The Honorable Terry I. Adelman, United States Magistrate Judge for the

1

Eastern District of Missouri, sitting by consent of the parties.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3169

___________

Dorothy Curtis, *

*

Plaintiff/Appellee, *

* Appeal from the United States

District

v. * Court for the Eastern District of

* Missouri.

Electronics & Space Corporation, *

*

Defendant/Appellant. *

___________

Submitted: April 18, 1997

Filed: May 28, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, FAGG and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

A jury found that the Electronics & Space Corporation (ESC)

willfully discriminated against Dorothy Curtis on the basis of her age in

violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§

621-634 (1997), and awarded her back pay and liquidated damages. The

district court then added front pay and attorney fees. ESC appeals from 1

the judgments. We affirm. 
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Dorothy Curtis was fired from her job in the administrative services

department of ESC in 1991, when she was 63 years old. ESC was reducing

its workforce, and the manager of the department, Cathy Crosby, was asked

by the head of the department, David Taylor, to recommend employees for

termination. Crosby recommended Curtis who was was then laid off. Curtis

testified at trial that at the meeting in which she was told she was losing

her job, "Ms. Crosby told me that there was a decline in the work in my

area and I was going to be 64, [on] my birthday July the 5th, and it was

decided that I was going to be laid off because of my age." 

The jury found that ESC had willfully violated the ADEA and awarded

Curtis $33,380 for back pay, to which the district court added $33,380 in

liquidated damages. An evidentiary hearing on Curtis' request for

equitable relief was held after the jury trial and resulted in her

receiving $40,303 in front pay. She also was awarded attorney fees in an

amount lower than she sought. 

ESC appeals from the judgments and the denial of its motion for

judgment as a matter of law or, in the alternative, a new trial. ESC

presents three major arguments: there was insufficient evidence to support

the jury finding that it violated the ADEA, its conduct was not willful,

and the district court erred by awarding Curtis front pay.

I.

ESC contends that there was insufficient evidence to support a jury

verdict in Curtis' favor and that the court erred by not granting its

motion for judgment as a matter of law or a new trial. Curtis' testimony

that Crosby told her she was being terminated on account of her age should

not have been credited. ESC presented evidence that Curtis had told

another employee that she did not know why she had been fired and that her

contemporaneous notes of the meeting with Crosby did not mention age

discrimination. There was also testimony from another person who attended

the meeting at which Curtis was fired who said that age was not discussed.
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The standard of review of a denial of a motion for judgment as a

matter of law is de novo. Wiehoff v. GTE Directories Corp., 61 F.3d 588,

591 (8th Cir. 1995). The moving party must show that no reasonable juror

could have found for the opposing party. Newhouse v. McCormick & Co., 110

F.3d 635, 639 (8th Cir. 1997). All evidence is viewed in the light most

favorable to the verdict, and the winning side should receive the benefit

of all reasonable inferences. Ryther v. KARE 11, 108 F.3d 832, 844 (8th

Cir. 1997) (en banc), petition for cert. filed, 65 U.S.L.W. 3694 (U.S.

April 4, 1997) (No. 96-1571). The court should also assume that all

conflicts in the evidence were resolved in favor of the verdict and that

the prevailing party proved all the facts its evidence tended to prove.

Id. "Only when there is a complete absence of probative facts to support

the conclusion reached does a reversible error appear." Id. at 845

(quoting Lavender v. Kurn, 327 U.S. 645, 653 (1946)).

The district court did not err in denying the motion for judgment as

a matter of law. There was sufficient evidence to support a verdict in

favor of Curtis. Although there was evidence that challenged her

credibility, the court's role is not to reassess the credibility of the

witnesses. E.g., Fox v. T-H Continental Ltd. Partnership, 78 F.3d 409, 413

(8th Cir. 1996). The jury is free to credit or discredit testimony as it

believes appropriate, and it was up to it to decide whether Curtis was

telling the truth about Crosby's comments at the termination meeting.

Crosby was involved in the decision-making process that led to the

termination, and the statement attributed to her was direct evidence of

discriminatory animus in violation of the ADEA. See Stacks v. Southwestern

Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994). There was

evidence attacking Crosby's credibility as well, countering the reasons

given by ESC for the termination, and suggesting there was preferential

treatment of younger employees.

ESC also contends the district court erred by denying its motion for

a new trial since Curtis' testimony was unreliable and should not have been

credited and the verdict was a miscarriage of justice. Leichihman v.

Pickwick Int'l, 814 F.2d 1263,
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1267 (8th Cir. 1987). The denial of a new trial motion based on the

argument that the jury verdict was against the weight of evidence "is

virtually unassailable on appeal," however. Grogg v. Missouri Pac. R.R.

Co., 841 F.2d 210, 214 (8th Cir. 1988). The role of the trial court in

deciding such a motion does not include making its own assessment of

witness credibility, see McGee v. South Pemiscot Sch. Dist. R-V, 712 F.2d

339, 344 (8th Cir. 1983), and ESC has not shown the verdict was against the

weight of the evidence or that there was a miscarriage of justice. The

district court did not abuse its discretion in denying the motion for a new

trial.

II.

ESC argues there was insufficient evidence to support the jury's

conclusion that it willfully discriminated against Curtis on the basis of

her age. Liquidated damages should therefore not have been awarded. ESC

claims that Curtis offered no proof of willfulness and that it had

procedures in place to prevent willful violations of the ADEA. 

"A violation of the ADEA is willful if 'the employer either knew or

showed reckless disregard for the matter of whether its conduct was

prohibited by the statute.'" Nelson v. Boatmen's Bancshares, Inc., 26 F.3d

796, 803 (8th Cir. 1994)(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604,

617 (1993)). We review the jury's determination that ESC willfully

violated the ADEA under the same standard applied to its conclusion that

the ADEA was violated. Nelson, 26 F.3d at 803.

Examination of the evidence in the light most favorable to the verdict

shows there was evidence to support an inference Crosby knew that her

conduct was unlawful. She acknowledged that she had attended company

seminars at which she was told age discrimination was against company

policy, and there were ADEA posters at ESC that she would have seen. While

the existence of an ADEA poster in the workplace and evidence that the

decision-maker has been briefed on age discrimination
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may not individually support a finding of willfulness, see Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985); Glover v. McDonnell

Douglas Corp., 12 F.3d 845, 849 (8th Cir. 1993), such evidence can be

relevant on the issue. Here there was evidence that ESC intentionally

terminated Curtis on the basis of age, and the jury could find its

violation was willful since there was evidence that Curtis knew age

discrimination was unlawful. See Hazen Paper, 507 U.S. at 617 ("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.") ESC

has not argued that it mistakenly believed that it had made a legitimate

age-based decision under the ADEA. See id. at 616 (no liquidated damages

if employer in good faith and "nonrecklessly" believes its action was

permitted under the ADEA). 

ESC's reference to its policy designed to prevent age discrimination

does not insulate it from liability under the ADEA. The policy may have

been designed to ensure that its employees were not reckless in

disregarding the ADEA, and it may have often served that purpose, but if

Curtis' testimony is credited, the policy did not prevent Crosby from

discriminating on the basis of age. A company policy cannot shield an

employer from liability if one of its decision-makers willfully and

unlawfully discriminates against an employee on the basis of her age. See

Ryther v. KARE 11,864 F. Supp. 1510, 1520 (D. Minn. 1994), aff'd, 108 F.3d

832 (8th Cir. 1997) (en banc) (finding willful violation even though

company had policy against age discrimination).

III.

ESC challenges the district court's award of three years of front pay

to Curtis. ESC disputes Curtis' testimony that she could have worked to

age 70, and front pay should not have been awarded it says because her back

pay award was approximately
In its brief on appeal, ESC also suggested for the first time that the district court 2

should not have reached the question of front pay because "[f]ront pay is awarded only

as an alternative to reinstatement," and reinstatement was available here. It argues that

reinstatement is appropriate unless hostility between the parties makes it untenable and

that there was no evidence of hostility by the company towards Curtis. This argument

was not made to the district court and need not be considered for the first time on

appeal, e.g., Anderson v. Unisys Corp., 47 F.3d 302, 307 n.14 (8th Cir.), cert. denied,

116 S. Ct. 229 (1995), but in any event there was evidence of hostility between Crosby

and Curtis over the termination. See Williams v. Valentec Kisco, Inc., 964 F.2d 723,

729-30 (8th Cir. 1992) (request for reinstatement not required to obtain front pay; front

pay may be appropriate where there is hostility between the parties).

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the value of three years pay and fully compensated her since she would have

eventually lost her job in 1994 when further cuts were made.2

Curtis testified at the post trial hearing that she had intended to

work for ESC until she was 70. She introduced expert testimony that

calculated her future damages to be $42,768 (or about $14,000 per year) for

lost wages and benefits. ESC argued in response that there was

insufficient evidence she would have worked until age 70 or remained so

long at ESC. It also offered evidence that Curtis' position was eliminated

in May 1994 when the work was taken over by a part-time employee, that

thereafter there were no employees at her salary grade in her former

department, and that the department lost another job in February 1995. ESC

also contended that her skills were too limited to enable her to transfer

to a new assignment.

The ADEA provides the district court with discretion to order

equitable relief to compensate an injured person for what was lost because

of age discrimination. Williams v. Valentec Kisco, Inc., 964 F.2d 723, 730

(8th Cir. 1991). The plaintiff carries the initial burden to provide proof

of a basis for a front pay award, and the burden then shifts to the

defendant to prove it is inappropriate. Barbour v. Merrill, 48 F.3d 1270,

1280 (D.C. Cir. 1995), cert. granted, 116 S. Ct. 805, and cert. dismissed,

116 S. Ct. 1037 (1996); see Neufeld v. Searle Lab., 884 F.2d 335, 341 (8th

Cir. 1989)
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(former employer must present evidence to rebut presumption that employee

would work to normal retirement age); MacDissi v. Valmont Indus., Inc., 856

F.2d 1054, 1060 (8th Cir. 1988) (same). Determining front pay necessarily

involves uncertainty, and the district court has discretion in determining

an appropriate award; we review its decision for abuse of discretion. See

Newhouse v. McCormick & Co., 110 F.3d 635, 642 (8th Cir. 1997). Whether

an employee would have been fired even without unlawful discrimination is

a factual finding that is reviewed for clear error. See Nelson v.

Boatmen's Bancshares, Inc., 26 F.3d 796, 802 (8th Cir. 1994); Neufeld, 884

F.2d at 341. 

There may be a presumption that an employee will retire at a "normal"

retirement age, MacDissi, 856 F.2d at 1060, but such a presumption does not

control where there is evidence the employee would have worked beyond that

age. See Doyne v. Union Elec. Co., 953 F.2d 447, 451 (8th Cir. 1992)

(upholding factual finding that employee would retire at 70 rather than at

age permitted under the retirement plan). Curtis testified at the post

trial hearing that she was in good health and would have continued working

at ESC until she turned 70, and she had testified at trial that she had

been left with few resources when her husband died and that she continued

to look for a new job after she was fired by ESC. This evidence is

sufficient to support the finding that Curtis would not have retired before

age 70. See Nelson, 26 F.2d at 802 (evidence of employment search and no

evidence of poor health sufficient to support a finding that plaintiff

would have worked to the retirement date claimed). ESC did not present any

evidence that Curtis would have voluntarily left her job before age 70 had

she not been terminated. On this record the district court's factual

finding that she would have worked until age 70 was not clearly erroneous.

ESC argues that Curtis is not entitled to front pay because it

believes the jury found that she would have been terminated in June 1994.

ESC reaches this conclusion because the jury did not award the full amount

Curtis requested. Curtis sought $35,700 in back pay from September 1991

to the time of trial in August 1994, but the jury only
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awarded her $33,380. At the rate of pay she claimed, this would have

compensated her for lost wages to June 1994 says ESC. It presented

evidence at trial that there were fewer employees in Curtis' department in

June 1994 than in September 1991, and it believes the jury must have found

that Curtis would have lost her job as the department was pared back. 

The jury verdict does not control the district court's decision to

award front pay, and the question of front pay is for the court. See

Newhouse, 110 F.3d at 643. The ADEA limits "jury trials to factual issues

underlying claims for legal relief." Id. (quoting Dominic v. Consolidated

Edison Co., 822 F.2d 1249, 1257 (2d Cir. 1987)). The district court may

not reject jury findings "on issues properly submitted to the jury," but

it has discretion to consider all the circumstances involved in determining

appropriate equitable relief. Id. at 641. The jury was not instructed to

decide whether Curtis would have been terminated in June 1994, and it

returned a general verdict. Its thought process is not known. While an

award of back pay through the date of verdict establishes that an employee

would not have been discharged before then if it were not for age

discrimination, Neufeld, 884 F.2d 335, 341 (8th Cir. 1989), an award of

back pay less than requested does not necessarily mean the jury concluded

the plaintiff would have been terminated for nondiscriminatory reasons and

it does not therefore preclude front pay. Downes v. Volkswagen of Am.,

Inc., 41 F.3d 1132, 1143-44 (7th Cir. 1994).

The elimination of Curtis' former position does not necessarily mean

that front pay could not be awarded. The question is whether she would

have remained at ESC absent the discrimination; not whether her position

would have stayed the same. See Nelson, 26 F.3d at 802 (no abuse of

discretion to award front pay even though plaintiff's former position no

longer exists); MacDissi, 856 F.2d at 1060. There was evidence that the

tasks Curtis had done were continued by ESC employees after she was fired

and that she had performed a number of jobs within the company and could

have been capable of different work when the department was reduced. The

burden
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was on ESC to overcome the presumption that she would have remained with

the company but for the discrimination, and the district court's finding

was not clearly erroneous. 

In light of the facts found by the district court, including that

Curtis would not have been terminated absent the discrimination and that

she would have continued to work until she turned 70, it did not abuse its

discretion in awarding her front pay. 

IV.

In sum, there was sufficient evidence to support the jury verdict

that ESC willfully terminated Curtis in violation of the ADEA, and the

district court did not abuse its discretion in denying the motion for

judgment as a matter of law or for a new trial, and in awarding front pay.

Although ESC appealed from the award of attorney fees to Curtis as a

prevailing party, it did not challenge the amount or show that the district

court erred in the award. The judgments are therefore affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.