1 Texas City Refining, Inc. (TCR) is a subsidiary of Agway Petroleum Corporation, Agway,

Inc., and Southern States Cooperative. United States Court of Appeals,

Fifth Circuit.

No. 91-2538.

Jo Ann McCANN and Blanche Christine Hickman, Plaintiffs,

Blanche Christine Hickman, (Linard Vergil Hickman, as Independent Executor of the estate of

appellee, Blanche Christine Hickman, for Substitution in Place and Stead o f Appellee Blanche

Christine Hickman, deceased), Plaintiff-Appellee, Cross-Appellant,

Jo Ann McCann, Plaintiff-Appellant, Cross-Appellee,

v.

TEXAS CITY REFINING, INC., et al., Defendants-Appellees,

Hill Petroleum, Inc., Defendant-Appellant, Cross-Appellee,

Agway, Inc., et al., Defendants-Appellees, Cross-Appellants.

March 1, 1993.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and JOHNSON and JOLLY, Circuit Judges.

PER CURIAM:

In the summer of 1989, Blanche Hickman and Jo Ann McCann lost their jobs. Hickman and

McCann had been working at a refinery owned by Texas Cit y Refining, Inc. (TCR). 1 When that

refinery was sold to Hill Petroleum, Inc. (Hill), Hickman and McCann were not offered jobs by the

new owners. Subsequently Hickman and McCann sued Hill, TCR, and TCR's parent corporations

(collectively Agway) for violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§§ 621-634. At trial, the jury found that Hill was guilty of willful age discrimination against Hickman;

however, the jury found that McCann had not been a victim of age discrimination.

Hill now appeals the judgment entered by the district court pursuant to the jury's finding of

willful discrimination against Hickman. Hickman cross-appeals the district court's denial of

prejudgment interest on the award of backpay. McCann cross-appeals the district court's dismissal2 The provisions of the ADEA protect individuals who are at least 40 years of age. 29 U.S.C. §

631(a). At the time Hill purchased the refinery, Hickman was 64 and McCann was 53.

3 Effective December 1, 1991, Rule 50 of the Federal Rules of Civil Procedure was amended.

Under the new Rule 50 the familiar "motion for directed verdict" and "motion for JNOV" are now

called "motions for judgment as a matter of law." The trial in this case took place before the

effective date of that amendment. of TCR and Agway pursuant to a Rule 12(b)(6) motion. As for Hill's appeal, this Court remands the

case for a new trial limit

ed to the issue of whether Hill's discrimination against Hickman was willful.

As to the issues raised by Hickman and McCann, we hold that the district court did not err either in

denying Hickman prejudgment interest on the award of backpay or in holding that McCann's

complaint failed to state a cause of action against TCR and Agway.

I. F ACTS AND P ROCEDURAL H ISTORY

On June 30, 1988, Hill Petroleum purchased and took over the refining facilit y owned by TCR

in Texas City, Texas. Hill restructured the work force and hired back approximately 300 of the 450

employees of TCR. All positions filled by Hill were staffed with former TCR employees. As a part

of this restructuring, Hickman was laid off and her position as shift clerk was filled by younger

employees, and McCann's position as a confidential secretary and personn el administrator was

eliminated. Both Hickman and McCann had been long-time employees of TCR and were within the

protected class of the ADEA. 2

Both Hickman and McCann filed suit against Hill, T CR, and Agway, alleging that the

defendants had violated the ADEA and had conspired to deprive the plaint iffs of their civil rights in

violation of 42 U.S.C. § 1985(3). The plaintiffs later dismissed their § 1985 action. After concluding

that the remaining ADEA claims failed to state a cause of action against TCR and Agway, the district

court dismissed those defendants. The plaintiffs later filed several motions to amend their complaint

to add a pendant state-law claim of "torti ous interference with employment contract" against TCR

and Agway. The district court, however, denied the motions to amend, concluding that the amended

complaints were subject to dismissal in the same manner as the original complaint.

Eventually the case went to trial against Hill alone. After the completion o f t he plaintiffs'

case, Hill moved for a directed verdict 3 on the grounds that the plaintiffs had not shown intentional4 The actual objection made by Hill was as follows:

Mr. Smith [Counsel for Hill]: We have a motion for Judgment at the close of the

plaintiffs' case. Based on the case of [ Thornbrough v. Columbus & G.R.R., 760

F.2d 633 (5th Cir.1985) ] and [ Williams v. General Motors Corp., 656 F.2d 120

(5th Cir. Unit B Sept. 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71

L.Ed.2d 655 (1982) ], both Fifth Circuit cases, your Honor, each of these cases

require, in addition to the standard Title Seven and AD[E]A test, that the plaintiffs

in this case produce evidence, circumstantial or direct, in which the fact finder

might conclude their employer intended to discriminate on the basis of age.

....

Mrs. Hickman said that she thought that they [Hill] had told her that she

couldn't work there anymore. Now, Mr. Snodgrass testified as a part of the

plaintiffs' case, without being qualified as an adverse witness—the plaintiff has

adopted his testimony—that he believed that she did not want a job. He testified

that she was a good person. There has been no proof offered that is pretext. It is

not a pretext. It was offered as a part of the plaintiffs' case.

Your Honor, we would submit that neither of the plaintiffs have met the

test required under the Williams test to proceed to a jury with this case. And we

are entitled to a judgment.

The cases cited by Hill, Thornbrough and Williams, deal with the elements of an

ADEA plaintiff's prima facie case in the context of a general reduction in an employer's

workforce. In the ordinary ADEA case, one of the required elements of a plaintiff's prima

facie case is that the plaintiff was replaced by a younger employee. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668

(1973); Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir.1977). This type of

showing is impossible in a typical workforce reduction case since the plaintiff's position

has been eliminated. Thornbrough, 760 F.2d at 642. This Circuit has therefore

established a different standard for workforce reduction cases. Under this standard, a

plaintiff must (1) satisfy the standing requirements of the statute, (2) show that he was

qualified to assume another position, and (3) produce evidence from which a factfinder

might reasonably conclude that the employer intended to discriminate in reaching the

decision at issue. Uffelman v. Lone Star Steel Co., 863 F.2d 404, 407 (5th Cir.), cert.

denied, 490 U.S. 1098, 109 S.Ct. 2448, 104 L.Ed.2d 1003 (1989).

Obviously Hill's motion was not a model of clarity. Still, we think the motion

adequately informed the plaintiffs and the district court that Hill was challenging the

sufficiency of the plaintiffs' prima facie case, especially given this Court's lenient approach

to the specific grounds requirement for motions for directed verdict and JNOV. See DBI

Servs., Inc. v. Amerada Hess Corp., 907 F.2d 506, 598 n. 1 (5th Cir.1990) ("While the

motion for judgment n.o.v. may have been more specific, it certainly created no

surprise."). However, as discussed below, this motion cannot possibly be read as an

objection to the sufficiency of the plaintiffs' evidence of willfulness. discrimination by Hill. 4 However, contrary t o the assertions in the defendant's briefs before this

Court, the Record shows that Hill did not specific ally mo ve for a directed verdict on the issue of

willfulness. Also, the record shows that Hill failed to renew its motion for a directed verdict at the5 Under 29 U.S.C. § 216(b), liquidated damages are awarded in an amount equal to the total

unpaid wages. close of all of the evidence.

The jury subsequently returned a verdict in favor of Hickman, finding that Hill failed to hire

Hickman because of her age. But the jury failed to find a violation with regard to Hill's non-retention

of McCann. The jury found that Hickman suffered damages of $63,000 in lost backpay. In addition,

the jury determined that Hill's conduct with regard to Hickman constituted a willful violation of the

act. The ADEA provides for an award of liquidated damages in the case of willful discrimination.

29 U.S.C. § 626(b). Therefore, based upon the jury's finding, the district court imposed a statutory

penalty of liquidated damages in the amount of $63,000. 5 In its final order, the district court denied

Hickman prejudgment interest on the damage award.

II. D ISCUSSION

A. Hill Petroleum's Appeal

Hill purports to raise two different issues before this Court. Fi rst, Hi l l argues that the

evidence was insufficient to support the jury finding of willful discrimination, and second, Hill argues

that the district court erroneously denied Hill's motions for directed verdict and for judgment

notwithstanding the verdict on the issue of willfulness. In reality, these two arguments present only

one issue. Reviewing a denial of a motion for directed verdict made at the end of trial and reviewing

the sufficiency of the evidence are one and the same thing. D ickinson v. Auto Center Mfg. Co., 733

F.2d 1092, 1102 (5th Cir.1983); M urphy v. Georgia-Pacific Corp., 628 F.2d 862, 868 n. 13 (5th

Cir.1980). Under either of Hill's arguments, the only question before this Court is whether there is

"a lack of substantial evidence to support a jury verdict." Dickinson, 733 F.2d at 1102.

What Hill has neglected to mention, either in briefs or at oral argument, is that a motion for

a directed verdict on the issue of willfulness was not made at the conclusion of all the evidence in this

trial. At the close of the plaintiffs' case, Hill did move for judgment on the ground that the plaintiffs

had not shown that Hill intended to violate the ADEA. S ee supra note 4. That motion, however,

was not renewed at the conclusion of all evidence. Hill's failure t o renew it s motion for directedverdict has two severe consequences. First, the earlier motion for directed verdict cannot be the basis

for a challenge before this Court to the sufficiency of the plaintiffs' evidence. It is well-established

law that the sufficiency of the evidence is not reviewable o n appeal unless a motion for directed

verdict was made in the trial court at the conclusion of all the evidence. Hall v. Crow n Zellerbach

Corp., 715 F.2d 983, 986 (5th Cir.1983); C H ARLES A. W RIGHT & A RTHUR R. M ILLER

, F EDERAL

P RACTICE AND P ROCEDURE 593 (1971). By introducing its own evidence and failing to renew the

motion for directed verdict after all the evidence was in, Hill waived any objection to the sufficiency

of the plaintiffs' prima facie case. M cCabe & Steen Constr. Co. v. Wilson, 209 U.S. 275, 276, 28

S.Ct. 558, 559, 52 L.Ed. 788 (1908); Hernandez v. Employers Mut. Liab. Ins. Co., 346 F.2d 154,

155 (5th Cir.1965); 5A J E REMY C. M OORE ET AL

., M OORE ' S F EDERAL P RACTICE ¶ 50.05[1] (2d ed.

1992).

Second, Hill's earlier motion cannot serve as a predica t e for a motion for judgment

notwithstanding the verdict. Whatever the merits of Hill's substantive argument, it is well established

that a party waives the right to challenge the sufficiency of the evidence with a JNOV unless a motion

for directed verdict is made or renewed at the close of all evidence. F E D .R.C IV .P. 50(b); S cheib v.

Williams-McWilliams Co., 628 F.2d 509, 512 (5th Cir.1980). The district court should not have

even considered Hill's motion for JNOV. Scheib, 628 F.2d at 511 n. 1.

In the past, this Court has been willing to excuse certain "de minimis" de partures f rom

technical compliance with Rule 50(b). S ee, e.g., Davis v. First Nat'l Bank, 976 F.2d 944, 948-49 (5th

Cir.1992); Merw ine v. Board of Trustees, 754 F.2d 631, 634-35 (5th Cir.), cert. denied, 474 U.S.

823, 106 S.Ct. 76, 88 L.Ed.2d 62 (1985); B ohrer v. Hanes Corp., 715 F.2d 213, 216-17 (5th

Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). This Court has

repeatedly emphasized that the application of Rule 50(b) " "should be examined in the light of the

accomplishment of [its] particular purpose[s] as well as in the general context of securing a fair trial

for all concerned in the quest for truth.' " Merwine, 754 F.2d at 634 (quoting Bohrer, 715 F.2d at

217) (alterations in original). In each case where we have excused noncompliance with Rule 50(b),

this Court has concluded that the purposes of the rule had been satisfied. In each case, the trial courthad reserved a ruling on an ea r lier motion for directed verdict (made at the close of the plaint iff's

evidence); the defendant called no more than two witnesses before closing; only a few minutes

elapsed between the motion for directed verdict and the conclusion of all the evidence; and the

plaint iff introduced no rebuttal evidence. D avis, 976 F.2d at 948-49; M erwin, 754 F.2d at 634-35;

Bohrer, 715 F.2d at 217.

In the instant case, however, the situation was very different. The district court did not

reserve a ruling on Hill's motion for directed verdict; instead the court flatly denied the motion. Also,

Hill introduced numerous witnesses after the close of the plaint iff's case. In fact, Hill's evidence took

up over a full day—nearly one-third of the three and a half day trial. Neither the district court nor

the plaint iffs could have been aware that Hill continued to challenge the sufficiency of the plaint iffs'

prima facie case. Here we are not faced with a "de minimis" departure but rather a complete failure

to follow the requirements of Rule 50(b). While it is true that this Circuit approaches such questions

of technical compliance with a "liberal spirit," see Davis, 976 F.2d at 948, we are not wi l l i ng to

rewrite the Federal Rules of Civil Procedure.

Nevertheless, even if this Court were willing to take such a drastic step and overlook Hill's

failure to renew its motion for directed verdict, it still would not change our holding in this case. The

ADEA establishes a two-ti ered system of damages. T rans World Airlines, Inc. v. Thurston, 469 U.S.

111, 128, 1 05 S.Ct. 613, 625, 83 L.Ed.2d 523 (1985); s ee John E. Charland, Willfulness, Good

Faith, and the Quagmire of Liquidated Damages Under the Age Discrimination in Employment Act,

13 J.Corp.L. 573 (1988). A showing of an ADEA violation entitles the plaintiff to recover

compensatory damages. 29 U.S.C. § 626(b). Once basic liability under the ADEA has been

established, a finding that the violation was willful entitles the plaint iff to an a ward of liqui dated

damages. Id.

In the instant case, at the close of the plaint iffs' evidence Hill moved for judgment on the

grounds that the plaint iffs had presented insufficient evidence to show intentional discrimination by

Hill. In other words, Hill argued that the plaintiffs had not pro ven a vio lation of the ADEA as

required under the first tier of the ADEA's liabilit y scheme. S ee supra note 4. Hill now attempts to6 Rule 50(a)'s "specific grounds" requirement serves both to make the trial court aware of the

movant's position and to give the opposing party an opportunity to mend its case. Hall, 715 F.2d

at 986. challenge the sufficiency of the plaint iffs' evidence of a willful violation of the ADEA, the second tier

of the statutory liabilit

y scheme. Rule 50(a) requires a motion for a directed verdict to state the

specific grounds 6 fo r granting the motion. S ee Woods v. Sammisa Co., 873 F.2d 842, 853 (5th

Cir.1989). A party may not base a motion for JNOV on a ground that was not included in a prior

motion for a directed verdict. 5A M O ORE ' S F EDERAL P RACTICE

, supra, ¶ 50.08. Yet at no point did

Hill specifically object to the sufficiency of the plaint iffs' evidence on the issue o f willfulness. The

question of liabilit

y under the ADEA is completely separate from the que st io n o f willfulness. To

establish liabilit

y under the ADEA, a plaint iff must show only that he is within the protected class of

the ADEA and the defendant discharged, refused to hire, or otherwise discriminated against the

plaint iff with respect to compensation, terms, conditions, or privileges of employment, because of the

plaintiff's age. 29 U.S.C. § 623(a)(1). In contrast, a showing of willfulness requires proof that the

defendant "either knew or showed reckless disregard for the ma tter of whether i ts conduct was

prohibited by the ADEA." R amirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1378 (5th

Cir.1992) (quoting Burns v. Texas City Ref., Inc., 890 F.2d 747, 751 (5th Cir.1989)). "It would be

a constitutional

ly impermissible re-examination of the jury's verdict for the district court [or this

Court] to enter judgment n.o.v. on a ground not raised in the motion for directed verdict." S ulmeyer

v. Coca Cola Co., 515 F.2d 835, 846 n. 17 (5th Cir.1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148,

47 L.Ed.2d 341 (1976). Because proof of liability under t he ADEA requires completely different

evidence than proof of willfulness, Hill's motion for judgment was simply not specific enough to allow

Hill to challenge the sufficiency of the plaintiffs' proof of willfulness on appeal.

Since Hill did not actually move for a directed verdict on the issue of willfulness at the close

of all the evidence—and consequently was not entitled to move for a JNOV o n the issue—Hill's

objection to the sufficiency of the plaint iffs' evidence on willfulness is being raised for the first time

on appeal. It is the unwavering rule in this Circuit that issues raised for the first time on appeal are

reviewed only for plain error. Shipman v. Central Gulf Lines, Inc., 709 F.2d 383, 388 (5thCir.1983). In other words, this Court will reverse o nly if the judgment complained of results in a

"manifest miscar riage of justi ce." C oughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th

Cir.1978). Thus, the question before this Court is not whether t here was substantial evidence to

support the jury verdict, but whether there was any evidence to support the jury verdict. Id. Even

if no evidence supports the verdict, this Court lacks the power to enter judgment for the appellant.

Instead, appellate relief is limit ed to ordering a new trial. H inojosa v. City of Terrell, 834 F.2d 1223,

1228 (5th Cir.1988), cert. denied, 493 U.S. 822, 110 S.Ct. 80, 107 L.Ed.2d 46 (1989); Gorsalitz

v. Olin Mathieson Chem. Corp., 429 F.2d 1033, 1038 (5th Cir.1970), cert. denied, 407 U.S. 921,

92 S.Ct. 2463, 32 L.Ed.2d 807 (1972); see 5A M OORE ' S F EDERAL P RACTICE

, supra, ¶ 50.05[1].

In order to establish willfulness, Hickman had the burden of proving that Hill "either knew

or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA."

Ramirez, 970 F.2d at 1378. Our review of the record fails to reveal any evidence that could satisfy

Hickman's burden on this issue. Although the plain error exception is only applied in the exceptional

case, we must conclude that this is such a case. But because Hill's relief is sorely limited by its failure

to move for a directed verdict on this issue, we cannot render judgment for Hill. Instead, we remand

this case for a new trial limited to the issue of whether Hill's ADEA violation was willful.

B. Hickman's Cross-Appeal

Hickman argues that the district court erred in denying prejudgment interest on the award

of backpay. This issue—whether prejudgment interest is proper when a court awards liquidated

damages to a plaintiff in an ADEA suit—is one this Court intended to settle in Burns v. Texas City

Refining, Inc., 890 F.2d 747 (5th Cir.1989). Upon reexamining the B urns opinion, however, we are

constrained to admit that our earlier decision may have been less than preci se. What the Court

intended to say in Burn s, and what we reemphasize today, is that this Circuit follows the Seventh

Circuit's approach to prejudgment interest in ADEA cases. See Coston v. Plitt Theatres, Inc., 831

F.2d 1321, 1336 (7th Ci r.1987), v acated on other grounds, 486 U.S. 1020, 108 S.Ct. 1990, 100

L.Ed.2d 223 (1988). In an ADEA case where liquidated damages are awarded, a co urt may not

award prejudgment interest on either the backpay or the liquidated damage award. Any language in7 Both in the complaint and in briefs filed before this Court, McCann also argues that TCR and

Agway "conspired" with Hill to deny her employment based upon her age. Whatever the other

deficiencies of this claim, the simple fact is that the ADEA itself contains no provision prohibiting

conspiracies of this sort. Burns that suggests otherwise is disapproved. In the instant case, because liquidated damages were

awarded, the district court did not err in refusing to award Hickman prejudgment interest.

C. McCann's Cross-Appeal

McCann appeals the district court's dismissal of TCR and Agway pursuant to a Rule 12(b)(6)

motion. A district court's ruling on a 12(b)(6) motion is subject to d e novo review. B arrientos v.

Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.1990), cert. denied,

--- U.S.

----, 111

S.Ct. 795, 112 L.Ed.2d 857 (1991). This Court will affirm an order granting a 12(b)(6) motion to

dismiss "only if it appears that no relief could be granted under any set of facts that could be proven

consistent with the allegations." Id.

McCann's original complaint asserted two causes of action against TCR and Agway: first,

that t he defendant s violated the terms of the ADEA; and second, that the defendants violated 42

U.S.C. § 1985(3) by conspiring to discriminat e against McCann because of her age. McCann

voluntarily dismissed the § 1985 conspiracy claim, leaving only the ADEA cause of action. The

ADEA makes it unlawful for any employer "to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). McCann's

complaint fails to allege any actions by TCR or Agway that would violate the ADEA. TCR was the

former employer of McCann. However, it cannot be said that TCR discharged McCann because of

her age; TCR sold the refinery and discharged e veryone. In reality, the sole act of discrimination

asserted by

McCann's complaint was Hill's refusal to hire her. 7 Although it is true that courts will

bend over backwards to avoid granting a 12(b)(6) motion to dismiss, here McCann simply did not

allege any facts that could possibly support her ADEA claim against TCR and Agway.

Even if her original complaint was subject to dismis sal, McCann argues that her amended

complaint successfully stated a state-law cause of action against these defendants. In this amendedcomplaint, McCann alleged that TCR and Agway "tortiously interfered" with McCann's employment

contract. There is some disagreement among the parties as t o whet her the district court actually

considered this amended complaint. This disagreement is irrelevant, however, because the amended

complaint also fails to state a cause of action against TCR and Agway.

Texas law does recognize a cause of action for torti ous interferenc e with an employment

contract. S ee Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex.1989). The first element of

such a claim, however, is the existence of an employment contract. C hampion v. Wright, 740 S.W.2d

848, 853 (Tex.Ct.App.1987). McCann's proposed amended complaint does not allege that McCann

was ever hi

red by Hill. It should be obvious to all that TCR and Agway could not possibly have

interfered with an employment co nt ract that never existed. Therefore, since McCann's proposed

amended complaint also failed to state a claim against TCR or Agway, it was not error for the district

court to refuse to allow McCann to amend her complaint.

III. C ONCLUSION

For the reasons stated, we remand this case for a new trial limit ed to the question of whether

Hill's discrimination against Hickman was willful. Additionally, we hold that the district court did not

err in denying Hickman prejudgment interest on the award of backpay or in holding that McCann's

complaint failed to state a cause of action against TCR and Agway. Accordingly, those portions of

the district court's judgment are affirmed.