Court: Court of Appeals for the Tenth Circuit; August 1, 2006; Federal Appellate Court
In September 2001, Steve Jackson was terminated from his position at Westword, a Denver newspaper owned by NTMedia, due to a reduction in force (RIF). Jackson filed an age discrimination claim against NTMedia, alleging that his age was a determining factor in his termination. Before the trial, the district court excluded the testimony of a key witness, a former NT editor, citing irrelevance and potential prejudicial effects. At trial's conclusion, the court granted NT's Motion for Judgment as a Matter of Law, stating Jackson did not provide sufficient evidence to prove age discrimination. Jackson appealed, contending that the exclusion of his witness and the removal of his claims from jury consideration were errors. The court, exercising jurisdiction under 28 U.S.C. 1291, affirmed the district court's decisions.
Jackson began his employment with Westword in 1998 and was supervised by Patricia Calhoun. Despite being a skilled writer, he had a history of missed deadlines. At age 46, he was the oldest full-time feature writer at Westword when he was laid off without explanation or alternative options. NTMedia, which owned thirteen newspapers at the time, had implemented budget cuts and a wage freeze earlier in 2001 and decided to reduce feature stories per issue, leading to a decrease in feature writer positions. Lacey, the head of editorial staff, assigned the task of determining which positions to eliminate to Christine Brennan. After discussions with Lacey and Brennan, Calhoun decided to lay off Jackson and another writer, Todd Witcher. Following further instructions from Brennan, Calhoun also eliminated the part-time position of Eric Dexheimer, age 40.
Calhoun terminated Witcher’s employment, after which Witcher accepted a job offer from NT’s Kansas publication, unbeknownst to Calhoun during the Reduction in Force (RIF) decision. In December 2001, an additional position was identified for elimination, leading to the termination of James Hibberd, a 29-year-old feature writer who had recently transferred to Westword but had not yet begun his work there. Jackson filed an age discrimination lawsuit against NT on July 1, 2002, after pursuing administrative remedies with the Equal Opportunity Employment Commission. NT's motion for summary judgment was denied by the district court in October 2003.
Before trial, Jackson sought to present evidence of corporate age bias through Patty Epler, a former editor at NT’s Phoenix newspaper. NT's motion to exclude her testimony was initially denied but was later conditionally granted on January 24, 2005, citing a lack of relevance to Jackson's case and potential unfair prejudice under Federal Rule of Evidence 403. The court required Jackson to submit a written offer of proof, which he did, but his request for reconsideration was denied. After Jackson completed his evidence presentation, NT moved for judgment as a matter of law, which the district court granted, leading to this appeal.
On appeal, Jackson argues the trial court improperly assessed credibility and favored NT when granting judgment as a matter of law. He also contends that the exclusion of Epler’s testimony was erroneous, as it could demonstrate a corporate age bias influencing the RIF decisions. The appeal will be reviewed de novo, with the court considering the evidence in favor of Jackson without making credibility assessments. Evidence supporting NT will be acknowledged only if it comes from disinterested witnesses.
Judgment as a matter of law is contingent on several factors, including the robustness of the plaintiff's prima facie case, the evidentiary support against the employer's justification, and any relevant evidence backing the employer's claims. Once the case reaches the jury, the actual establishment of a prima facie case of age discrimination becomes less significant unless it affects the overall question of whether the plaintiff has presented credible evidence of the employer's discriminatory intent causing harm. In age discrimination cases involving a reduction in force (RIF), the plaintiff must demonstrate: (1) belonging to a protected age group (40 or older); (2) satisfactory job performance; (3) being discharged despite this performance; and (4) being treated less favorably than younger employees. It is acknowledged that Jackson meets the first two criteria, with the key dispute being whether he offered enough evidence to contest NT’s rationale for his layoff as merely a pretext for age discrimination.
Jackson argues the trial court improperly took on the jury's role by addressing factual disputes related to: (1) conflicting testimonies about input in the RIF decisions; (2) evidence that failure to meet deadlines typically did not warrant termination; (3) inconsistencies in testimony regarding knowledge of the financial reasons for the RIF; and (4) evidence suggesting preferential treatment of younger employees. He asserts that this cumulative evidence supports a reasonable inference that his layoff was motivated by age discrimination. Specifically, he highlights discrepancies in Calhoun’s pretrial affidavit regarding the involvement of Brennan and Lacey in the layoff decision compared to her trial testimony, suggesting that the jury should have determined their roles in Jackson's termination.
Calhoun testified that Lacey informed her of an impending change in newspaper format, leading to personnel reductions, and that Brennan provided the specifics on how many positions needed to be eliminated. Calhoun asserted she independently determined which feature writers would be laid off. During cross-examination, she clarified that while Lacey directed her to consult Brennan about the number of positions to cut, her decision-making regarding individual layoffs was solely hers. The trial court found that the evidence indicated local decision-making for the layoffs, rejecting Jackson's argument that Lacey or Brennan directed the terminations. The district court noted inconsistencies between Calhoun's affidavit and her trial testimony but determined these did not undermine her credibility, concluding that Jackson failed to provide evidence contradicting Calhoun's assertion that her decision to lay off Jackson was made independently. Thus, the court did not need to assess credibility to accept Calhoun’s testimony as valid.
Jackson contends that Calhoun's rationale for including him in the Reduction in Force (RIF) due to his deadline issues is a pretext for discrimination. He argues that inconsistencies in the employer's reasons allow for an inference of intentional discrimination, citing Whittington v. Nordam Group, Inc. Jackson acknowledges his history of missed deadlines, which he claims were managed under an arrangement with Calhoun, and points out that other writers also missed deadlines without facing termination. However, Calhoun's testimony indicates that Jackson's missed deadlines were significantly more frequent and severe than those of his peers. She noted that he was the only writer who missed submissions by weeks, whereas others typically missed by only days or hours. Consequently, the court found no need to weigh evidence since NT provided a legitimate business reason for including Jackson in the RIF.
Additionally, Jackson challenges Brennan's testimony regarding the financial necessity of the RIF post-September 11, claiming it suggests a cover-up for discriminatory intent. Brennan clarified that he had no input from Lacey regarding the layoffs and confirmed that the decision to reduce staff was made immediately following the September 11 events to adapt to a new one-feature format. This testimony is crucial in supporting NT's argument that the RIF was a business necessity rather than a discriminatory act.
Criteria communicated to local editors included a shift from a two-feature to a one-feature format due to economic challenges, necessitating staff reductions that varied by newspaper. The decision to downsize was influenced by a significant decline in national advertising revenue, which decreased by over 50% following the September 11, 2001 attacks. The testimony reveals that the financial officer informed the witness about national sales figures only a week before trial, suggesting a lack of awareness regarding the extent of financial difficulties at the time of layoffs. Although the witness relied on the CFO for information, the testimony did not indicate any pretextual motivation for layoffs based on age, as the witness was tasked with calculating layoffs in response to existing financial pressures. Jackson argued that favoritism towards younger employees was evident in hiring and transfer decisions, claiming he should not have been included in the layoffs while suggesting others, like James Hibberd, were more suitable candidates for the reduction in force (RIF). The record indicates no conflict in the witness's statements, and the evidence does not support the claim that the tragedy was exploited to eliminate older workers.
Younger writers were hired at Westword and other NT newspapers shortly before a Reduction in Force (RIF), raising suspicions of age discrimination. Jackson argues that these hires—Hibberd (29), Holthouse (30), and Buchanan (26)—suggest a plan to replace older writers. However, evidence shows these positions were open before the RIF was anticipated, and hiring decisions were made prior to knowledge of the RIF, which undermines claims of pretextuality. The law does not mandate layoffs based on seniority, and there is no evidence that the new hires received raises or that their hiring was discriminatory.
Jackson also claims favoritism toward Hibberd, noting Calhoun’s inconsistent testimony regarding his consideration for the RIF. Calhoun stated Hibberd was not considered because he hadn’t submitted his first feature story, yet later indicated he would be laid off upon completion of ongoing work. This testimony aligns and indicates Calhoun viewed Hibberd as the weakest writer by December. Jackson presented no substantive evidence of Hibberd's alleged ethical issues, relying instead on speculation. Additionally, Epler's testimony regarding concerns about Hibberd arose after the RIF and did not implicate Calhoun in a directive to lay off Jackson instead. Thus, no evidence supports the claim of age discrimination.
Jackson contends that the district court incorrectly disregarded evidence of employee transfers, including Todd Witcher from the Denver office, as indicative of age discrimination. Under the Age Discrimination in Employment Act (ADEA), an employer may face liability if it transfers other displaced employees but fails to offer a position to a plaintiff due to age. To establish a prima facie case of age discrimination, a plaintiff must show: 1) membership in a protected class; 2) qualification for available positions at termination; 3) lack of job offers for those positions; and 4) that similarly-situated employees outside the protected class received transfer opportunities.
Jackson failed to prove he was similarly situated to other employees who were transferred. Witcher's transfer was not influenced by Calhoun, who had already decided to eliminate his position before the transfer request was made. Melissa Hung's transfer is also irrelevant, as she voluntarily moved to fill an entry-level position, not as part of a reduction in force (RIF). Additionally, Bob Mehr, who was offered a transfer, did not present a similarly situated case to Jackson's due to the differences in their positions. Finally, Jackson's reference to Ms. Fantz's transfer is dismissed since it occurred alongside Ms. Eastman, with both transfers driven by operational needs rather than age considerations. The district court concluded that the evidence did not support an inference of age discrimination based on these transfers.
Jackson's numerous allegations of error lack substantial support. The district court found the reasons for Jackson's inclusion in the reduction in force (RIF) to be plausible. Jackson did not provide evidence of age bias, including a lack of proof that the decision was influenced by others, that Westword had a youth-oriented culture, or that younger employees were hired or transferred with age considerations in mind. The court emphasized that absent evidence of improper motives, it would not second-guess employer decisions. Jackson failed to counter NT's non-discriminatory reasons for his layoff, which were tied to financial difficulties requiring position eliminations and Jackson's consistent failure to meet deadlines.
Regarding the admissibility of testimony, the district court's decisions are reviewed for abuse of discretion. Jackson argued that the court improperly excluded Epler’s testimony, which he claimed was relevant to show corporate-wide age bias. He cited comments made by management suggesting a preference for younger employees. However, the court deemed Epler’s testimony irrelevant to the decision-making process that affected Jackson’s layoff. To establish a discriminatory motive, a plaintiff must demonstrate a connection between discriminatory remarks and the termination decision. Unrelated comments do not suffice to prove a discriminatory animus in termination cases.
Epler lacked knowledge of any discriminatory intent from Lacey, Brennan, or Van de Voorde toward Calhoun, who was the primary decision-maker in Jackson's termination. There is no evidence that Calhoun himself held any discriminatory views against Jackson. For a claim of pretext to succeed, any alleged bias from Lacey, Brennan, or Van de Voorde is relevant only if they influenced Calhoun's decision, as established in relevant case law. The evaluation of pretext centers on the decision-maker's genuine beliefs. Although corporate supervisors could have influenced Calhoun, there is no evidence that they did. Epler's testimony about comments made long after Jackson's termination fails to establish a connection to the decision made in Denver. Even if those comments had minor relevance, their potential for unfair prejudice outweighed their probative value. Testimony regarding events occurring years later is less relevant than evidence of prior misconduct, as the connection to the termination decision is weak. The district court correctly determined that Epler’s testimony was irrelevant to Jackson’s claims and affirmed its ruling. Additionally, while Calhoun founded and later sold Westword, evidence presented at trial indicated that decisions on layoffs involved Calhoun, Brennan, and Lacey. The testimony regarding the ages of potential candidates for layoffs is also noted.
Jackson claims that inconsistencies in the firing decision raise factual questions about who was responsible for his termination, making evidence of NT’s corporate practices pertinent to his case. He asserts that Calhoun's testimony is consistent, supported by prior depositions from both Calhoun and Brennan, which indicated that Brennan determined the number of positions to be cut and that local editors chose which positions to eliminate. In his opposition to NT’s summary judgment motion, Jackson stated as a fact that Brennan communicated the layoff numbers to editors and empowered them to decide which writers to lay off. He has not provided any subsequent evidence contradicting this assertion. While Epler mentioned an ageist comment by editor Kristi Dempsey before the September 2001 reduction in force (RIF), Dempsey did not influence the decisions in Phoenix or Denver; those were made by Lacey, who had direct involvement with the Phoenix publication.
