## The Honorable Terry I. Adelman, United States Magistrate Judge for th e 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 State s 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 discriminat ed against Dorothy Curtis on the basis of her age in violation of the Age Discrimination in Employmen t Act (ADEA), 29 U.S.C. §§ 621-634 (1 997), and awarded her back pay and liquidated damages. Th e district c ourt then added front pay and attorney fees. ESC appeals from 1 the judgments. We affirm.

## -2- Dorothy Curtis was fired from her jo b in the administrative services department of ESC in 1991, when she was 63 years old. ESC was reducing its workforce, and th e manager of the department, Cathy Crosby, was asked by the head of the department, David Taylor, to recommend employees fo r termination. Crosby r ecommended Curtis who was was then laid off. Curtis testified at trial that at the meeting in which she was told she was losin g her job, "Ms. Crosby told me that there was a decline in the work in m y
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 willfull y violated the ADEA and awarded Curtis $33,380 for back pay, to which the distri ct court added $33,380 in liquid ated damages. An evidentiary hearing on Curtis' request fo r equ itable relief was held after the jury trial and resulted in he r receiving $40,303 in front pay. She also was a warded attorney fees in an amount lower than she sought.

ESC appeals from the judgments and the denial of its motion fo r jud gment as a matter of law or, in the alternative, a new trial. ES C presents three major arguments: there was insufficient evidence to suppor t 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 conte nds that there was insufficient evidence to support a jury

ver dict in Curtis' favor and that the court erred by not granting it s motion for judgment a s 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 tol d another employee that she did not know why she had been fired and that he r contempora neous notes of the meeting with Crosby did not mention ag e discrimination. There was also testimony from a nother person who attended the meeting at which Curtis was fired who said t hat age was not discussed.

## -3- The standard of review of a denial of a motion for judgment as a matter of law is de n ovo. 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. Newhou se v. McCormick & Co. , 110 F.3d 635, 639 (8th Cir. 1997). All evidence is viewed in the light most favorable to the verd ict, 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 al l 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 concl usion reached does a reversible error appear." Id. at 84 5 (quoting Lavender v. Kurn , 327 U.S. 645, 653 (1946)).

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

a matte r of law. There was sufficient evidence to support a verdict i n favor of Curtis. Although there was evidence that challenged he r credibility, the court's role is not to reassess the credibility of th e witnesses. E.g. , Fox v. T-H Continental Ltd. Partnership , 78 F.3d 409, 41 3 (8th Cir. 1996). The jury is free to credit or discredit testimony as it believe s appropriate, and it was up to it to decide whether Curtis wa s tellin g the truth about Crosby's comments at the termination meeting

. Crosby w as involved in the decision-making process that led to th e ter mination, and the statement attributed to her was direct evidence o f discriminatory animus in violation of the ADEA. See Stacks v. Southwester n Bell Ye llow Pages, Inc. , 27 F.3d 1316, 1323 (8th Cir. 1994). There wa s evidence attacking Crosby's credibility as well, countering the reason s giv en by ESC for the termination, and suggesting there was preferentia l 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 bee n credited a nd the verdict was a miscarriage of justice. Leichihman v

. Pickwick Int'l , 814 F.2d 1263,

## -4-

12 67 (8th Cir. 1987). The denial of a new trial motion based on th e argument t hat the jury verdict was against the weight of evidence "i s 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 i n deci ding such a motion does not include making its own assessment o f 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 th e weight of the evidence or that there was a miscarriage of justice. Th e district court did not abuse its discretion in denying the motion for a ne w trial.

II.

ESC argues there was insufficient evidence to support the jury' s conclusion that it willfully discriminated agai nst Curtis on the basis of her age. Liquidated damages should therefore not have been awarded. ESC cla ims that Curtis offered no proof of willfulness and that it ha d procedures in place to prevent willful violations of the ADEA.

"A violat ion of the ADEA is willful if 'the employer either knew or showed reckless disregard for the matter of whether its conduct wa s prohibited by the statute.'" Nelson v. Boatmen's Bancshares, Inc. , 26 F.3 d 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 willfull y 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 t he verdict shows there was evidence to support an inference Crosby knew that he r conduct was unlawful. She acknowledged that she had attended compan y seminar s at which she was told age discrimination was against compan y policy, and there were ADEA posters at ESC th at she would have seen. While the ex istence of an ADEA poster in the workplace and evidence that th e decision-maker has been briefed on age discrimination

## -5-

may not individually support a finding of willfulness, see Trans Worl d Airlines, Inc. v. Thu rston , 469 U.S. 111, 128 (1985); Glover v. McDonnell Dou glas Corp. , 12 F.3d 845, 849 (8th Cir. 1993), such evidence can b e relev ant on the issue. Here there was evidence that ESC intentionall y terminated Curtis on the basis of age, and the jury could find it s violation was willful since there was evidence that Curtis knew ag e discrimination was un lawful. See Hazen Paper , 507 U.S. at 617 ("It would be a wholly circular and self-defeating interpre tation of the ADEA to hold that, in cases where an employer more likely knows its conduct to b e 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 un der the ADEA. See id. at 616 (no liquidated damages if empl oyer in good faith and "nonrecklessly" believes its action wa s permitted under the ADEA).

ESC's reference to its policy design ed to prevent age discrimination does not insulate it from liability under the ADEA. The policy may have been desi gned to ensure that its employees were not reckless i n disregarding the ADEA , and it may have often served that purpose, but if Curtis' testimony is credited, the policy did not prevent Crosby fro m discriminating on the basis of age. A company policy cannot shield a n employ er from liability if one of its decision-makers willfully an d unlawfully discriminates against an employee on the basis of her age. See Ryther v. KARE 11 ,864 F. Supp. 1510, 1520 (D. Mi nn. 1994), aff'd , 108 F.3d 832 (8th Cir. 1997) (en banc) (finding willful violation even thoug h company had policy against age discrimination).

III.
ESC challenges the district court's award of three years of fro nt 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 bac k 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 betwee n the parties makes it untenable and that there was no evidence of hosti lity by the company towards Curtis. This argument
was not made to the district court and need not be considered for the first time o n appeal, e.g. , Anderson v. Unisys Corp. , 47 F.3 d 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).
-6- the value of three years pay and fully compensated her since she would hav e eventually lost her job in 1994 when further cuts were made. 2

Curtis te stified at the post trial hearing that she had intended to work f or ESC until she was 70. She introduced expert testimony tha t calculated her future damages to be $42,768 (or about $14,000 per year) fo r lost wa ges and benefits. ESC argued in response that there wa s insufficient evidence she would have worked until age 70 or remained s o long at ESC. It also offered evidence that Curtis' position was eliminate d in May 1 994 when the work was taken over by a part-time employee, tha t ther eafter there were no employees at her salary grade in her forme r department, and that the department lost another job in February 1995. ES C also contended that h er skills were too limited to enable her to transfer to a new assignment.

The ADEA provides the district court with discretion to orde r equitable relief to compensate an injured person for what was lost because of age discrimination. Williams v. Valentec Kisco, Inc. , 964 F.2d 723, 73 0 (8th Cir. 1991). The plaintiff carries the initial burden to provide proo f of a basis for a front pay award, and the burden then shifts to th e 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 (8t h Cir. 1989)

## -7-

(former employer must present evidence to rebut presumption that employee would work to normal retirement age); MacDissi v. Valmont Indus., Inc. , 85 6 F.2d 1054, 1060 (8th Cir. 1988) (same). Determi ning 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 hav e 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 (8t h Cir. 1994); Neufeld , 884 F.2d at 341.
There may be a presumption that an employee will retire at a "n ormal" retirement age, MacDissi , 856 F.2d at 1060, but such a presumption does no t control where there is evidence the employee wou ld 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 r etire at 70 rather than at age permitted under the retirement plan). Curtis testified at the pos t trial hearing that she was in good health and wo uld have continued working at ES C until she turned 70, and she had testified at trial that she ha d been left with few re sources when her husband died and that she continued to loo k for a new job after she was fired by ESC. This evidence i s sufficient to support the finding that Curtis would not have retired befor e 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 plaintif f would have worked to the retirement date claimed). ESC did not present an y evidence that Curtis would have voluntarily left her job before age 70 had she not be en terminated. On this record the district court's factua l finding that she would have worked until age 70 was not clearly erroneous.

ESC a rgues that Curtis is not entitled to front pay because i t believes the jury fou nd 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

## -8-

awarded h er $33,380. At the rate of pay she claimed, this would hav e compensat ed her for lost wages to June 1994 says ESC. It presente d evidence at trial that there were fewer employee s in Curtis' department in June 1994 than in September 1991, and it believe s 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 t o award fron t pay, and the question of front pay is for the court. Se e Newhouse , 110 F.3d at 643. The ADEA limits "jur y trials to factual issues underlying claims for legal relief." Id. (quoti ng 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 determinin g appropriate equitable relief. Id. at 641. The jury was not instructed to decide whe ther Curtis would have been terminated in June 1994, and i t returned a general verdict. Its thought process is not known. While a n award of back pay through the date of verdict es tablishes that an employee

wou ld not have been discharged before then if it were not for ag e discrimination, Neufeld , 884 F.2d 335, 341 (8th Cir. 1989), an award o f back pay less than re quested does not necessarily mean the jury concluded the plaintiff would have been terminated for non discriminatory reasons and it does n ot therefore preclude front pay. Downes v. Volkswagen of Am. , Inc. , 41 F.3d 1132, 1143-44 (7th Cir. 1994).

The elimination of Curtis' former po sition does not necessarily mean that fr ont pay could not be awarded. The question is whether she woul d have remained at ESC absent the discrimination; not whether her position

wo uld have stayed the same. See Nelson , 26 F.3d at 802 (no abuse o f 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. Th e burden

## -9-

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 tha t Curtis would not have been terminated absent the discrimination and that she would have continued to work until she turne d 70, it did not abuse its discretion in awarding her front pay.

IV.

In su m, there was sufficient evidence to support the jury verdic t that ESC willfully terminated Curtis in violation of the ADEA, and th e district c ourt did not abuse its discretion in denying the motion fo r judgment as a matter of law or for a new trial, and in awarding front pay. Althou gh ESC appealed from the award of attorney fees to Curtis as a prevailing party, it did not challenge the amount or show that the distric t court erred in the award. The judgments are therefore affirmed.

A true copy.

Attest:

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