IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _____________________ No. 03-3307 & 04-3073 ______________________ RICHARD MILLER, Plaintiff-Appellee, v. EBY REALTY GROUP, LLC, Defendant-Appellant. ____________________________________________________ On Appeal From the United States District Court For the District of Kansas __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING APPELLEE ____________________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . 2 ISSUES PRESENTED . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3 A.. Nature of the Case and Course of Proceedings 3 B. Statement of Facts . . . . . . . . . . . . . . . 4 C. District Court Decisions . . . . . . . . . . . . 9 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . 11 ARGUMENT . . . . . . . . . . . . . . . . . 12 I. BECAUSE THE EVIDENCE WAS SUFFICIENT TO SUPPORT A FINDING THAT EMC'S EXPLANATION FOR FIRING MILLER WAS NOT TRUE, THE DISTRICT COURT PROPERLY INSTRUCTED THE JURY THAT IT COULD INFER THAT EMC WAS MOTIVATED BY MILLER'S AGE . . . . . . . . . . 12 TABLE OF CONTENTS (cont.) II. THE DISTRICT COURT PROPERLY SUBMITTED THE ISSUE OF WILLFULNESS TO THE JURY BECAUSE THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT EBY FIRED MILLER BECAUSE OF HIS AGE ALTHOUGH EBY KNEW THAT IT WAS UNLAWFUL TO DISCRIMINATE ON THE BASIS OF AGE . . . . . . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF COMPLIANCE ADDENDUM CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Cadena v. Pacesetter Corp. , 224 F.3d 1203 (10th Cir. 2000) . . . . . . 11 Carter v. Decision One Corp. Through C.T. Corp. 122 F.3d 997 (11th Cir. 1997) . . . . . . .23 Cummings v. General Motors Corp, ___F.3d ____ , 2004 WL 902325 (10th Cir. Apr. 28, 2004) . . . . . .20 Curtis v.Electronics & Space Corp., 113 F. 3d 1498 (8th Cir. 1997) . . .21 Dodoo v. Seagate Tech., Inc., 235 F.3d 522 (10th Cir. 2000) . . . . . . .23 Davis v. USPS, 142 F.3d 1334 (10th Cir. 1998) . . . . . . . . . 11 Dilley v. SuperValu, Inc., 296 F.3d 958 (10th Cir. 2002) . . . . . .11 Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2000) . . .16 Eastwood v. Dept of Corrections, 846 F.2d 627 (10th Cir. 1988) . . . . .11 EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994) . . . 17, 18 EEOC v. Watergate at Landmark Condominium, 24 F.3d 634 (4th Cir.), cert. denied, 513 U.S. 866 (1994) . . . . . . . . . . . . . 23 Fester v. Farmer Bros., 49 Fed. Appx. 785 (10th Cir. 2002) . . . . . . .24 Furnco Construction Corp. v. Waters, 438 U.S. 567(1978) . . . . . .12 Garrett v. Hewlett-Packard Co., 305 F.3d 1210 (10th Cir. 2002). . . . . .16 Hazen Paper v. Biggins, 507 U.S. 604 (1993) . . . . . .2, 22, 23 FEDERAL CASES (cont.) Hernandez v. Hughes Missile System Co., 362 F.3d 564 (9th Cir. 2004). . .17 Kobrin v. University of Minn., 34 F.3d 690 (8th Cir.1994)................17 Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) ............16 Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir.2000) ...............................................21 Q.E.R., Inc. v. Hickerson, 880 F.2d 1178 (10th Cir.1989) .................... 11 Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097 (2000) . . . .10, 12 Statler v. Wal-Mart Stores, 195 F.3d 285 (7th Cir. 1991)................ 17 Teamsters v. U.S., 431 U.S. 324 (1974) ...................................12, 14 Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981) ........................................... 14 Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232 (10th Cir. 2002).......................................10, 13 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)...................20 Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808 (10th Cir. 2000) ... 17 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . 2, 3 28 U.S.C. §§ 1331 and 1343 .............................................. 3 Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq......... passim PRIOR OR RELATED APPEALS There are no prior or related appeals. IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _____________________ No. 03-3307 & 04-3073 ______________________ RICHARD MILLER, Plaintiff-Appellee, v. EBY REALTY GROUP, LLC, Defendant-Appellant. ____________________________________________________ On Appeal From the United States District Court For the District of Kansas __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING APPELLEE __________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 621 et seq., and other federal laws prohibiting employment discrimination. This appeal raises important issues concerning the indirect method of proving a discriminatory motive and the legal standard for finding that a violation of the ADEA was willful. Defendant's argument that a pretext instruction was not required in this case relies on a formalistic approach to the consideration of the evidence which, if accepted, would undermine the usefulness of the indirect method of proof as a means of assisting the court in ascertaining the truth in discrimination cases. Moreover, it is important that this Court make clear that, under the Supreme Court's decision in Hazen Paper v. Biggins, 507 U.S. 604, 614-17 (1993), a finding of willfulness is proper where the plaintiff demonstrates that the employer knew or should have known that there was a federal law prohibiting age discrimination and the jury finds that the employer falsely asserted that an employment decision was not motivated by age when it in fact was. Accordingly, we offer our views to the Court. STATEMENT OF JURISDICTION This is an appeal from a final judgment of the United States District Court for the District of Kansas. The district court had subject matter jurisdiction over the plaintiff's claims under the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 621 et seq., pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). This Court has jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291. ISSUES PRESENTED<1> 1. Whether the district court acted within its discretion when it instructed the jury that it could infer that the defendant was motivated by plaintiff's age if it did not believe the defendant's explanation for firing him. 2. Whether the district court correctly submitted plaintiff's claim for liquidated damages to the jury where there was evidence from which a reasonable jury could find that the defendant fired plaintiff because of his age, although it knew that such an action was unlawful. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court. The plaintiff filed this action on July 6, 2001, alleging, inter alia, that the defendant willfully violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1) & (d), by firing him because of his age. Appt. 11-19.<2> A jury found for the plaintiff on this claim. On August 20, 2003, the district court denied the defendant's motion for judgment as a matter of law, or a new trial. Appt. 213. The defendant filed a timely notice of appeal on September 17, 2003. Appt. 214- 15. B. Statement of Facts Don Eby is the principal owner of the Eby Companies, a group of more than twenty separately incorporated businesses headquartered in Olathe, Kansas. Appt. 638. On October 27, 1998, Eby hired Richard Miller as general manager of Eby Management Company ("EMC"), a company which operates assisted-care living facilities. Appt. 640. The defendant in this action, Eby Realty Group, Inc., is the successor to EMC. At the time of Miller's hiring, Eby knew that EMC had a non-discrimination policy which, among other things, prohibited employment actions based on age. Appt. 645. Eby testified that, at the time he fired Miller, he knew that there was a federal law prohibiting age discrimination, that "every employee's covered under that law," and that the law prohibited termination based on age. Appt. 645-46. Eby did not know Miller's age until after Miller was hired. Appt. 385, 405-06. However, during the course of Miller's employment, his age was the subject of comment on at least four occasions either by Eby or a member of his immediate family, all of whom worked for the company.<3> Appt. 406-10. In 1998 and 1999, under Miller's management, EMC recorded a profit for the first time in its history. Appt. 392. In May 1999, Eby Development Management ("EDM"), an Eby subsidiary engaged in construction, experienced cash flow problems when Alterra Healthcare Corporation, its largest customer and debtor, suffered significant financial losses. Appt. 701, 822. By October and November 1999, Alterra was not timely paying its debts and had cancelled options with EDM to purchase additional buildings. Appt. 831-32. In response, Eby Companies eliminated twenty-nine positions. Appt. 708; Appt. 32, lines 23, 24. Twenty of the eliminated positions were listed as positions at EDM and there was no evidence that these positions entailed any work for EMC or any of the other Eby Companies. Appt. 652, 817, 962. Four of the eliminated positions were listed as at "EDM/EMC," and they involved work for both EDM and EMC. Appt. 962. The other five positions were carried on the books of EMC exclusively, but they all involved substantial amounts of work for either EDM or one of the assisted care facilities operated by other Eby subsidiaries.<4> Appt. 841. Miller was fired by Eby on November 29, 1999, at around the time the positions were eliminated. Appt. 649. He was 56 years old at the time. Appt. 112. The parties stipulated that, "[w]hen Don Eby terminated Plaintiff's employment, Mr. Eby stated that the sole reason for his doing so was due to a reduction in force." Appt. 113. Miller testified that Eby told him that the general manager position was being eliminated because of financial difficulties and the functions may be performed by Eby himself or his son, Mike. Appt. 402. It is undisputed, however, that Miller's position was not eliminated. Appt. 113, 656. Instead, on November 30, 1999, the day after Miller was fired, Eby hired Alan Fairbanks to replace Miller as general manager of EMC. Appt. 656-57, 664, 666. Fairbanks, who was 32 years old, had been working for EDM.<5> Appt. 657, 763. When Eby gave Fairbanks Miller's position, he also gave him an $8,000 raise and all the benefits Miller had received, so that Fairbanks' compensation package was essentially the same as Miller's had been. Appt. 666-67, 777. After Fairbanks was hired to replace Miller, his position at EDM was eliminated as part of the reduction in force. Appt. 652. Fairbanks was the only person who remained working for one of the Eby Companies after his position was eliminated; of the other twenty-eight, one resigned and twenty-seven were terminated. Appt. 730; 32, lines 23, 24. Miller was the only person terminated at this time whose position was not eliminated. Appt. 30, line 6. After Miller filed a charge with the EEOC alleging that he was fired because of his age, Jill Craft, EMC's vice-president of Human Resources, sent a letter to the agency stating that Miller was fired as part of a reduction in force resulting from the Eby Companies' financial setbacks. Appt. 933-36. The letter states that, in deciding whom to terminate, Don and Mike Eby "considered factors of merit, competence and overall qualifications." Appt. 934. Miller was fired, according to the letter, because he "was not qualified to manage his current responsibilities and carry out the owners' vision for the company's future." Ibid. Craft agreed that the letter was intended to convey to the EEOC that concern over Miller's "performance" was a factor in the decision to terminate him. Appt. 800-01. Prior to trial, however, the parties stipulated that, "[i]n terminating Plaintiff's employment, no consideration of any kind was given to Plaintiff's past performance as general manager." Appt. 113. At trial, Eby offered inconsistent explanations for terminating Miller. He testified at one point that he did not compare Miller and Fairbanks at all when he terminated Miller because he had not yet decided to hire Fairbanks as EMC's general manager. Appt. 653, 656-57. Eby stated that the only reason he terminated Miller was in order to cut costs as part of the reduction in force. Appt. 708. At other points in his testimony, however, Eby testified that he did consider the comparative seniority of Miller and Fairbanks in deciding to terminate Miller and that seniority was "one out of five hundred" reasons for terminating him. Appt. 651-62. When Miller sought to introduce EMC's letter to the EEOC at trial, EMC objected on the ground that the parties' stipulation that Miller's past performance was not a factor in the decision to terminate him rendered the statement in the letter concerning consideration of "merit, competence, and overall qualifications" irrelevant to the issue at trial. Appt. 248-52. The district court overruled the objection and permitted Miller to offer the letter as evidence. Appt. 253-58. Miller then argued that the letter supported his contention that EMC's nondiscriminatory explanation for firing him was pretextual. Appt. 339-40. The jury found that EMC willfully violated the ADEA by firing Miller because of his age. Appt. 196-97. C. District Court Decisions On January 7, 2003, the district court denied the defendant's motion for summary judgment on Miller's claim alleging that his termination was based on age in violation of the ADEA. Appt. 166. The court concluded that there was sufficient evidence to establish a prima facie case of age discrimination and that defendant's evidence that it terminated Miller as part of a reduction in force sufficed to meet its burden of articulating a nondiscriminatory explanation for the challenged employment actions. Appt. 157-58. The court then held that there was sufficient evidence to support a finding that Eby's explanation was a pretext for discrimination. The court noted the inconsistency between the defendant's explanation for discharging the plaintiff soon after the discharge and its explanation after the key players were deposed, as well as the inconsistency between plaintiff's testimony that he was told his position was being eliminated and the fact that the position was filled the next day by someone 24 years his junior. Appt. 155, 158-59. When the case was submitted to the jury, the district court included, over defendant's objection, the following instruction to the jury: "If you disbelieve defendant's proffered explanation for the termination, you may – but need not – infer that defendant's true motive was discriminatory." Appt. 183. After the jury found that Miller was fired because of his age, EMC moved for judgment as a matter of law, or a new trial, arguing, inter alia, that the court should not have given this pretext instruction. Appt. 211. In denying the motion, the court stated that this Court made clear in Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir. 2002), that the instruction was an accurate statement of the law, and must be given in cases like this where "a rational finder of fact could reasonably find the defendant's explanation false and could ‘infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.'" Appt. 212 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2002)). The court rejected defendant's objection to the instruction, noting that the instruction "does not obviate the requirement that the jury must find that defendant acted with discriminatory intent." Appt. 212. STANDARD OF REVIEW When reviewing the district court's denial of a motion for judgment as a matter of law or, in the alternative, for a new trial, this Court applies the same standard as applied in the district court, with the evidence and inferences construed in the light most favorable to the nonmoving party. Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir.1989). "‘[W]e . . . will reverse only if there is no legally sufficient evidentiary basis . . . with respect to a claim or defense ... under the controlling law.'" Cadena v. Pacesetter Corp., 224 F.3d 1203, 1208 (10th Cir.2000) (internal citations omitted). Judgment as a matter of law is appropriate only "if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Davis v. United States Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998) (internal quotations and citations omitted). "This stringent standard of review is further heightened under plain error review, which has been limited to errors which seriously affect the fairness, integrity or public reputation of judicial proceedings." Dilley v. SuperValu, Inc., 296 F.3d 958, 963 (10th Cir. 2002) (internal quotations and citations omitted). Legal issues are decided by applying a de novo standard of review. Eastwood v. Dep't of Corrections, 846 F.2d 627, 629 (10th Cir. 1988). ARGUMENT I. BECAUSE THE EVIDENCE WAS SUFFICIENT TO SUPPORT A FINDING THAT EMC'S EXPLANATION FOR FIRING MILLER WAS NOT TRUE, THE DISTRICT COURT PROPERLY INSTRUCTED THE JURY THAT IT COULD INFER THAT EMC WAS MOTIVATED BY MILLER'S AGE. Richard Miller alleges in this action that EMC fired him because of his age. It is well established that the factfinder in an employment discrimination action may infer that a challenged employment decision was based on a discriminatory motive from evidence showing that the decision was not based on a nondiscriminatory motive. As the Supreme Court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978), "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration." By establishing a prima facie case, a plaintiff eliminates the most obvious nondiscriminatory explanations for a decision. See Teamsters v. U.S., 431 U.S. 324, 357-58 (1974)). Accordingly, a factfinder can infer that intentional discrimination motivated the employment decision if it finds that any additional reasons articulated by the defendant are not the true reasons for the decision. See Reeves, 530 U.S. at 147 ("a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false," will ordinarily "permit the trier of fact to conclude that the employer unlawfully discriminated"). As the district court correctly recognized, the evidence in this case is sufficient to establish a prima facie case and to support a finding that the defendant's stated reasons for its actions were not its true reasons. Accordingly, under Reeves, the jury could infer, without affirmative proof, that the decisions were based on Miller's age. Consistent with this Court's decision in Townsend, the district court was therefore required to give the jury an instruction to this effect because Miller sought to establish employment discrimination by the indirect method of proof. Townsend, 294 F.3d at 1241. While acknowledging that the pretext instruction is an accurate statement of the law, EMC argues that no such instruction is warranted here because "there was insufficient evidence of pretext" to support a finding of pretext. EMC Br. at 32. This argument is based on a distorted characterization of the factual dispute that was before the jury. When Miller's claim is properly understood, there was ample evidence to support a finding that EMC's explanation for the decision to fire him does not reflect the true reasons for its actions, and, therefore, the district court correctly gave the Townsend instruction. An individual disparate treatment claim, like the one at issue in this case, is "the most easily understood form of discrimination." Teamsters , 431 U.S. at 335 n.15. The issue is whether Miller was fired by EMC because of his age, as he alleges, or for nondiscriminatory reasons, as EMC contends. The indirect method of proof was designed to aid the court in arriving at the truth with regard to this question of motivation by focusing the inquiry on the nondiscriminatory reasons which the employer contends actually motivated its decision. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981) ("Placing th[e] burden of production on the defendant . . . serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext."). Accordingly, the focus of the issue before the jury in this case was on determining whether EMC's explanation for its decision to fire Miller represents the true reasons for its action. EMC's explanation for Miller's termination has varied considerably over time. It is undisputed that the only explanation Eby gave when he fired Miller was that it was "due to a reduction in force." When confronted with Miller's charge alleging that he was fired because of his age, EMC responded by stating that the company decided to fire Miller because it felt that he "was not qualified to manage his current responsibilities and carry out the owners' vision for the company's future." However, after Miller filed suit, EMC stipulated that "no consideration of any kind was given to Plaintiff's past performance as general manager."<6> EMC argues that the effect of the stipulation was to "remove[] all performance issues from the case." EMC Br. at 28-30. According to the company, in light of the stipulation, the case should turn on whether Eby's original statement that Miller was fired due to a reduction in force was pretextual, without consideration of its intervening assertions. Furthermore, the company argues, when consideration is limited to the reduction in force, there is insufficient evidence of pretext in light of the undisputed evidence that Don Eby "ordered substantial layoffs throughout the Eby Companies" based on his belief that "the Eby Companies were in a financial crisis." Id. at 30-33. We disagree on both points. There is ample evidence to support a finding that EMC's explanation for the decision to fire Miller does not reflect the true reasons for its actions and, therefore, the district court correctly gave the Townsend instruction. The stipulation represents a factual admission by EMC that the company did not consider Miller's performance in deciding to fire him; it does not negate the fact that the company earlier gave performance-related reasons for the decision. Contrary to EMC's argument, the jury was entitled to consider the fact that EMC has offered shifting and inconsistent explanations in determining whether its current version of events is merely a pretext designed to cover up a discriminatory motive. As this Court has stated, "A plaintiff can show pretext by revealing ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions [such] that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reason." Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (emphasis added). See also, Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("when a company, at different times, gives different and arguably inconsistent explanations [regarding its reasons for terminating an employee], a jury may infer that the articulated reasons are pretextual"); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (inconsistent explanations for termination sufficient to support jury verdict in ADEA case); Kobrin v. Univ. of Minn., 34 F.3d 690, 703 (8th Cir. 1994) ("[s]ubstantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext"); Stalter v. Wal-Mart Stores, 195 F.3d 285, 291 (7th Cir. 1991) (shifting and inconsistent explanations can provide a basis for finding of pretext). Cf. Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 813 (10th Cir. 2000) (evidence supported finding of pretext on race discrimination claim under 42 U.S.C. § 1981, noting that "[w]e are disquieted . . . by an employer who ‘fully' articulates its reasons for the first time months after the decision was made"). EMC suggests that the stipulation does not support a finding of pretext because it tends to show only that the company's prior explanation for firing Miller was false, but says nothing about its contention at trial that Miller wasfired because of the reduction in force. EMC Br. at 20-24. However, as courts have recognized, an employer's "conflicting explanations of its conduct" provide a sufficient basis for "a jury to reasonably conclude that its most recent explanation was pretextual." Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 569 (9th Cir. 2004). Where, as here, an employer shifts its explanation, a jury can infer that all of the offered explanations, including the explanation offered at trial, were pretextual, "developed over time to counter the evidence" as it comes out. Ethan Allen, 44 F.3d at 120. This is particularly true in light of the fact that EMC has made no attempt to explain why it offered the EEOC an explanation for firing Miller which it has now stipulated was, at least in part, false. Furthermore, contrary to EMC's contention, there was ample evidence, in addition to the company's inconsistency, to support a finding that its current explanation for firing Miller – to cut costs in a reduction in force – was not its true reason. EMC's argument to the contrary is based on a mischaracterization of the employment decision at issue in this case. Miller argued below that there was no reduction in force at EMC since, except for a janitor who worked for assisted living facilities, he was the only person fired who did not work at least part of the time for EDM. In its brief, the company agrees that there was no reduction in EMC's work force. EMC Br. at 6. Its only response to Miller's argument is to point to evidence that, due to the close relationship among the Eby Companies, "financial setbacks at one affected all," so that there was a need to cut costs at all the Eby Companies. EMC Br. at 21. This explanation would have some facial credibility if Miller's job was eliminated, as Miller testified he was told it would be. However, it is undisputed that Miller's job was not eliminated. It was given to Fairbanks and then Fairbanks' job at EDM was eliminated. The decision to move Fairbanks into Miller's job, at the same salary, rather than simply to fire Fairbanks cannot be explained on financial grounds since it did not save EMC, or the Eby Companies as a whole, any money. EMC's letter to the EEOC, by citing concerns about Miller's performance did offer at least a facially plausible explanation for the decision to terminate Miller, but the company has stipulated that that explanation was not true. Accordingly, the jury was left with an explanation – the reduction in force resulting from the company's financial setback – that was implausible on its face. II. THE DISTRICT COURT PROPERLY SUBMITTED THE ISSUE OF WILLFULNESS TO THE JURY BECAUSE THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT EBY FIRED MILLER BECAUSE OF HIS AGE ALTHOUGH EBY KNEW THAT IT WAS UNLAWFUL TO DISCRIMINATE ON THE BASIS OF AGE. EMC argues that, even if the evidence was sufficient to support a finding that Miller was fired because of his age, a reasonable jury could not find that the discrimination was "willful," and, therefore, the award of liquidated damages should be reversed. EMC Br. at 24. To establish willfulness under the ADEA, a plaintiff must show that the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985). The evidence in this case was sufficient to support a finding of willfulness under this standard.<7> As discussed above, the jury properly found, based on the evidence, that Eby decided to fire Miller because of Miller's age. There was also ample evidence that Eby knew that it was a violation of federal law to fire someone based on his age. At the time of Miller's termination, Eby knew that EMC had a policy prohibiting age discrimination, that federal law prohibited age discrimination, and that Eby believed that the ADEA applied to all employees, not just those age 40 and over. Appt. 644-46. A reasonable jury could conclude that this level of knowledge is sufficient to hold Eby liable for liquidated damages on the grounds that he "knew or should have known" his actions violated federal law. See Curtis v. Electronics & Space Corp., 113 F.3d 1498, 1502-03 (8th Cir. 1997) (jury properly found willfulness under ADEA where decision maker knew that age-based employment actions are unlawful). As discussed above, the evidence would support a finding that the defendant gave a false explanation for the decision to fire Miller in order to cover up the fact that it based the decision on his age. This is enough to support a finding that Eby, EMC's principal, knew that Miller's termination violated the ADEA, or, at least, showed "reckless disregard" for whether it did. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000) (jury could have concluded that the defendants did not reasonably believe their conduct was lawful because they lied to the plaintiff and at trial in order to conceal their discriminatory actions against her). As the Supreme Court said, "It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages." See Hazen Paper, 507 U.S. at 617. An employer who discriminates on the basis of age does not act willfully where it believed in good faith that its actions did not violate the ADEA. As the Supreme Court pointed out in Hazen Paper, "the ADEA is not an unqualified prohibition on the use of age in employment decisions," but rather provides defenses and exemptions. 507 U.S. at 616. Accordingly, "if an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed." Id. EMC has not argued that it mistakenly believed that firing Miller because of his age would not violate the ADEA based on some defense or exemption provided by the statute. In the absence of a good-faith basis for a belief that its actions were consistent with the proscriptions of the ADEA, liquidated damages were appropriately awarded. In its brief, EMC argues that to establish willfulness Miller was required to show not only that he was fired because of his age, but also that age was "the predominant factor" in the decision to fire him. EMC Br. at 25-26. In making this argument, EMC relies entirely on cases decided before the Supreme Court's decision in Hazen Paper. However, in Hazen Paper, the Court specifically rejected the argument that a more stringent willfulness standard applies in cases like this challenging a single discriminatory employment decision. Id. ("Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision."). Courts have recognized that Hazen Paper overruled the cases cited by EMC and other cases that imposed a heightened standard on individual disparate treatment claims. See, e.g., Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 532 (10th Cir. 2000) (under Hazen Paper, willfulness was properly found where jury determined defendant's explanation was pretextual); Carter v. Decision One Corp. Through C.T. Corp., 122 F.3d 997, 1006 (11th Cir. 1997) (under Hazen Paper, the jury's rejection of the defendant's pretextual explanation for its adverse employment action combined with the defendant's knowledge that the ADEA prohibited age discrimination is sufficient to support a willfulness award); EEOC v. Watergate at Landmark Condominium, 24 F.3d 635, 641 (4th Cir.) (under Hazen Paper, an employer "who pretends a decision was not age-based when in fact it was" willfully violates the ADEA), cert. denied, 513 U.S. 866 (1994). See also Fester v. Farmer Bros., 49 Fed. Appx. 785, 793 (10th Cir. 2002) (unpublished) (after Hazen Paper, plaintiff does not have to provide additional evidence of outrageousness or that age discrimination was the "predominant reason" for the employment decision to support a finding of willfulness).<8> Therefore, the district court did not abuse its discretion when it submitted a willfulness instruction to the jury. CONCLUSION For the foregoing reasons, the Commission asks this Court to reject the defendant's challenges to the district court's decision to submit a pretext instruction and to permit the jury to consider the issue of willfulness. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ SUSAN L.P. STARR Attorney Equal Employment Opportunity Commission 1801 L Street, N.W., Ste. 7020 Washington, D.C. 20507 202/663-4727 May 13, 2004 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 5,420 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes, both in Times New Roman. See Fed. R. App. P. 32(a)(5). _________________________ Susan L.P. Starr, Esq. May 13, 2004 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLEE RICHARD MILLER Mick Lerner, Esq. J. Randall Coffey, Esq. OFFICE OF MICK LERNER, P.A. BIOFF FINUCANE COFFEY 10875 Benson HOLLAND & HOLSER, LLP Overland Park, KS 66210 The Stilwell Bldg., Ste 400 104 W. 9th Street Kansas City, MO 64105-1733 COUNSEL FOR DEFENDANT-APPELLANT EBY REALTY GROUP Carl A. Gallagher, Esq. William E. Quirk, Esq. MCANANY VAN CLEAVE & PHILLIPS P.A. SHUGHART THOMAS & 707 Minnesota Avenue, Fourth Floor KILROY, P.C. P.O. Box 171300 Twelve Wyandotte Plaza Kansas City, KS 66117 120 W. 12th Street Kansas City, MO 64105 __________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Suite 7020 Washington, D.C. 20507 May 13, 2004 ADDENDUM *********************************************************************** <> <1> The Commission takes no position on any other issues raised in this appeal. <2> “Appt.” refers to Appellant Eby Realty’s appendix. <3> After a lunch on Miller’s first day of work, after Eby complained that he was “old and creaky,” Miller stated that he was older than Eby. Appt. 406. On another occasion, when a slide of a ninety-year-old man in a bathing suit was shown, Eby stated to a group including Miller, Don Eby’s wife Judy and his son, “That’s what Richard Miller’s going to look like soon.” Appt. 407-08. On two other occasions, Judy Eby came into Miller’s office and commented on his youthful appearance given his age. Appt. 408-10. <4> Four of these were accounting positions involving work which was directly affected by EDM’s losses. The fifth was a custodian position which was paid by EMC, but EMC was reimbursed by the facilities for which the custodian worked, which were identified as “assisted-care facilities.” Appt. 841. Paul Thoma, head of accounting and tax for the Eby Companies, testified that an EMC marketing manager position was also eliminated but defendant’s records do not list anyone as being terminated from that position. Appt. 828, 962. <5> Fairbanks testified that he worked for EMC throughout 1999, so he did not switch companies when he replaced Miller. Appt. 766. However, Fairbanks is not listed on EMC’s payroll records in November1999; Fairbanks’ W-2 forms reflect that he earned $66,000 from EDM and $8,200 from EMC in 1999; and an Eby Companies’ document states that Fairbanks was a product manager for EDM from June 1998 through December 1999. Appt. 712-715, 764-66, 958. <6> Appellant’s brief quotes its counsel as asserting that “the parties have stipulated the reason that Mr. Miller was terminated was a reduction in work force.” EMC Br. at 29. This is an inaccurate representation of the stipulation. As noted above, the parties stipulated only that Eby told Miller that he was being fired due to a workforce reduction. <7> It is not clear that EMC preserved this issue for appeal. An appellant may not argue on appeal that the evidence was insufficient to support a jury verdict unless it made the argument in a motion for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. See Cummings v. General Motors Corp, ____F.3d ____ , 2004 WL 902325, *3 (10th Cir. Apr. 28, 2004) (“a party challenging the sufficiency of the evidence during a civil trial must make a motion for judgment as a matter of law before the case is submitted to the jury, in accordance with Federal Rule Civil Procedure 50(a)”). A party’s failure to make such a motion “bars appellate review of the sufficiency of the evidence.” Id. at *4. Further, the motion must identify the issues with sufficient specificity “‘to apprise the court and opposing counsel of the movant’s position with respect to the motion.’” Ibid (internal citation omitted). Although this Court liberally construes such motions, “‘merely moving for directed verdict is not sufficient to preserve any and all issues that could have been, but were not raised in the directed verdict motion,’” particularly where the movant fails to challenge the jury instruction on the specific issue. Ibid (internal citation omitted). In its motions for judgment as a matter of law, EMC argued generally that the evidence was insufficient to support the jury verdict, but this argument was confined to the issue of whether there was sufficient evidence of pretext to support a finding of age discrimination. The company did not argue, as it does on appeal, that, even if the evidence would support a finding of age discrimination, it would not support a finding of willfulness. Furthermore, EMC failed to object to the district court’s instruction submitting the willfulness issue to the jury. Appt. 189, 862. <8> Under this Court’s rules, “an unpublished decision may be cited (1) if it has persuasive value with respect to a material issue that has not been addressed in a published decision and (2) it will assist the court in its disposition.” Tenth Circuit Rule 36.3(B).