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February 29, 1984


The opinion of the court was delivered by: PARKER

PARKER, District Judge:

 -- Frederick C. Stacey charged the Allied Stores Corporation ("Allied" or "Allied Stores") with violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. Following a four-day trial, the jury rendered a plaintiff's verdict and found that Allied willfully violated the ADEA, when in May 1982 it terminated Stacey's employment as corporate security officer and did not select him for other positions in Allied's organization. Counsel for the parties stipulated that the amount of damages on the liability issue would be submitted later for determination by the Court.

 At the conclusion of the plaintiff's case in chief, and later, after completion and presentation of all testimony and evidence, Allied moved for a directed verdict. Rule 50(a) Fed. R. Civ. P. On each occasion the Court expressed serious doubt as to the strength and substance of the plaintiff's claims. Accordingly, the defendant's motions were denied without prejudice and a final decision was reserved pending the jury's finding on the merits. The jury returned a verdict for the plaintiff and a judgment was duly entered. Thereafter, Allied moved to set aside the verdict and the accompanying judgment, and to have judgment entered in accordance with its motion for a directed verdict, Rule 50(b) Fed. R. Civ. P., or, in the alternative, to grant a new trial, Rule 59(a) and (b) Fed. R. Civ. P.

 For the reasons set forth below the Court determines that the defendant's Rule 50(b) motion should be granted and Allied should be granted judgment notwithstanding the verdict.


 Allied must shoulder a heavy burden to be granted judgment notwithstanding the verdict. The standard of review is high. Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 34 FEP Cases 25, 727 F.2d 1225 (D.C. Cir. 1984). In Vander Zee v. Karabatsos, 191 U.S. App. D.C. 200, 589 F.2d 723, 726 (D.C. Cir. 1978), cert. denied, 441 U.S. 962, 60 L. Ed. 2d 1066, 99 S. Ct. 2407 (1979), our Circuit Court reiterated a long-recognized principle that a motion for judgment notwithstanding the verdict "should not be granted unless the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict." See also Metrocare v. Washington Metropolitan Area Transit Authority, 220 U.S. App. D.C. 104, 679 F.2d 922, 924-25, 28 FEP Cases 1585 (D.C. Cir. 1982). Such a motion is merely the renewal of a Rule 50(a) motion for a directed verdict and the applicable standard is the same as when awarding a directed verdict. 9 C. Wright & A. Miller, Federal Practice and Procedures § 2530 at 574 (1971); Lester v. Dunn, 154 U.S. App. D.C. 399, 475 F.2d 983, 985 (D.C. Cir. 1973). A jury verdict based on surmise, conjecture and a mere scintilla of evidence may not withstand a motion for judgment notwithstanding the verdict. Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167-68 (2d Cir. 1980); Tackett v. Kidder, 616 F.2d 1050, 1053 (8th Cir. 1980). In granting the defendant's motion, all of the evidence offered by the parties has been considered. At the same time, however, the Court is mindful that it should not invade the province of the jury, attempt to assess witness credibility, or weigh the evidence. Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342, 32 FEP Cases 843 (D.C. Cir. 1983). After employing those criteria, this Court determines that Allied Stores is entitled to the relief it seeks.


 The Age Discrimination in Employment Act proscribes an employer from discharging or otherwise discriminating against an employee. Section 623(a)(1) provides:

It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge . . . or . . . discriminate against any individual with respect to his . . . employment, because of such individual's age.

 The statute proscribes only one reason for discharge -- age. For the plaintiff Stacey to prevail, "he [has] to prove by a preponderance of the evidence that his age was the 'determining factor' in his discharge in the sense that, 'but for' his employer's motive to discriminate against him because of age, he would not have been discharged." Loeb v. Textron, Inc., 600 F.2d 1003, 1019, 20 FEP Cases 29 (1st Cir. 1979).

 The framework and procedure by which a plaintiff establishes his right to relief in a Title VII discrimination proceeding, United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 1481, 31 FEP Cases 609, 75 L. Ed. 2d 403 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 25 FEP Cases 113, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) are applicable in an age discrimination claim. Loeb v. Textron, 600 F.2d 1003. Beyond this, and more particularly, the relevant inquiry in such a case, "is whether the plaintiff has produced evidence from which a trier of fact might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 562, 32 FEP Cases 1451 (5th Cir. 1983).


 The plaintiff Stacey was employed by Garfinckel, Brooks Brothers, Miller & Rhoads (GBM) from May 1977 to November 1981. He served as GBM's corporate security officer; his office was located in Washington, D.C., at the headquarters corporate office. In August 1981 Allied Stores began negotiations to acquire GBM. By November 1981 the GBM shareholders approved a transaction, where by GBM merged into and with a subsidiary of Allied Stores, ASC Stores III. Stacey continued with the Allied subsidiary until May 1982, when he was terminated. (Trial Transcript (T.T.) 100 (23-14).)

 Allied Stores advanced two major reasons why Stacey was terminated; both were legitimate business nondiscriminatory decisions. First, when Allied acquired GBM it made a business decision to close GBM's headquarters office in Washington, D.C. Allied had no need for the D.C. office since positions there -- including plaintiffs' -- were duplicative, unnecessary, and were already performed by Allied personnel located and employed in its New York office. Second, audits and investigations undertaken by Allied revealed deficiencies and ...

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