.2
The court simply held that the employer's intentional and
systematic actions to humiliate the plaintiff, who had a college
education and 30 years of executive experience, by requiring him to
do menial, janitorial duties was extreme and outrageous. Wilson at
1145.
In the present case, in contrast to the facts in Wilson, there
is nothing elevating Allright's actions above those involved in an
"ordinary employment dispute," and into the realm of extreme and
outrageous, which is what Texas law requires to state a claim for
intentional infliction of emotional distress. In support of his
claim that Allright's actions were extreme and outrageous, Ramirez
points to the following facts: (1) Allright replaced Ramirez with
Tinley, who was 22 years of age; (2) Matocha advised Ramirez's son
that Ramirez was a good worker, but that Matocha needed younger,
more energetic employees; (3) Ramirez lost his seniority; (4)
Matocha agreed to rehire Ramirez as a supervisor at his same
salary, but in spite of that agreement, Matocha placed Ramirez as
2
Wilson spent 75% of his time performing these janitorial
type duties.
7
a parking lot attendant and at a reduced salary; (6) Ramirez was
required to take orders from employees that he had previously
supervised; (7) Ramirez was required to work more hours than the
other attendants and more weekends than the other supervisors; (8)
Tinley told Ramirez that he would be put on an hourly wage and
required to punch a time clock; and (9) Tinley fired Ramirez after
he refused to punch a time clock, and after he refused to accept an
hourly position.
Those actions by Allright, while perhaps illegal and
discriminatory, are insufficient to support a finding of extreme
and outrageous conduct under Texas law because Allright did not
subject Ramirez to the intentional and systematic degradation and
humiliation that was present in Wilson. The evidence in the
present case shows that although Allright demoted Ramirez to a
parking lot attendant, he continued to receive a supervisor's
salary and continued to wear his uniform designating him as a
supervisor. Also significant is that the duties (parking cars)
Allright required of Ramirez were basic duties that all parking lot
attendants were required to perform and were duties typical of the
primary business of Allright, whereas, in Wilson the janitorial
duties that the employer required of the plaintiff were not basic
duties that all entry level supervisors were required to perform
and were not typical of the primary business of the employer. In
addition, the duties that Allright required Ramirez to do as an
attendant were not menial or demeaning, but were duties that
Allright required its other supervisors to do on occasion, and,
8
indeed, were duties that Allright had often called upon Ramirez to
do himself before his demotion. As noted by this court in Wilson,
"except in the most unusual cases . . . [an employer's creation
of unpleasant and onerous work conditions] is not the sort of
conduct, as deplorable as it may sometimes be, that constitutes
extreme and outrageous conduct." Wilson at 1143.
In a final argument, Ramirez contends that this court's
holding in Dean supports his claim. In Dean, the plaintiff's
employer subjected the plaintiff to a litany of offensive and
discriminatory acts that this court held were insufficient to
support a finding of extreme and outrageous conduct.3 The act of
the employer that this court held took the case from the realm of
an ordinary employment dispute and into the realm of outrageous
conduct was that the supervisor of the employee intentionally
placed checks in the employee's purse to make it appear that she
was a thief, or to put her in fear of being charged criminally for
theft. Dean, at 307. In the present case, Allright is not guilty
3
In Dean, this court found that the following conduct was
insufficient to support a finding of extreme and outrageous
conduct, which is necessary to support a claim for intentional
infliction of emotional distress: (1) the employer told the
plaintiff that "women don't usually go in that department," when
she expressed interest in transferring to a higher paying position
in the collection department; (2) the employer denied the plaintiff
a transfer to the collection department, and instead selected a
less qualified man; (3) the employer's attitude toward the
plaintiff changed after she complained about discriminatory
treatment; (4) the employer begin to transfer the plaintiff from
desk to desk; (5) a co-worker testified that she believed the
employer "was trying to set ... [the plaintiff] up;" (6) the
employer required the plaintiff to do more work than the other
clerks and subjected her to unfair harassment; and (7) the employer
used special annual reviews (that only the plaintiff received) to
downgrade her performance. Dean at 303-04.
9
of that type of reprehensible conduct, which the court classified
as passing the "bounds of conduct that will be tolerated by a
civilized society . . . . " Dean at 307. Simply put, the actions
of Allright do not rise to the level of extreme and outrageous
behavior that Texas law and our prior interpretations of Texas law
in Wilson and Dean require to support a claim for intentional
infliction of emotional distress.
B. Age Discrimination in Employment Act Claim
Allright next contends that the district court improperly
denied its motions for directed verdict, JNOV, and new trial
because there was insufficient evidence for the jury to find that
it discriminated against Ramirez based on his age in violation of
the ADEA. This court laid out the evidentiary procedure for
analyzing an age discrimination claim under the ADEA in Bienkowski
v. American Airlines,Inc., 851 F.2d 1503 (5th Cir. 1988). In
Bienkowski, the court stated:
First the plaintiff must prove a prima facie case of age
discrimination . . . . If the plaintiff succeeds, the
burden of production shifts to the defendant to rebut the
presumption of discrimination created by the prima facie
case by articulating a legitimate, nondiscriminatory
reason for its disparate treatment of the plaintiff.
Finally, the plaintiff must prove that the defendant's
reasons are pretexts for unlawful discrimination either
by showing that a discriminatory reason more likely
motivated the defendant or by showing that the
defendant's reason is unworthy of credence.
Bienkowski, 851 F.2d at 1504-05.
In the present case, Ramirez made out a prima facie case for
age discrimination by producing evidence that at the time Allright
fired him: (1) he was 58 years old; (2) he had worked for 28 years
10
with Allright and had received favorable reviews; and (3) Allright
replaced him with Tinley, who was 22 years of age and had less than
two years of experience in the parking lot business. See Deloach
v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir. 1990). Once
Ramirez made out his prima facie case, the burden shifted to
Allright to articulate a legitimate nondiscriminatory reason for
firing him. Allright argued at trial that they fired Ramirez for
poor job performance, not because of his age. The jury did not
believe Allright, and found that its stated reason for firing
Ramirez was merely a pretext for unlawful discrimination. There
was sufficient evidence for the jury to reject Allright's
explanation as shown by the previously delineated facts and the
statements of Corse and Matocha, which included Corse's statement
that he and Matocha were going to "retire the older employees," and
Matocha's statement that he considered Ramirez to be "less
energetic" and "less motivated" than the other employees. As this
court said in Wilson:
The jury heard both sides and the jury spoke. That is
about all there is to say about age discrimination
liability in this case. There were clearly two sides to
this case. The jury believed . . . [the plaintiff] and
his evidence; it did not believe [the defendant] . . .
. Consequently, the jury's verdict on age discrimination
is affirmed.
Wilson at 1146.
Likewise, the jury has spoken in the present case and decided to
believe Ramirez and his evidence and not to believe Allright and
its evidence. The jury has an inherent right, and indeed, a duty
to reject evidence that they consider lacking in veracity and to
11
believe evidence that they consider trustworthy. Because there was
sufficient evidence for them to believe Ramirez's claim that
Allright discriminated against him based on his age, we will not
disturb their verdict.
Allright next contends that there was insufficient evidence
for the jury to find that it "willfully" violated the ADEA.4 A
violation "is willful if the employer either knew or showed
reckless disregard for the matter of whether its conduct was
prohibited by the ADEA." Burns v. Texas City Refining, Inc., 890
F.2d 747, 751 (5th Cir. 1989). The facts previously recited in
this opinion, coupled with the statement made by Ramirez's son to
Matocha asking him if he was aware of the ADEA were sufficient for
the jury to find that Allright's violation of the ADEA was willful.
C. Damages
Allright contends that the jury's award of $23,760 in back pay
damages was excessive. Generally, the jury's assessment of damages
is entitled to considerable deference, and will be disturbed only
when the award clearly exceeds the amount to which any reasonable
man could feel the claimant is entitled. Enterprise Ref. Co. v.
Sector Ref. Co., 781 F.2d 1116, 1118 (5th Cir. 1986). The
plaintiff's expert economist testified that Ramirez suffered from
$19,963 to $28,510 in back pay loss. That testimony, which was
uncontroverted by Allright, along with Ramirez's employment history
4
Pursuant to 29 U.S.C. ยง 626(b), a finding of a willful
violation of the ADEA entitles the plaintiff to liquidated damages
in the amount of the back pay award. See Burns v. Texas City
Refining, Inc., 890 F.2d 747, 752 (5th Cir. 1989).
12
was sufficient evidence for the jury to reasonably believe that
Ramirez sustained a back pay loss of $23,760.
Next, Allright contends that the district court's award of
$62,362 in front pay, or future lost earnings, was excessive.5 It
is within the district court's discretion to determine the amount
of the front pay award. Deloach v. Delchamps, Inc., 897 F.2d 815,
824 (5th Cir. 1990). The expert for Ramirez testified that
Ramirez's front pay damages were $62,362. Allright did not
introduce expert testimony, or any other evidence controverting
that testimony, and therefore we hold that the district court did
not abuse its discretion in awarding that amount.
For the foregoing reasons, we affirm in part, reverse in part,
and remand to the district court for it to enter judgment in
accordance with this opinion.
5
It is within the discretion of the district court to award
front pay in place of reinstatement, if it finds that reinstatement
is impractical. Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th
Cir. 1990).
13
