UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30287
J.R. RIDGLEY WYVILL
Plaintiff/Appellee/Cross-Appellant,
v.
UNITED COMPANIES LIFE INSURANCE COMPANY; UNITED COMPANIES
FINANCIAL CORPORATION
Defendants/Appellants/Cross-Appellees,
UNITED COMPANIES LENDING CORPORATION
Appellant/Cross-Appellee.
GERALD W. WALDROP
Plaintiff/Appellee/Cross-Appellant,
v.
UNITED COMPANIES FINANCIAL CORPORATION; UNITED COMPANIES
MORTGAGE OF GEORGIA
Defendants/Appellants/Cross-Appellees,
UNITED COMPANIES LENDING CORPORATION
Appellant/Cross-Appellee.
Appeals from the United States District Court for the
Middle District of Louisiana
May 31, 2000
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant United Companies appeals from the judgment of
the district court, entered upon a jury verdict, awarding
substantial damages to two former employees under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.
Unfortunately, the verdict depends on evidence that this court and
others have held inadmissible to support an inference of age
discrimination. In particular, the district court allowed the
plaintiffs to saturate the record with testimony pertaining to
other employees in other branches of the company who held different
positions under different supervisors and were terminated at
different times. Shorn of this and other irrelevant evidence, the
judgment cannot stand.
I. BACKGROUND
Gerald Waldrop began work with United Companies Lending
Corporation (the “Lending Company”), a subsidiary company of
defendant United Companies Financial Corporation (“United
Companies”), in 1983 as branch manager in Dalton, Georgia.1
Waldrop’s duties included the production of a certain number of
loans per month, ensuring that branch staff adequately processed
new and existing loans, collecting loans to minimize delinquency
rates, and maintaining balanced escrow logs. From 1991 to 1993,
1
Waldrop was hired by United Mortgage of Georgia which was later merged
with United Companies Lending Corporation.
2
the period relevant to this litigation, Waldrop supervised four
employees: Sandy Stafford, who was assistant manager; Pat McMillan;
Cheryl Welch; and Pat Little. During this period, Waldrop was
supervised by D.C. Brantley, who was two years older than Waldrop,
and Brantley was in turn supervised by Joe Phillips. Waldrop was
terminated from his job in January 1993 when he was forty-seven
years old.
According to United Companies, Waldrop’s relationship
with Brantley began to deteriorate in 1990. Waldrop struck
Brantley in the back of the head at a Company function, calling him
a son-of-a-bitch, and threatening to “whip his ass” if he ever came
to Dalton. When United Companies dismissed Waldrop’s son in early
1991, the discord between Waldrop and Brantley escalated. During
a telephone conversation among Waldrop, Brantley and Phillips,
Waldrop allegedly threatened Brantley with physical harm and told
him to keep out of the dispute. Waldrop’s insubordination became
so intolerable that Brantley sent a memorandum to Phillips asking
to be relieved from supervision of the Dalton branch.
Waldrop also had problems with the Dalton branch
employees. His abusive behavior towards staff and customers was
brought to the attention of William S. Spann, Jr., United
Companies’ Director of Human Resources, by Sandy Stafford.
In May 1991, Waldrop was given a six-week paid leave of
absence. Waldrop contends that medical problems associated with
3
his diabetes forced this leave, while United Companies argues that
the leave was necessitated by Waldrop’s problems in the office and
with his supervisor. Upon Waldrop’s return, his relationship with
his staff did not improve. In the fall of 1991, he brought both
Stafford and Welch to tears after separate outbursts. In November
1991, Spann and Phillips reprimanded Waldrop and made him apologize
to his employees.
A year later, two of the Dalton branch employees --
McMillan and Welch -- left the Lending Company. In post-
resignation letters to Spann, they blamed Waldrop’s behavior for
their departures. After receiving these letters, Spann called
McMillan, Welch, and Stafford and discovered that Waldrop’s
behavior had not improved. He discussed Waldrop’s behavior with
Phillips and they decided to terminate Waldrop. Spann (age 47),
Phillips (age 45), and Brantley (age 49) attended the meeting at
which Waldrop was dismissed.
Waldrop does not dispute these events. Rather, he points
out that throughout his employment, he and his branch were
consistently among the top ten performers in the Lending Company,
in terms of quantity and profitability of the loans produced. He
also asserts that new employees were often sent to him for training
and that several of his assistant branch managers became successful
managers of their own branches. In addition, he offered evidence
that Stafford and McMillan visited his home after his termination,
4
Stafford to ask for his blessing in succeeding him as branch
manager, and McMillan to show him her grandchild. Waldrop contends
that these visits were not the actions of employees afraid of or
antagonized by an abusive and rude boss.
J.R. Ridgley Wyvill began employment with United
Companies Life Insurance Company (the “Life Company”), a subsidiary
of United Companies, in 1978. From 1980 until his dismissal in
February 1993, Wyvill managed the credit life department in Baton
Rouge, Louisiana. He was supervised by Lindsay Seals, an executive
vice-president of the Life Company, who in turn reported to Gary
Warrington, the president of the Life Company.
In January 1993, Wyvill made several allegedly disruptive
phone calls to employees of the Lending Company about Waldrop’s
termination. Carl Scott, a Lending Corporation branch manager in
Nashville, heard from Wyvill on January 29, 1993, three days after
Waldrop had been fired. Wyvill informed Scott that United
Companies “had gotten the Chief,” referring to Waldrop, and he
warned Scott to “watch his backside.” Scott testified that he did
not know Wyvill before this call and that the call upset him. He
reported the call to Phillips.
The second call was made to Sandy Stafford, Waldrop’s
assistant manager. Like Scott, Stafford did not know Waldrop and
had only met him on two previous occasions during her nine years
with United Companies. Stafford was being considered as a
5
replacement for Waldrop, and Wyvill warned her that if she took the
position, she would be taking “blood money.” Later, Wyvill called
Stafford again and asked her to lie to United Companies management
who were investigating his telephone calls. Stafford refused.
According to Wyvill, he placed these calls at the behest
of Tee Brown, Jr., the son of Terrell Brown, Sr., the CEO of United
Companies. The younger Brown wanted Wyvill to investigate an
underground newspaper at United Companies, The Unlink, that had
been critical of United Companies management.
Upon receiving Scott’s report about Wyvill’s phone call,
Phillips pulled the telephone record of calls made from Wyvill’s
office and discovered that Wyvill had placed phone calls to several
former employees who had been terminated or had left under
unpleasant circumstances. Phillips notified Spann about these
calls, and Spann and Roger Clark, the president of the Lending
Corporation, called Stafford and were told about Wyvill’s phone
call to her.
A meeting was then held, attended by United Companies
senior management and Wyvill, where Wyvill was questioned about the
nature of his calls. Wyvill did not mention that the calls were
part of his investigation into The Unlink. Finding Wyvill’s
explanations insufficient, Wyvill’s direct supervisors, Seals (age
58) and Warrington (age 53), with the agreement of the assembled
6
managers, terminated him effective February 1, 1993. Wyvill was
fifty-three years old.
According to Wyvill, his silence with regard to The
Unlink investigation was meant to protect Tee Brown. Wyvill later
produced testimony that when Brown, Sr. discovered that his son had
put Wyvill up to the calls, he paid Wyvill $5000 to “leave
quietly.”
Both Wyvill and Waldrop sued their former employers.
Their cases were consolidated over the dissent of United Companies.
After procedural skirmishing and a mistrial followed by a six-day
trial, the jury returned a verdict finding that the plaintiffs had
been discriminated against because of their age and that the
discrimination had been willful. The jury awarded Waldrop
$76,569.00 in back pay and Wyvill $186,939.00 in back pay. The
district court entered judgment on the jury’s verdict, effectively
doubling each man’s back pay award because of the finding of
wilfullness. 29 U.S.C. § 626(b). Front-pay to Wyvill, pre-
judgment interest, and attorneys’ fees were added to the judgment.
United Companies appeals, renewing its arguments,
properly preserved in the district court, that the verdict was not
supported by substantial evidence and that the district court erred
in admitting testimony about and from former United Companies
employees who were not similarly situated to either Wyvill or
7
Waldrop. In addition, United Companies appeals, and Wyvill and
Waldrop cross-appeal, various issues relating to damages. Because
we reverse for evidentiary errors and insufficient proof of
liability, we do not reach the parties’ other arguments.
II. DISCUSSION
A. Standard of Review
We review the district court’s denial of a motion for
judgment as a matter of law de novo. Scott v. Univ. of Miss., 148
F.3d 493, 503 (5th Cir. 1998). “‘A motion for judgment as a matter
of law . . . in an action tried by jury is a challenge to the legal
sufficiency of the evidence.’” Id., quoting Harrington v. Harris,
118 F.3d 359, 367 (5th Cir. 1997). Jury verdicts are considered
under the standards established in Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir. 1969)(en banc), overruled on other grounds,
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en
banc), viewing all the evidence and drawing all reasonable
inferences in the light most favorable to the verdict. Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)(en banc),
citing Boeing, 411 F.2d at 374.
Under Boeing, there must be a conflict in substantial
evidence to create a jury question. Scott, 148 F.3d at 504.
“Substantial evidence is defined as ‘evidence of such quality and
weight that reasonable and fair-minded men in the exercise of
8
impartial judgment might reach different conclusions.’” Rhodes, 75
F.3d at 993, quoting Boeing, 411 F.2d at 374. “A mere scintilla of
evidence is insufficient to present a question for the jury.”
Boeing, 411 F.2d at 374.
B. Analysis of Plaintiffs’ Claims
In the absence of direct proof of discrimination, the
plaintiff in an age discrimination case must follow the three-step
burden-shifting framework laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981). United Companies argues that
Wyvill and Waldrop failed to set out the McDonnell/Douglas-Burdine
prima facie case of age discrimination, and their claims should be
dismissed. However, because this case has been fully tried on the
merits, we “need not address the sufficiency of [plaintiffs’] prima
facie case, and may instead proceed directly to the ultimate
question of whether [plaintiffs] have produced sufficient evidence
for a jury to find that discrimination has occurred.” Atkin v.
Lincoln Property Co., 991 F.2d 268, 271 (5th Cir. 1993)(quotations
omitted).
The critical issue is thus whether Waldrop and Wyvill
produced sufficient evidence that United Companies’ explanation for
their discharges was merely a pretext for age discrimination. In
9
Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996)(en
banc), the Fifth Circuit discussed the burden confronting an ADEA
plaintiff trying to prove pretext:
[A] jury issue will be presented and a
plaintiff can avoid summary judgment and
judgment as a matter of law if the evidence
taken as a whole (1) creates a fact issue as
to whether each of the employer’s stated
reasons was what actually motivated the
employer and (2) creates a reasonable
inference that age was a determinative factor
in the actions of which the plaintiff
complains. The employer, of course, will be
entitled to . . . judgment if the evidence
taken as a whole would not allow a jury to
infer that the actual reason for the discharge
was discriminatory.
Rhodes, 75 F.3d at 994. United Companies argues that plaintiffs
did not meet this burden, and we agree. Having comprehensively
reviewed the evidence, we conclude that while plaintiffs’ evidence
may have cast doubt on the proffered explanations for their firing
or on the soundness of the company’s business decision, it was
insufficient to show that the real reason was age discrimination.
C. Plaintiffs’ Evidence of Pretext
1. Anecdotal Evidence
Plaintiffs strongest age-related evidence was “anecdotal”
testimony from former United Companies employees that United
Companies had a “pattern and practice” of discriminating against
older workers. This evidence included witnesses’ subjective
beliefs that they and others had been terminated on account of age.
10
United Companies argues that these anecdotal accounts of
discrimination should have been excluded as incompetent to support
a claim of pattern or practice discrimination. We agree.
A trial judge’s ruling on the admissibility of evidence
is generally reviewed for an abuse of discretion. Mooney v. Aramco
Services Co., 54 F.3d 1207, 1220 (5th Cir. 1995). “We will not
reverse a district court's evidentiary rulings unless they are
erroneous and substantial prejudice results. The burden of proving
substantial prejudice lies with the party asserting error.” Id.,
quoting FDIC v. Mijalis, 15 F.3d 1314, 1318-19 (5th Cir. 1994).
Plaintiffs introduced anecdotal testimony from and about
former employees in an effort to show that United Companies, a
company of 2700 employees, had a “pattern or practice” of
discriminating against older workers. A “pattern or practice” of
discrimination does not consist of “isolated or sporadic
discriminatory acts by the employer.” Cooper v. Federal Reserve
Bank of Richmond, 467 U.S. 867, 875, 104 S.Ct. 2794, 2799, 81
L.Ed.2d 718 (1984). Rather, as the Supreme Court has explained,
“it must be established by a preponderance of the evidence that
‘[the impermissible] discrimination was the company’s standard
operating procedure -- the regular rather than the unusual
practice.” Cooper, 104 S.Ct. at 2799 (citations omitted). Often,
an illegal pattern and practice is revealed with statistical proof.
11
Anecdotes about other employees cannot establish that
discrimination was a company’s standard operating procedure unless
those employees are similarly situated to the plaintiff. Mooney,
54 F.3d at 1221. This court and others have held that testimony
from former employees who had different supervisors than the
plaintiff, who worked in different parts of the employer’s company,
or whose terminations were removed in time from the plaintiff’s
termination cannot be probative of whether age was a determinative
factor in the plaintiff’s discharge. See id.2
In this case, the plaintiffs’ anecdotal evidence did not
involve similarly situated employees. With regard to Wyvill, none
of the former employees who testified or who were testified about
worked in the Life Company. The Life Company was a separately
incorporated entity with different management independent from the
Lending Company. None of the former employee witnesses was
supervised by either Lindsay Seals or Gary Warrington, Wyvill’s
supervisors. None of the former employees was terminated under
2
Goff v. Continental Oil Co., 678 F.2d 593, 596-97 (5th Cir.
1982)(upholding the exclusion of testimony from former employees who did not work
with plaintiff and who had no personal knowledge of the events surrounding
plaintiff’s discharge); Swanson v. General Services Administration, 110 F.3d
1180, 1190 (5th Cir. 1997)(affirming the exclusion of testimony from witnesses
who did not work in plaintiff’s office where their anecdotal accounts of
discrimination were based on speculation.); Schrand v. Federal Pacific Electric
Co., 851 F.2d 152, 156 (6th Cir. 1988)(finding that testimony from former
employees who worked in different offices from plaintiff and under different
supervisors was irrelevant to plaintiff’s age discrimination claim).
12
circumstances similar to Wyvill’s. It is true that several of the
former employees could testify to their relationship with Bill
Spann, who participated in firing Wyvill. But this single
coincidence between Wyvill’s experience and that of the anecdotal
witnesses could not render them similarly situated.
Regarding Waldrop, none of the witnesses were branch
managers in the Lending Company and none had been supervised by
D.C. Brantley within a reasonable time of Waldrop’s termination in
1993. Jim Davis, for example, was a regional vice-president of the
Lending Company with duties that included supervision of sixty-five
branch offices. He reported to Joe Phillips, and he testified that
Phillips and Bill Spann terminated him after first demoting him to
branch manager. The stated reasons for Davis’s termination -- a
“lack of chemistry” and a failure to meet production quotas -- were
different from the explanation behind Waldrop’s discharge -- rude
and abusive conduct toward staff and customers. The only link
between Davis and Waldrop was the role of Joe Phillips in their
respective terminations, but this alone hardly furnishes a
probative guide to Waldrop’s experience with United Companies. It
would be particularly odd to view Phillips’s role as incriminating
the Lending Company since he, too, testified for Waldrop that he
was a victim of age discrimination.
Phillips was as dissimilar to Waldrop as Davis was,
making his testimony equally irrelevant. He held a different job,
13
regional vice-president, and he reported to a different supervisor,
Roger Clark. Witnesses Garold Cooke and Floyd Desormeaux were
likewise dissimilar to Waldrop. Cooke, who reported to Phillips,
was an area supervisor of seven branch offices in the Lending
Company, and Desormeaux was a vice-president of the Lending
Company. Although all these witnesses seem to have been similarly
situated among themselves as senior managers with United Companies,
nothing about their experiences connected with Waldrop. They held
different jobs than Waldrop, executed different duties, and were
accountable to different supervisors. We have excluded such
testimony in the past as irrelevant in supporting a “pattern or
practice” claim, and we must do so again here. See Mooney, 54 F.3d
at 1221.3
By admitting this evidence, the district court
substantially prejudiced United Companies, forcing it to respond to
each witness’s claims, and creating, in effect, several “trials
within a trial.” See Mooney, 54 F.3d at 1220-1221 (quoting the
district court’s opinion that anecdotal testimony forced the
defendant to litigate more than the claims actually set for trial).
3
For the same reasons, we find that the court abused its discretion
when, during closing argument, it allowed counsel for Wyvill and Waldrop to
recite the names of forty-four former employees and to claim that these employees
were victims of discrimination by United Companies. There was no evidence that
these employees were similarly situated to Wyvill and Waldrop, and there was
indeed no evidence, beyond counsel’s naked assertion, that these employees had
been discriminated against.
14
As we have seen, these mini-trials were not probative on the issue
of whether Waldrop or Wyvill faced discrimination. See Sims v.
Mulcahy, 902 F.2d 524, 531 (7th Cir. 1990)(holding that the
introduction of alleged discriminatory acts with no relation to the
discrimination claimed by the plaintiff creates “mini-trials” with
no probative value).
The prejudice worked by this testimony was all the
greater because of the mini-trials’ effectiveness. As noted above,
the anecdotal witnesses all held similar senior level positions
with the Lending Company and could be said to have been similarly
situated to one another. In addition to contending that they had
suffered from age discrimination, the witnesses claimed personal
knowledge of the events surrounding each other’s terminations.
Their testimony would have been relevant if they had been
plaintiffs, but they were not, and the fact that these witnesses
made each other’s case so well distracted attention from the fact
that they had little to say about Wyvill’s and Waldrop’s
terminations.4
Given the plaintiffs’ inability to offer any direct
evidence of age discrimination, this parade of anecdotal witnesses,
each recounting his own, entirely unrelated contention of age
4
In fact, Davis, Cooke, and Desormeaux all testified that they had no
personal knowledge of the circumstances surrounding the terminations of Wyvill
and Waldrop.
15
discrimination at the hands of the defendant, substantially
prejudiced United Companies. This evidence should have been
excluded, and we hold that the district court abused its discretion
in not doing so.
2. Age-Based Comments
Plaintiffs also relied on several age-related comments
made by United Companies CEO Terrell Brown, Sr. as proof that age-
bias motivated the terminations here. Former employee Jim Davis
testified that “[Brown, Sr.] felt that . . . the world had passed
[some of the older employees] by, that [the older employees] were
just too old to get the job done, and that we should either find
another position for them or terminate them.” Former employee Joe
Phillips testified that “in the early nineties, [Brown, Sr.] told
me that he wanted the company to be mean and lean, and he wanted to
go to a young, aggressive group of people.” Phillips further
testified that Brown, Sr. generally wanted to “get rid of the
people that were [currently employed at United Companies] so that
we can make more money, be more aggressive, more productive.”
Former employee Garold Cooke testified that Brown Sr. “wished [the
older men in corporate headquarters] would go away so that [Brown,
Sr.] could get some new blood in the company.”
Assuming, as plaintiffs allege, that Brown, Sr. was one
of the decision-makers in the terminations of Wyvill and Waldrop,
his “stray remarks” are insufficient to create an inference of age
16
discrimination.5 See, e.g., Waggoner v. City of Garland, 987 F.2d
1160, 1166 (5th Cir. 1993); Turner v. North American Rubber, Inc.,
979 F.2d 55, 59 (5th Cir. 1992). In order for an age-based comment
to be probative of an employer’s discriminatory intent, it must be
direct and unambiguous, allowing a reasonable jury to conclude
without any inferences or presumptions that age was a determinative
factor in the decision to terminate the employee. Equal Employment
Opportunity Commission v. Texas Instruments, Inc., 100 F.3d 1173,
1181 (5th Cir. 1996), citing Bodenheimer v. PPG Industries, Inc.,
5 F.3d 955, 958 (5th Cir. 1993). Brown’s remarks do not satisfy
this test. They are neither direct and unambiguous, nor were they
tied to a time frame relevant to this case. These remarks were not
probative on the ultimate question of age discrimination against
Waldrop and Wyvill.
3. Disparate Treatment Claim
In addition to anecdotal evidence concerning other
employees, Waldrop argued that he was treated more harshly than a
similarly-placed younger employee. Waldrop contrasted his fate
with that of Dwayne Burks, an area supervisor in North Carolina
5
Former employee Garold Cooke alleged that his supervisor, Mark
McKinney, repeatedly made age-related comments evidencing age-bias. But there
is no evidence that McKinney was a decision-maker with regard to the terminations
of Wyvill and Waldrop, and his attitude toward age is therefore irrelevant to
plaintiffs’ claims. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,
10 (1st Cir. 1990)(“The biases of one who neither makes nor influences the
challenged personnel decision are not probative in an employment discrimination
case.”).
17
until 1996, who was also guilty of abusive and rude conduct to
staff and employees but did not lose his job as a result. To
establish a claim of disparate treatment, Waldrop must show that
United Companies gave preferential treatment to a younger employee
under “nearly identical” circumstances. Little v. Republic
Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991), citing Smith
v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990)(per
curiam). Waldrop did show that Burks was younger (he was in his
thirties), that Burks was abusive and rude to United Companies
employees, and that there was significant employee turnover in the
offices supervised by Burks. He also proved that Burks was demoted
rather than fired for his misconduct.
But the striking differences between the two men’s
situations more than account for the different treatment they
received. To begin with, Burks held a different job than Waldrop.
Burks’s employment problems also differed from Waldrop’s. Though
he was similarly abusive to his staff, he did not antagonize his
immediate superior as Waldrop did. Most importantly, the decision-
makers who disciplined Waldrop differed from those who were charged
with deciding what action to take against Burks. Waldrop was
terminated by Spann and Phillips, while the decision to demote
Burks was taken by the current president of the Lending Company,
G.G. Hargon, in 1996. As a final point, there is even evidence
that Waldrop was treated better than Burks. Waldrop was given
18
several chances to correct his behavior, including a paid leave of
absence, after which he was allowed to return to his manager
position. Burks, however, was never given the opportunity to
return to his supervisor’s position after his demotion. The
circumstances surrounding the disciplining of Burks and Waldrop
thus fell short of “nearly identical,” and reasonable jurors could
not have justifiably believed otherwise.
4. Building a File
To show that United Companies’ stated reasons for firing
them were false, Wyvill and Waldrop alleged that United Companies
management ordered supervisors to “build a file” on older workers.
According to the plaintiffs, these files, documenting an employee’s
misdeeds and shortcomings, were used as a fig-leaf to cover any
illegal employment actions taken against the employee. As proof
that such files were “built” -- that is, created to provide cover
for age-motivated terminations and not in the regular course of
business -- plaintiffs alleged that United Companies supervisors
violated their own standard employee disciplinary procedures in
order to make sure the files contained as much damaging information
as possible.
Assuming that United Companies did not follow standard
procedures in compiling disciplinary records on Wyvill and Waldrop,
this Court has previously observed that
19
[p]roof that an employer did not follow
correct or standard procedures in the
termination or demotion of an employee may
well serve as the basis for a wrongful
discharge action under state law. As we have
stated, however, the ADEA was not created to
redress wrongful discharge simply because the
terminated worker was over the age of forty.
A discharge may well be unfair or even
unlawful and yet not be evidence of age bias
under the ADEA. To make out an ADEA claim,
the plaintiff must establish some nexus
between the employment actions taken by the
employer and the employee’s age. [A] bald
assertion that one exists . . . simply will
not suffice.
Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993), citing
Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 n. 6
(5th Cir. 1988). Here, plaintiffs put forth no evidence that would
create a nexus between United Companies’s file-building and the
plaintiffs’ ages. There was no evidence, for example, that United
Companies kept files only on older workers, or that it complied
with standard disciplinary procedures when filing reports on
younger workers but flouted them when it came to Wyvill and
Waldrop. Nor was there evidence that United Companies faithfully
recorded the disciplinary violations of younger workers but
fabricated those which, according to United Companies, motivated
the terminations of Wyvill and Waldrop. The act of maintaining
disciplinary files on employees, without more, is not illegal under
the ADEA. In the absence of any nexus between plaintiffs’
allegation of file-building and their ages, such assertions are
20
insufficient to create an inference that plaintiffs were fired on
account of age.
5. Additional Evidence of Age Discrimination
The remaining evidence introduced by plaintiffs might
have been sufficient to cast doubt on United Companies’ proffered
explanations for plaintiffs’ discharges, but it did nothing to
raise an inference that the real reasons for the discharges were
related to age. Plaintiffs put on extensive evidence that they
were well-qualified for their respective jobs and that they had
achieved considerable success. Waldrop introduced testimony that
Brantley, his supervisor, was difficult to work for and largely to
blame for his employment problems. Wyvill introduced evidence that
he was put up to his unauthorized phone calls by the CEO’s son,
Terrell Brown, Jr. But even assuming the truth of these
allegations, they allow at best an inference that United Companies’
proffered explanations for the discharges were false. This
evidence notably fails to connect the plaintiffs’ discharges to the
their ages, and it therefore does not permit an inference that age
was a motivating factor in the terminations.
In sum, neither Wyvill nor Waldrop produced sufficient
evidence to allow a reasonable jury to infer that United Companies
terminated them because of age. In Weisgram v. Marley Co., -- U.S.
--, 120 S.Ct. 1011 (2000), the Supreme Court affirmed the authority
of courts of appeals to direct the entry of judgment as a matter of
21
law in cases where, once erroneously admitted evidence is removed
from consideration, there remains insufficient evidence to support
the jury’s verdict. Weisgram, 120 S.Ct. at 1022. Accordingly,
finding that the properly admitted evidence in this case was
insufficient to support the jury’s verdict in favor of plaintiffs,
we vacate the district court’s judgment and remand for entry of
judgment in favor of United Companies.
III. CONCLUSION
For the foregoing reasons, the district court’s
judgment is VACATED and REMANDED for the entry of judgment as a
matter of law in favor of United Companies.
22