United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2936

___________ James E. Jarvis, * * Appellant, * * v. * * Sauer Sundstrand Company, * * Appellee. *

__________ Appeals and Cross-Appeals from the No. 96-3068 United States District Court for the

__________ Southern District of Iowa. James E. Jarvis, * * Appellee, * * v. * * Sauer Sundstrand Company, * * Appellant. *

__________ No. 96-3902

__________ James E. Jarvis, * * Appellant, * *The Honor able Frank J. Magill was an active judge at the time this case wa s 1 originally s cheduled for oral argument on March 14, 1997, and assumed senior status on April 1, 1997, before the opinion was filed. THE HONORABLE RICHARD W. GOLDBERG, Judge, United States Court 2 of International Trade, sitting by designation. -2- v. * * Sauer Sundstrand Company, * * Appellee. *

__________ No. 96-3904

__________ James E. Jarvis, * * Appellee, * * v. * * Sauer Sundstrand Company, * * Appellant. *

___________ Submitted: April 3, 1997 Filed: June 17, 1997

___________ Before MAGILL and MURPHY, Circuit Judges, and GOLDBERG, Judge. 1 2

___________The Honorable Harold D. Vietor, United States District Judge for the Southern 3 District of Iowa. -3- MAGILL, Circuit Judge. This case involves James Jarvis's claim that hi s em ployer, Sauer Sundstrand Company (Sundstrand) , discriminated against him on the basis of age . Following a jury verdict in Jarvis's favor, the district court 3 granted Sundstrand's motion for judgment as a matter o f law (j.a.m.l.) only with respect to the willfulnes s element of Jarvis's claim. The district court denie d Sundstrand's motion for j.a.m.l. with respect to the jury's fin ding that age motivated Sundstrand's decision t o re deploy Jarvis and that Jarvis was constructivel y discharged. Jarvis appeals the partial grant of j.a.m.l. an d Sundstrand cross-appeals the partial denial. We affirm.

I. Sundstrand, formed i n 1989, is in the hydraulic pump bu siness. In 1971, Sundstrand's predecessors established th e Ames , Iowa plant, where Jarvis worked. Sundstran d stru ggled financially throughout the early 1990's. I n the face of financial difficulty, Sundstrand reorganized, redeployed employees, conducted voluntary and involuntary layoffs, and offered early retirement plans.
Jarvis began working at the Ames, Iowa plant in 1971
. In 1 992, Jarvis worked as a Material Logisti c Admin istrator in a department with twelve othe r employees. In April of 1992, David Haynes re placed Roger Beck ett as Director of Operations Planning and Jarvis' s-4-

supe rvisor. Jarvis had received performance review s throughout his employment. He typically scored a "4" on a "1" to "5" scale. Although Jarvis claims he was no t told of the change, Sundstrand asserts that i n October of 199 2, "5" went from being the highest to the lowes t rating. Jarvis received a year end review fr om Haynes on December 17, 1992. This review was not all good an d Jarvis was not given a numerical rating.-5-

On December 18, 1992, Sundstrand announced an earl y retirement program. Employees aged fifty-five and older were gi ven until February 8, 1993, to receive a $25,00 0 bonu s and three years service credit upon thei r departure. Jarvis, who was fifty-seven years old, chose not to accept early retirement.
On Fe bruary 17, 1993, Haynes told Jarvis that th e Operations Planning Department was to be reduced by on e and that J arvis had been chosen. Haynes asked Jarvis to spea k with Doris Johnson, manager of human resources
. Johnso n told Jarvis that he had three options he coul d choo se: (1) voluntary layoff with severance; (2) th e earl y retirement program he had previously declined; o r (3) an unknown factory assignment at an unknown salary
. John son also told Jarvis that he had been chosen fo r redeployment because of his low "4" review score.
Sundstrand claims that Jarvis's redeployment was par t of a plant-wide redeployment plan scheduled for the en d of March 1 993. Therefore, until the plant-wide plan was finalized, Jarvis's new assignment was uncertain
. Sundstrand also claims that Jarvis was told of hi s redeployment early so that he could take adva ntage of the early reti rement option. In any case, it was clear that there was a position for Jarvis within the plant.
From among his three choices, Jarvis eventuall y elect ed to take early retirement. As of March 1, 1993 , Jarvis was no longer employed by Sundstrand.
On September 24, 1993, Jarvis commenced this actio n under the Age Discrimination in Employment Ac t (ADEA), 29-6-

U.S.C. §§ 621-634 (1988 & Supp. IV 1992). Ja rvis claimed he had been constructively discharged on account of hi s age and that Sundstrand's actions were willfu l, entitling him t o liquidated damages. On March 21, 1996, the jur y returned a verdict in Jarvis's favor. Sundstrand move d for j.a.m.l. On June 21, 1996, the district court grante d Sun dstrand's motion for j.a.m.l. only with respect to th e jury 's finding of willfulness, but concluded that th e evidence was legallyJarv is also argues that the district court's partial grant of j.a.m.l. wa s 4 procedurally flawed. Jarvis asserts that Sundstrand's conclusory pre-verdict motions failed to "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Fed. R. Civ. P. 50(a)(2). Thus, Jarvis concludes that Sun dstrand's post-verdict j.a.m.l. motion was improperly granted on a ground no t preserved prior to the verdict. See Hur st v. Dezer/Reyes Corp. , 82 F.3d 232, 237 (8th Cir. 1996) (citing Diercks v. Durham , 959 F.2d 710, 714 (8th Cir. 1992); 5A James W. Moore, Moore's Federal Practice ¶ 50.08 at 5 0-86 (2d ed. 1994)); Lambert v. Genesee Hos p. , 10 F.3d 46, 54 (2d Cir. 1993) (specificity requirement puts nonmovants o n notice of potential deficiencies in their proof). We disagree. Sundstrand's pre-verdict motion was as follows: Mr. Craven: At this time the Defendant would move for judgment as a matter of law on all the Plaintiff's claims on the grounds that plaintiff has no t produced any evidence, certainly not any sufficient evidence, b y which a re asonable jury could return a verdict in favor of Plaintiff. I n fa ct, Plaintiff has shown no evidence beyond Plaintiff's own persona l belief tha t age discrimination was a factor to support his claim that ag e played any part whatsoever in his termination. Trial Tr. at 218, reprinted inAppellant's App. at 105. The district court did not abuse its discretion in finding that the j.a.m.l. grounds -7- sufficient for the jury to find that age motivate d Sundstrand 's decision to redeploy Jarvis and that Jarvis wa s constructively discharged. Jarvis appeals an d Sundstrand cross-appeals.
II.
On appeal, Jarvis argues that the district cour t erred by concluding that the evidence at trial was no t legally sufficient for a reasonable jury to find tha t Sundstrand's conduct was willful. We disagree. 4were fairly raised in the pre-verdict motion. See Hurst , 82 F.2d at 237 (standard o f

review). First, Jarvis does no t make an adequate showing that he lacked fair notice of the "willfulness" issue or

did not have an opportunity to cure deficiencies in his proof. See id. Second, a movant's grounds for the motion need not be stated with t he technical precisionwhich Jarvis asserts. Cf. Cortez v. Life Ins. Co. of N. Am. , 408 F.2d 500, 503 (8th Cir . 1969) ("Technical precision is not necessary in stating grounds for th e [j.a.m.l.] motion so long as the trial court is awa re of the movant's position." (quotation omitted)). -8- The district court properly concluded that th e evid ence at trial was legally insufficient for a reas onable jury to find that Sundstrand's conduct wa s willf ul. In reviewing a judgment as a matter of law , this Court uses the same standard as the district court:
In a motion for [ j.a.m.l. ], the question is a legal on e, whether there is sufficient evidence t o support a jury verdict. This court must analyze the evidence in the light most favorable to the preva iling party and must not engage in a weigh ing or evaluation of the evidence o r consider questions of credibil ity. We have also stated that to sustain a motion for [j.a.m.l.], all the evidence must point one way and b e susceptible of no reasonable inferenc e sustaining the position of the nonmoving party.
White v. Pence , 961 F.2d 776, 779 (8th Cir. 1992 ) (footnote and citations omitted). Only a determination of willfulness allows for a n awa rd of liquidated damages under the ADEA. See 2 9 U.S.C. § 626(b) (1988 & Supp. IV 1992). The Suprem e Court has defined "willful" in this context t o mean "that the employer either knew or showed reckless d isregard for-9-

the mat ter of whether its conduct was prohibited by th e statute." Hazen Paper Co. v. Biggins , 507 U.S. 604, 617 (199 3) (reaffirming the standard adopted in Trans Worl d Airlines, Inc. v. Thurston , 469 U.S. 111, 128 -29 (1985)); see also G rover v. McDonnell Douglas Corp. , 12 F.3d 845, 848- 49 (8th Cir. 1994). However, "[l]iquidated damage s are not warranted merely because an employer knows tha t the A DEA may be 'in the picture' when an older employe e is discharged."-10-

Radem aker v. Nebraska , 906 F.2d 1309, 1313 (8th Cir
. 1990) (quoting Thurston , 469 U.S. at 127-28). Evidence was present ed upon which a finding could be made that Sundstrand knew that the ADEA may be "in th e pi cture" when it selected Jarvis for redeployment
. Jarvis testified that he "kind of jokingly--n ot jokingly" told Sundstrand's manager of human resources, Johnson , that Jarvis's redeployment sounded like discrimination
. Trial Tr. at 124-25. However, this knowledge that th e ADEAwas "in the picture" does not warrant an award o f liquida ted damages. See Rademaker , 906 F.2d at 1313 ; Grove r , 12 F.3d at 849. Only a showing that Sundstran d either knew or showed reckless disregard for the matte r of wh ether its conduct was prohibited by the ADEA ca n warrant such an award. See Hazen , 507 U.S. at 616-17.
Evidence was also presented upon which the jury coul d have based a finding that Sundstrand willfull y considered Jarvi s's age in its treatment of Jarvis. See Trial Tr
. at 195, 204 (reading to the jury Haynes's depositio n testimony which acknowledged that Jarvis's age entere d into Haynes's decision), reprinted in Appella nt's App. at 82, 91. H owever, although that willful act violated the ADEA, that is not the same as a willful violation of the st atute. "[I]n order that the liquidated damages b e based o n evidence that does not simply duplicate tha t needed for the compensatory damages, there must be som e additional evidence of the employer's reckles s disregard." Williams v. Valentec Kisco, Inc. , 964 F.2 d 723, 729 (8th Cir. 1992) (quotations and citation s omitted); cf. Grover , 12 F.3d at 849 ("A viol ation of the ADEA does not require any particular mental state, bu t-11-

the award of liquidated damages under the ADEA does.")
. No additional evidence was presented, beyond tha t requi red to prove the underlying discrimination, upo n which a finding of wilfulness could be based.
After reviewing the trial record, we conclude tha t evid ence was not submitted to the jury that Sundstran d knew or recklessly disregarded the possibility that it s actions toward Jarvis would violate the ADEA.-12- III.

In it s cross-appeal, Sundstrand argues that th e district court erred by concluding that the evidence a t trial w as legally sufficient for a reasonable jury t o find that age was the motivating factor in Sundstrand' s deci sion to redeploy Jarvis and that Jarvis wa s constructively discharged. We disagree.
The district court properly concluded that sufficien t evidenc e supports the jury's finding that age was th e motivating factor in Sundstrand's decision to redeplo y Jarvis and that Jarvis was constructively dis charged. As discussed above, the standard for granting a motion fo r j.a.m.l. is high. Here, although Jarvis may not have the strongest case of age discrimination, it cannot be sai d that all the evidence points in Sundstrand's favor and is susceptible of no reasonable inference sustainin g Jarvis's p osition. See White , 961 F.2d at 779 (standard of review).
The evidence on which reasonable jurors could hav e relied to conclude that age was the motivating factor in the d ecision to redeploy Jarvis and that Jarvis wa s co nstructively discharged includes: (1) Haynes' s de position testimony in which he acknowledged tha t Jarvis's age entered into Haynes's decision, Trial Tr. at 195, 2 04, reprinted in Appellant's App. at 82, 91; (2 ) infe rences from the timing of events, particularly th e offe r of early retirement and Jarvis's selection fo r redep loyment; (3) inferences from the fact tha t Sundstr and could not tell Jarvis what position in th e factory he was being redeployed to or what pay rate h e-13-

would receive; and (4) inferences from the parallels i n treatment between Jarvis and Ed Stout, anothe r Sundstrand empl oyee who declined early retirement, was chosen fo r unce rtain redeployment, and then chose to accept earl y retirement.
Of this evidence, the most direct evidence on whic h a reasonab le jury could have chosen to rely was Haynes's depo sition testimony. The jury was read the followin g excerpt:-14- "Q uestion: So have we covered all of th e reasons then why Mr. Jarvis wa s chosen to be the one to let go from operations planning? "Answer: As far as I'm concerned.

. . . " He being the oldest one in th e operations planning department, did that ente r into your decision? "Correct. "H e being the only one eligible for earl y retirement didn't enter into your decision? "That's correct." Trial Tr. at 203-05, reprinted in Appellant's App. at 90- 91. At trial, Haynes explained that his apparen t adm ission was a typographical error. Id. at 195 , reprint ed in Appellant's App. at 82. Considering th e context of the statement, Haynes's explanation i s plausible.
However, in analyzing the evidence, this Court mus t not consider questions of credibility or engage i n weighing or evaluating the evidence. See Whi te , 961 F.2d at 779. The fact remains that Haynes's depositio n test imony constitutes evidence for a reasonable jury t o find that Sundstrand was motivated by Jarvis's age
. This, toge ther with the reasonable inferences that could be drawn f rom other evidence, allowed the district court to co nclude properly that the evidence at trial wa s legally sufficient for a jury to find that age was th e motivating factor in Sundstrand's d ecision to redeploy Jarvis and that Jarvis was constructively discharged.-15- IV. Accordingly, the judgment of the district court i s affirmed.-16-

A true copy.

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