Filed: Jun. 26, 1997
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-3269 _ Jacquelyn Krumwiede, * * Appellant, * * v. * * Mercer County Ambulance * Service, Inc., * * Appellee. * _ Appeals from the United States No. 96-3387 District Court for the _ District of North Dakota. Jacquelyn Krumwiede, * * Appellee, * * v. * * Mercer County Ambulance * Service, Inc., * * Appellant. * _ Submitted: March 12, 1997 Filed: June 26, 1997 _ Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY,1 District Judge. _
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-3269 _ Jacquelyn Krumwiede, * * Appellant, * * v. * * Mercer County Ambulance * Service, Inc., * * Appellee. * _ Appeals from the United States No. 96-3387 District Court for the _ District of North Dakota. Jacquelyn Krumwiede, * * Appellee, * * v. * * Mercer County Ambulance * Service, Inc., * * Appellant. * _ Submitted: March 12, 1997 Filed: June 26, 1997 _ Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY,1 District Judge. _ W..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3269
___________
Jacquelyn Krumwiede, *
*
Appellant, *
*
v. *
*
Mercer County Ambulance *
Service, Inc., *
*
Appellee. *
___________
Appeals from the United States
No. 96-3387 District Court for the
___________ District of North Dakota.
Jacquelyn Krumwiede, *
*
Appellee, *
*
v. *
*
Mercer County Ambulance *
Service, Inc., *
*
Appellant. *
___________
Submitted: March 12, 1997
Filed: June 26, 1997
___________
Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY,1 District Judge.
___________
WOLLMAN, Circuit Judge.
Jacquelyn Krumwiede brought this action pursuant to the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621, et. seq., alleging age discrimination by
Mercer County Ambulance Service, Inc. (Ambulance Service). Krumwiede appeals
from the district court’s2 limitation on the size of the jury and the court’s partial grant
of judgment as a matter of law (JAML). Ambulance Service cross-appeals from the
court’s denial of its motion for summary judgment. We affirm.
I.
At the time of the events giving rise to this action, Ambulance Service consisted
of two full-time employees (coordinator and assistant coordinator) and one part-time
employee (bookkeeper). In addition, Ambulance Service utilized the services of forty-
seven volunteers.
Krumwiede was hired as coordinator for Ambulance Service in July of 1985.
Jodee Schwarz was hired as assistant coordinator for Ambulance Service in 1988. The
two performed essentially the same duties. In June of 1993, Ambulance Service
decided to consolidate the coordinator and assistant coordinator positions in an effort
to cut costs. Krumwiede (who was then forty-eight) and Schwarz were terminated on
June 30, 1993. Both applied for the consolidated position, along with five others. A
1
The HONORABLE NANETTE K. LAUGHREY, United States District Judge
for the Eastern and Western Districts of Missouri, sitting by designation.
2
The Honorable Dwight C. H. Kautzmann, United States Magistrate Judge for
the District of North Dakota, before whom the case was tried by consent of the parties
pursuant to 28 U.S.C. § 636(c).
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committee consisting of five of Ambulance Service’s board members interviewed
Krumwiede, Schwarz, and one other applicant and voted unanimously to hire Schwarz,
who was then under forty.
Krumwiede filed a complaint with the Equal Employment Opportunity
Commission (EEOC), alleging that she had been terminated and not rehired on the basis
of her age. She subsequently filed suit in the district court, alleging violations of the
ADEA. Krumwiede asserted that Ambulance Service’s age discrimination is shown by
the fact that the other two interviewees were both younger and that Schwarz was hired
in her place, despite the fact that Schwarz was less qualified. Krumwiede also pointed
to a co-worker’s references to her as “granny” or “grandma” and to a co-worker’s
comments about the ability of two of Ambulance Service’s older volunteers’ to perform
their jobs. Krumwiede alleged that Ambulance Service’s assertion of financial problems
as the reason for consolidating the two positions was pretextual inasmuch as Ambulance
Service was at the time considering purchasing an expensive ambulance and additional
equipment.
Ambulance Service contended that Krumwiede was an employee-at-will and that
her termination was the result of a reduction in force (RIF). Ambulance Service
asserted that consolidating Krumwiede’s and Schwarz’s positions was only one of a
number of cost-savings measures it had implemented to cope with its severe financial
problems. Ambulance Service’s chairman testified that consolidating the positions was
a logical place to cut costs since neither Krumwiede nor Schwarz was very busy, they
had basically the same duties, and their positions were different in name only.
At the close of Krumwiede’s case, Ambulance Service moved for JAML, which
the court granted with respect to the termination claim. The failure to rehire claim was
submitted to a jury, which returned a verdict for Ambulance Service.
II.
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Krumwiede contends that the district court abused its discretion in denying her
demand for a nine-member jury, pointing to Rule 38(c) of the North Dakota Rules of
Civil Procedure, which allows a party to demand a nine-member jury. The Federal
Rules of Civil Procedure provide that “[t]he court shall seat a jury of not fewer than six
and not more than twelve members . . . .” Fed. R. Civ. P. 48. Rule 47.1CV of the
Local Rules of the United States District Court for the District of North Dakota provides
that “[i]n all jury cases, the size of the jury shall be determined at the discretion of the
presiding judge consistent with the language of Fed. R. Civ. P. 48.” The district court’s
decision to limit the jury to six members was thus consistent with the federal and local
rules of civil procedure and the Seventh Amendment.
Krumwiede argues that the district court erred in granting JAML on her
termination claim. She contends that the district court mistakenly applied the standard
set forth in Holley v. Sanyo Mfg., Inc., 771 F.2d 1161 (8th Cir. 1985), and rejected the
standard set forth in Brooks v. Woodline Motor Freight, Inc.,
852 F.2d 1061 (8th Cir.
1988), and in doing so erroneously required that she prove age discrimination through
direct evidence. Brooks is inapposite, however, as it was not a RIF case, and Holley
remains the law in this circuit in RIF cases. See Bashara v. Black Hills Corp.,
26 F.3d
820, 823 (8th Cir. 1994); Herrero v. St. Louis Univ. Hosp.,
109 F.3d 481, 483-84 (8th
Cir. 1997). See also Ryther v. KARE 11,
108 F.3d 832, 836 n.1 (8th Cir. 1997) (en
banc), petition for cert. filed,
65 U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571).
Moreover, Krumwiede’s assertion that the district court required direct evidence of
discrimination is belied by the record, for the district court stated, “[t]here is absolutely
no evidence whatsoever in this record, direct or circumstantial, that on the termination
there was any age discrimination,” and observed that Krumwiede must prove
discrimination with “direct or circumstantial evidence.”
To establish a prima facie case of age discrimination in a RIF context,
Krumwiede must: “(1) show that she was within the protected age . . . group; (2) show
that she met applicable job qualifications; (3) show that she was discharged; and (4)
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produce some additional evidence that a prohibited criterion such as age . . . was a
factor in her termination.” Herrero, 109 F.3d at 483-84 (citing
Bashara, 26 F.3d at 823)
(citing
Holley, 771 F.2d at 1665)). The district court concluded that Krumwiede failed
to satisfy the fourth requirement.
Our standard of review for the grant of JAML is the same as that applied by the
district court. See Nolte v. Pearson, 994 F.2d 1311, 1315 (8th Cir. 1993). Accordingly,
we assume that Krumwiede’s evidence is true, and we give her the benefit of all
inferences that can reasonably be drawn from that evidence.
Id. The district court’s
grant of JAML is proper only if Krumwiede presented insufficient evidence to support
a jury verdict in her favor.
Id.
Krumwiede’s bases for alleging that her termination was age motivated were the
reference to her as “granny” and the comments about certain of the volunteer workers.
The reference to Krumwiede as “granny” was made by a co-worker who had no
decision-making authority for Ambulance Service. Moreover, there is no evidence
suggesting that Ambulance Service was aware of those comments, as Krumwiede
admittedly never asked her co-worker to stop referring to her in that manner, nor did she
ever complain to Ambulance Service regarding such comments. Accordingly, such
comments do not constitute any evidence of an impermissible motive on the part of
Ambulance Service. See
Herrero, 109 F.3d at 484 (“Statements may constitute
evidence of impermissible motive only when they are made by decisionmakers in the
termination process and reflect a discriminatory animus such that a jury could infer it
was a motivating factor in the termination process.”). For the same reason, the
comments made by a co-worker about the volunteer workers do not constitute evidence
of age discrimination towards Krumwiede, as they were likewise not made by a
decisionmaker and did not even refer to Krumwiede. See
id.
Krumwiede also argues that Ambulance Service’s proffered reason for
consolidating the coordinator positions was pretextual because at the same time that
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Ambulance Service was implementing its RIF it was considering buying a new
ambulance and other equipment. There is substantial evidence, however, that
Ambulance Service was indeed experiencing financial difficulties at the time
Krumwiede was terminated, and we will not review “the wisdom or fairness of the
business judgment made by employers, except to the extent that those judgments
involve intentional discrimination.” Id. at 485 (quoting Hutson v. McDonnell Douglas
Corp.,
63 F.3d 771, 781 (8th Cir. 1995). A number of witnesses testified regarding the
other cost-saving measures that were implemented during the relevant time period: the
elimination of overtime pay and extra office help; the discontinuation of health insurance
benefits and volunteers’ reimbursements for meals and mileage; and the reduction in the
payment to volunteers for transferring patients. Krumwiede’s contention that
Ambulance Service’s alleged financial woes were merely a pretext for terminating her
becomes even more unconvincing given her admission that there were legitimate
business reasons for implementing the cost-saving measures, that at the time there was
a need for Ambulance Service to minimize costs and reduce overhead, and that
consolidating the coordinator positions would result in significant savings to Ambulance
Service. See
Herrero, 109 F.3d at 484 (concluding that RIF was bona fide and not
pretextual based on uncontradicted evidence of financial problems, plaintiff’s
concession that a RIF was necessary, and uncontradicted testimony that RIF was sole
reason for termination).
In sum, we conclude that the record is devoid of any evidence showing that
Krumwiede’s termination was age-motivated. Accordingly, the district court did not err
in entering JAML for Ambulance Service on the ADEA claim.
The judgment is affirmed.3
3
In light of our disposition, we need not address the cross-appeal, nor need we
address Krumwiede’s contention that the district court erred in excluding certain
evidence.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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