UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 91-8271

FLAVIO O. RAMIREZ,

Plaintiff-Appellee,

VERSUS

ALLRIGHT PARKING EL PASO, INC.,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

(July 7, 1992)

Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Allright Parking El Paso (Allright) appeals a $234,343.55

judgment entered after a jury verdict finding it liable to Flavio

Ramirez (Ramirez) for age discriminat i on under the Age

Discrimination in Employment Act (ADEA) and for intentional

infliction of emotional distress under Texas law. Allright

challenges the denial of its motions for a direct ed verdict,

judgment notwithstanding the verdict (JNOV), and new trial based on

the sufficiency of the evidence. We affirm the jury's verdict

regarding the AD EA claim, but finding the evidence insufficient2

reverse their verdict r e garding the intentional infliction of

emotional distress claim.

I. FACTS

Because Allrigh t is challenging the sufficiency of the

evidence we will recite the facts in the light most favorable to

Ramirez. Allright employed Ramirez from 1961 until 1989. Over

that time, he received several promotions, which culminated in his

promotion to general manager of Allright's El Paso op erations in

1986. As general manager, Ramirez reported to Aaron Hardgrave

(Hardgrave), who was president of Allright's El Paso operations.

In 1988, Allright promoted Kevin Matocha (Matocha), who was 22

years of age, to Regional Vice President. Shortly after Matocha's

promotion, Hardgrave retired, and Allright replaced him with George

Corse (Corse), who was 27 years of age. Ramirez remained the

general manager and reported to Corse. After Corse took over, he

called Ramirez into h is office and told him that he had two more

years with the company and then they were going to retire him. In

January of 1989, Allright fired Ramirez and hired Scott Tinley, who

was 22 years of age, as his replacement. At the time Allright

fired Ramirez, he had no warnings or reprimands in his personnel

file, and just two months prior had received a pay raise. After

his firing, Ramirez and his son requested a meeting with Matocha,

at which Ramirez's son asked Matocha if he was aware of the ADEA in

order to let him know that there were other options a vailable if

the matter could not be settled. As a result of the meeting,1 Ramirez's "old salary" was the bimonthly salary of $585

that he was receiving prior to his November, 1988 pay raise.

3 Allright agreed that it would hire Ramirez back in a supervisory

capacity and at his "old salary." 1

On January 23, 1989, Allright reinstat ed Ramirez as a

sup ervisor, but with a loss of seniority and at salary of $538

bimonthly rather than $585 as was agreed too by the parties.

Shortly after he was reinstated, Allright demoted Ramirez to duty

as a parking lot attendant, where it required him to work longer

hours than the other attendants and work more weekends than the

other supervisors. In September 1989, Tinley approached Ramirez

and told him that he was switchin g him to an hourly wage and

requiring him to punch a time clock. Ramirez refused to accept the

hourly wage or punching a time clock, and Tinley fired him.

II. PROCEDURAL HISTORY

In October 1990, Ramirez sued Allright in state court alleging

that it violated the ADEA and various state tort laws. Allright

removed the case to the United States District Court for the

Western District Court of Texas. At trial, Allright moved for and

the district court granted a directed verdict on all the pendant

state claims, however, later it partially withdrew its ruling and

permitted Ramirez to proceed with his ADEA claim and his

intentional infliction of emotional distress claim. The jury

found for Ramirez on both claims, awarding him $23,760 in back pay

and $23,760 in liquidated damages on his ADEA claim, and $300,000

in mental anguish damages on his emotional distress claim. After4

the jury's verdict, the district court ente red judgment for

$347,520. Allright filed a motion for JNOV and, in the

alternative, a motion for new trial and motion for remittitur. The

district court denied Allright's motion for JNOV and motion for new

trial con ditioned upon Ramirez filing a remittitur for $200,000.

Additionally, the district court awarded Ramirez front pay of

$62,362, attorneys' fees of $20,387, and costs of $4,074. Ramirez

filed a remittitur for $200,000, and on May 17, 1991, the district

court vacated its prior judgment and entered judgment for Ramirez

for $234,343.55. Allright appeals that judgment.

III. DISCUSSION

Allright contends that its motions for directed verdict, JNOV,

and new trial were improperly denied because there was insufficient

evidence for the jury to find that it inte ntionally inflicted

emotional distress upon Ramirez or that it discri minated against

him based on his age in v iolation of the ADEA. When reviewing

motions for directed verdict and JNOV:

[T]he Court should consider all of the evidence-not just

that evidence which supports the non-mover's case-but in

the light and with all reasonable i nferences most

favorably to the party opposed to the motion. If the

facts and inferences point so strongly and overwhelmingly

in favor of one party that the Co urt believes that

reasonable men could not arri ve at a contrary verdict,

granting of the motion is proper. On the other hand, if

there is substantial evidence opposed to the motions,

that is, evidence of such quality and weig ht that

reasonable and fair minded men in the exerc ise of

impartial judgment might reach different conclusions, the

motions should be denied, and the case submitted to the

jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc).

A motion for new trial is reviewed under a different standard, and5

will not be overturned unless there is a clear showing of an abuse

of discretion. R eeves v. Gen eral Foods Corp., 682 F.2d 515, 519

(5th Cir. 1982).

A. Intentional Infliction of Emotional Distress Claim

Under T exas law, the tort of intentional infliction of

emotional distress consists of four elements: (1) the defendant

acted intentionally or recklessly; (2) the defendant's conduct was

extreme and outrageous; (3) the defendant's action caused the

plaintiff emotional distress; and (4) the emotional d istress

suffered by the plaintiff was severe. D ean v. Ford Motor Cre dit

Co.

, 885 F.2d 300, 306 (5th Cir. 1989) (citing Tidelands Auto Club

v. Walters

, 699 S.W.2d 939, 942 (Tex. App.-Beaumont, 1985, writ

ref'd n.r.e.).

Allright contends that there is insufficient evidence to

support the jury' s finding that its actions toward Ramirez were

extreme and outrageous, which is an essential element of Ramirez's

claim. This court recently defined what is extreme and outrageous

conduct in Dean v Ford Motor Credit Co., 885 F.2d 300 (5th Cir.

1989), where it stated:

liability for [outrageous] conduct has been found only

where the conduct has been so out rageous in character,

and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community

. . . . Generally, the case is one in which a recitation of the

facts to an a verage member of the community would lead

him to exclaim, "Outrageous."

Dean (citing Restatement (Second) Torts Section 46, Comment d.) at

306.6

To support his position that Allright's actions rise to that

level, Ramirez cites to the recent decision of this court in Wilson

v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991). In W ilson, an

elderly employee sued his employer for violation of the ADEA and

for intentional infliction of emotional distress under Texas law.

The evidence produced by the employee at trial showed that: (1) his

employer assigned his duties to a younger person; (2) the company

president refused to speak to him in the hallways so as to harass

him; (3) the company's long range plans expressed a desire to move

younger people into sales and management positions; (4) the

company's president wanted to rep lace him with a younger person;

(5) other mangers would not work with him; (6) he did not receive

his work assignments directly from the co mpany president; (7) he

was not offered a fully guaranteed salary to transfer; (8) his

employer demoted himto the position of entry level warehouse

supervisor; (9) his supervisors referred to him as old; (10) his

immediate supervisor prepared a sign stating "Wilson is old," and

"Wilson is a goldbrick"; and (11) the company filed a counterclaim

against him.

The court found that all of the employer's above listed

actions w ere within the realm of an ordinary employment dispute,

and, in the context of the employment milieu, were not so extreme

and outrageous to be properly addressed outside of the plaintiff's

ADEA claim. W ilson at 1145. The court stated that "what takes

this case out of the realm of an ordinary employment dispute is the

degrading and humiliating way tha t [the plaintiff] . . . was2 Wilson spent 75% of his time performing these janitorial

type duties.

7 stripped of his duties and demoted from an executive manager to an

entry level warehouse supervisor with menial and demeaning duties."

Id. The evidence in W ilson showed that the employer transferred

the plaintiff, who was the former vice-president and assistant to

the president, to the warehouse where his primary duties were

housekeeping chores, mainly sweeping the warehouse and cleaning up

after the other employees in the warehouse cafeteria after lunch. 2

The court simply held that the employer's intentional and

systematic actions to hum iliate the plaintiff, who had a college

education and 30 years of executive experience, by requiring him to

do menial, janitorial duties was extreme and outrageous. W ilson at

1145.

In the present case, in contrast to the facts in Wilson

, there

is nothing elevating Allright's actions above those involved in an

"ordinary employment dispute," and into the realmof extreme and

outrageous, which is what Texas law requires to state a claim for

intentional infliction of emotional distress. In support of his

claim that Allright's actions were extreme and outrageous, Ramirez

points to the following facts: (1) Allright replaced Ramirez with

Tinley, who was 22 years of age; (2) Matocha advised Ramirez's son

that Ramirez was a good worker, but that Matocha needed younger,

more energetic employees; (3) Ramirez lost his seniority; (4)

Matocha agreed to rehire Ramirez as a supervisor at his same

salary, but in spite of that agreement, Matocha placed Ramirez as8

a parking lot attendant and at a reduced salary; (6) Ramirez was

r equired to take orders from employees that he had previously

supervised; (7) Ramirez was required to work more hours than the

other attendants and more weekends than the other supervisors; (8)

Tinley told Ramirez that he would be put on an hourly wage and

required to punch a time clock; and (9) Tinley fired Ramirez after

he refused to punch a time clock, and after he refused to accept an

hourly position.

Those actions by Allright, wh ile perhaps illegal and

discriminatory, are insufficient to support a finding of extreme

and outrageous conduct under Texas law because Allright did not

subject Ramirez to the intentional and systematic degradation and

humiliation that was present in Wilson

. The evidence in the

present case shows that although Allright demoted Ramirez to a

parking lot attendant, he continued to receive a supervisor's

salary and continued to wear his uniform designating him as a

supervisor. Also significant is that the duties (parking cars)

Allright required of Ramirez were basic duties that all parking lot

attendants were required to perform and were duties typical of the

primary busin ess of Allright, whereas, in W ilson the janitorial

duties that the employer required of the plaintiff were not basic

duties that all entry level supervisors were required to perform

and were not typical of the primary business of the employer. In

addition, the duties that Allright required Ramirez to do as an

attendant were not menial or deme aning, but were duties that

Allright required its other supervisors to do on occasion, and,3 In D ean

, this court found that the following conduct was

insufficient t o support a finding of extreme and outrageous

conduct, which is necessary to support a claim for intentional

i nfliction of emotional distress: (1) the employer told the

plaintiff that "women d on't usually go in that department," when

she expressed interest in transferring to a higher paying position

in the collection department; (2) the employer denied the plaintiff

a transfer to the collec tion department, and instead selected a

l ess qualified man; (3) the employer's attitude toward th e plaintiff changed after she complained about discriminatory

tre atment; (4) the employer begin to transfer the plaintiff from

desk to desk; (5) a co-worker testified that she believed the

employer "was trying to set

... [the plaintiff] up;" (6) the

employer required the plaintiff to do more work than the other

clerks and subjected her to unfair harassment; and (7) the employer

used special annual reviews (that only the plaintiff received) to

downgrade her performance. Dean at 303-04.

9 indeed, were duties that Allright had often called upon Ramirez to

do himself before his demotion. As noted by this court in W ilson

,

"except in the most unusual cases . . . [an employer's creation

of unpleasant and onerous work conditions] is not the sort of

conduct, as deplorable as it may sometimes be, that constitutes

extreme and outrageous conduct." Wilson at 1143.

In a final argument, Ra mirez contends that this court's

holding in Dean supports his claim. In D ean

, the plaintiff's

employer subjected the plainti ff to a litany of offensive and

discriminatory acts that this court held were insufficient to

support a finding of extreme and outrageous conduct. 3 The act of

the employer that this court held took the case from the realm of

an ord inary employment dispute and into the realm of outrageous

conduct was that the supervisor of the employee intentionally

placed checks in the employee's purse to make it appear that she

was a thief, or to put her in fear of being charged criminally for

theft. D ean

, at 307. In the present case, Allright is not guilty10

of that type of reprehensible conduct, which the court classified

a s passing the "bounds of conduct that will be tolerated by a

civilized society

. . . . " D ean at 307. Simply put, the actions

of Allright do not rise to the level of extreme and outrageous

behavior that Texas law and our prior interpretations of Texas law

in Wilson and Dean require to support a claim for intentional

infliction of emotional distress

.

B. Age Discrimination in Employment Act Claim

Allright next contends that the district court improperly

denied its motions for directed v erdict, JNOV, and new trial

because there was insufficient evidence for the jury to find that

it discriminated against Ramirez based on his age in violation of

the ADEA. This court laid out the evidentiary procedure for

analyzing an age discrimination claim under the ADEA in Bienkowski

v. American Airlines,Inc., 851 F.2d 1503 (5th Cir. 1988). In

Bienkowski , the court stated:

First the plaintiff must prove a prima facie case of age discrimination . . . . If the plaintiff succeeds, the

burden of production shifts to the defendant to rebut the

presumption of discrimination created by the prima facie

case by articulating a legitimate, nondiscriminatory

reason for its disparate treatmen t of the plaintiff.

Finally, the plaintiff must prove tha t the defendant's

reasons are pretexts for unlawful discrimination either

by showing that a discriminat o ry reason more likely

motivated the defendant or by showing that the

defendant's reason is unworthy of credence.

Bienkowski, 851 F.2d at 1504-05.

In the present case, Ramirez made out a prima facie case for

age discrimination by producing evidence that at the time Allright

fired him: (1) he was 58 years old; (2) he had worked for 28 years11

with Allright and had received favorable reviews; and (3) Allright

replaced him with Tinley, who was 22 years of age and had less than

two years of experience in the parking lot business. See Deloach

v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir. 1990). Once

Ramirez made out his prima facie case, the burden shifted to

Allright to articulate a legitimate nondiscri minatory reason for

firing him. Allright argued at trial that they fired Ramirez for

poor job performance, not because of his age. The jury did not

believe Allright, and found th at its stated reason for firing

R amirez was merely a pretext for unlawful discrimination. There

was sufficient evidence for the jury to reject Allright's

explanation as shown by the prev iously delineated facts and the

statements of Corse and Matocha, which included Corse's statement

that he and Matocha were going to "retire the older employees," and

Mat ocha's statement that he considered Ramirez to be "less

energetic" and "less motivated" than the other employees. As this

court said in Wilson :

The jury he ard both sides and the jury spoke. That is

about all there is to say about a ge discrimination

liability in this case. There were clearly two sides to

this case. The jury believed . . . [the plaintiff] and

his evidence; it did not believe [the defendant] . . .

. Consequently, the jury's verdict on age discrimination

is affirmed.

Wilson at 1146.

Likewise, the jur y has spoken in the present case and decided to

believe Ramirez and his evidence and not to believe Allright and

its evidence. The jury has an inherent right, and indeed, a duty

to reject evidence that they consider lacking in veracity and to4 Pursuant to 29 U.S.C. § 626(b), a finding of a willful

violation of the ADEA entitles the plaintiff to liquidated damages

in the amount of the b ack pay award. See B urns v. Texas City

Refining, Inc., 890 F.2d 747, 752 (5th Cir. 1989).

12 believe evidence that they consider trustworthy. Because there was

sufficient ev idence for them to believe Ramirez's claim that

Allright discriminated against him based on his age, we will not

disturb their verdict.

Allright next contends that th ere was insufficient evidence

for the jury to find that it "willfully" violated the ADEA. 4 A

violation "is willful if the employer either knew or showed

reckless disr egard for the matter of whether its conduct was

prohibited by the ADEA." Burns v. Texas City Refining, Inc., 890

F.2d 747, 751 (5th Ci r. 1989). The facts previously recited in

this opinion, coupled with the statement made by Ramirez's son to

Matocha asking him if he was aware of the ADEA were sufficient for

the jury to find that Allright's violation of the ADEA was willful.

C. Damages

Allright contends that the jury's award of $23,760 in back pay

damages was excessive. Generally, the jury's assessment of damages

is entitled to considerable deference, and will be disturbed only

when the award clearly exceeds the amount to which any reasonable

m an could feel the claimant is entitled. E nterprise Ref. Co. v.

Sector Ref. Co., 781 F.2d 1116, 1118 (5 t h Cir. 1986). The

plaintiff's expert economist testified that Ramirez suffered from

$19,963 to $28,510 in ba ck pay loss. That testimony, which was

uncontroverted by Allright, along with Ramirez's employment history5 It is within the discretion of the district court to award

front pay in place of reinstatement, if it finds that reinstatement

is impractical. D eloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th

Cir. 1990).

13 was sufficient evidence for the jury to reasonably believe that

Ramirez sustained a back pay loss of $23,760.

Next, Allright conten ds that the district court's award of

$62,362 in front pay, or future lost earnings, was excessive. 5 It

is within the district court's discretion to determine the amount

of the front pay award. D eloach v. Delchamps, Inc., 897 F.2d 815,

824 (5th Cir. 1990). The expert for Ramirez testified that

Ramirez's front pay damages were $62,362. Allright did not

introduce expert testimony, or any other eviden ce controverting

that testimony, and therefore we hold that the district court did

not abuse its discretion in awarding that amount.

For the foregoing reasons, we affirm in part, reverse in part,

and remand to the district court for it to enter judgment in

accordance with this opinion.