*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-60807

_____________________

WILLIAM F. HANKINS,

Plaintiff-Appellee,

versus

DATAPLEX CORPORATION,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(3:93-CV-16-BN)

_________________________________________________________________

December 22, 1995

Before REYNALDO G. GARZA, JOLLY, and DUHÉ, Circuit Judges.

PER CURIAM:*

Dataplex Corporation appeals an adverse judgment on a jury

verdict in favor of William Hankins, who sued Dataplex for age

discrimination. The jury returned a verdict finding discrimination

and a willful violation of the Age Discrimination in Employment

Act, and the trial court denied Dataplex's motions for judgment as

a matter of law and remittitur of damages. We affirm the finding
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of age discrimination, but REVERSE the finding of willfulness, and

reduce the damages awarded by $205,480.50.

I

A

Dataplex first challenges the sufficiency of the evidence to

support a finding of age discrimination. We review the district

court's denial of a motion for a judgment as a matter of law in an

age discrimination suit "with the duty of determining whether, upon

the record, a reasonable trier of fact could conclude that age was

a determinative factor in the action complained of." Atkin v.

Lincoln Property Co., 991 F.2d 268, 270 (5th Cir. 1993) (quoting

Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461,

1465 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129 (1989)).

Because the case was fully tried on the merits, we "need not

address the sufficiency of [the plaintiff's] prima facie case, and

may instead proceed directly to the ultimate question whether [the

plaintiff] has produced sufficient evidence for a jury to find that

discrimination has occurred." Atkin, 991 F.2d at 271. We focus on

the record as a whole to determine the sufficiency of the evidence.

Purcell v. Sequin State Bank, 999 F.2d 950, 957 (5th Cir. 1993).

Viewed in the light most favorable to the jury verdict, we

find sufficient evidence to support Hankins's ADEA claim. Hankins

provided statistical evidence--albeit weak and controverted--in

support of his attempt to show a pattern of discharging employees

within the protected age group. He also testified that Dataplex's
 

1Dataplex also asks this court to set aside the damages

awarded as back pay as plainly excessive, because they included a

$50,000 bonus payment to Hankins "that was speculative and

unsupported by the evidence, and because they were incorrectly

calculated on a pre-tax basis." After reviewing the record, we

find support for the award in the record and, finding no merit in

Dataplex's argument on this issue, we will not disturb the damages

awarded as backpay.

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president had told him that Dataplex needed a "younger and more

aggressive sales force." Finally, he submitted proof that he was

replaced by a younger employee at a higher salary when, Hankins

alleges, the supposed justification for his termination was as a

cost-saving measure. 

We will only set aside a jury finding of age discrimination

where "`the facts and inferences point so strongly and

overwhelmingly in favor of one party that the court believes that

reasonable men could not arrive at a contrary verdict.'" Atkin,

991 F.2d at 270. Although it is clear that neither Hankins's

statistical evidence nor the evidence of discriminatory statements,

standing alone, was sufficient to support his age discrimination

claim, we conclude that such evidence, taken together and in the

context of the whole record, allowed a jury to determine that

unlawful discrimination was a motivating factor in Hankins's

discharge. We therefore must affirm the jury's finding of age

discrimination, as well as the award of compensatory damages.1

B

Mindful that a simple finding of an ADEA violation does not

necessarily warrant a finding of willfulness so as to merit
 

2See Hazen Paper Co. v. Biggins, U.S. , , 113 S.Ct.

1701, 1708 (1993) (observing that Congress intended to create a

"two-tiered liability scheme," under which some, but not all, ADEA

violations would give rise to liquidated damages).

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liquidated damages,2 we find insufficient evidence to support the

jury's finding of a willful violation of the ADEA in this case.

The record demonstrates that Hankins did not prove that Dataplex

had a policy of discrimination against its older employees. Even

though a jury may impose liquidated damages for a willful ADEA

violation "where age has entered into the employment decision on an

ad hoc, informal basis rather than through a formal policy," Hazen

Paper Co. v. Biggins, U.S. , 113 S.Ct. 1701, 1709 (1993),

the employee must still prove "that the employer either knew or

showed reckless disregard for the matter of whether its conduct was

prohibited by the statute." Id. at 1708 (quoting McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681 (1988)).

Our review of the record does not uncover proof of knowledge

or reckless disregard by Dataplex for whether its conduct was

prohibited by the ADEA. We instead find that the statistical

evidence alone in this case would not have supported a finding of

discrimination; that Dataplex employed people in positions similar

to Hankins's in their sixties, seventies and even eighties; that a

majority of the company's work staff is over fifty-five; and that

the incriminating remarks made to the plaintiff in this case were

made by an individual in the company who did not actually fire him.

While we can conclude--even if with some difficulty--that a
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reasonable juror could decide that age entered into the decision of

one of Dataplex's managers "as an undisclosed factor motivating the

employer on an ad hoc basis," we find that Hankins adduced no proof

amounting to reckless disregard for the ADEA by Dataplex.

Consequently, Hankins failed to prove a willful violation of the

ADEA, and we therefore reduce the damages by $205,480.50, the

amount of the award representing liquidated damages.

II

For the reasons stated above, we AFFIRM the award of damages

based on a finding of age discrimination, and REVERSE the award of

liquidated damages based on a finding of a willful violation of the

ADEA.

AFFIRMED in part and REVERSED in part.