United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2936

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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 Honorable Frank J. Magill was an active judge at the time this case was

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originally scheduled 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.

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v. *

*

Sauer Sundstrand Company, *

*

Appellee. *

__________

No. 96-3904

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James E. Jarvis, *

*

Appellee, *

*

v. *

*

Sauer Sundstrand Company, *

*

Appellant. *

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Submitted: April 3, 1997

 Filed: June 17, 1997

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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.

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MAGILL, Circuit Judge.

 

This case involves James Jarvis's claim that his

employer, Sauer Sundstrand Company (Sundstrand),

discriminated against him on the basis of age. Following

a jury verdict in Jarvis's favor, the district court3

granted Sundstrand's motion for judgment as a matter of

law (j.a.m.l.) only with respect to the willfulness

element of Jarvis's claim. The district court denied

Sundstrand's motion for j.a.m.l. with respect to the jury's

finding that age motivated Sundstrand's decision to

redeploy Jarvis and that Jarvis was constructively

discharged. Jarvis appeals the partial grant of j.a.m.l. and

Sundstrand cross-appeals the partial denial. We affirm.

I.

Sundstrand, formed in 1989, is in the hydraulic pump

business. In 1971, Sundstrand's predecessors established the

Ames, Iowa plant, where Jarvis worked. Sundstrand

struggled financially throughout the early 1990's. In

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 1992, Jarvis worked as a Material Logistic

Administrator in a department with twelve other

employees. In April of 1992, David Haynes replaced Roger

Beckett as Director of Operations Planning and Jarvis's
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supervisor. Jarvis had received performance reviews

throughout his employment. He typically scored a "4" on

a "1" to "5" scale. Although Jarvis claims he was not

told of the change, Sundstrand asserts that in October of

1992, "5" went from being the highest to the lowest

rating. Jarvis received a year end review from Haynes on

December 17, 1992. This review was not all good and

Jarvis was not given a numerical rating.
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On December 18, 1992, Sundstrand announced an early

retirement program. Employees aged fifty-five and older

were given until February 8, 1993, to receive a $25,000

bonus and three years service credit upon their

departure. Jarvis, who was fifty-seven years old, chose

not to accept early retirement.

On February 17, 1993, Haynes told Jarvis that the

Operations Planning Department was to be reduced by one

and that Jarvis had been chosen. Haynes asked Jarvis to

speak with Doris Johnson, manager of human resources.

Johnson told Jarvis that he had three options he could

choose: (1) voluntary layoff with severance; (2) the

early retirement program he had previously declined; or

(3) an unknown factory assignment at an unknown salary.

Johnson also told Jarvis that he had been chosen for

redeployment because of his low "4" review score. 

Sundstrand claims that Jarvis's redeployment was part

of a plant-wide redeployment plan scheduled for the end

of March 1993. Therefore, until the plant-wide plan was

finalized, Jarvis's new assignment was uncertain.

Sundstrand also claims that Jarvis was told of his

redeployment early so that he could take advantage of the

early retirement option. In any case, it was clear that

there was a position for Jarvis within the plant.

From among his three choices, Jarvis eventually

elected to take early retirement. As of March 1, 1993,

Jarvis was no longer employed by Sundstrand. 

On September 24, 1993, Jarvis commenced this action

under the Age Discrimination in Employment Act (ADEA), 29
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U.S.C. §§ 621-634 (1988 & Supp. IV 1992). Jarvis claimed

he had been constructively discharged on account of his

age and that Sundstrand's actions were willful, entitling

him to liquidated damages. On March 21, 1996, the jury

returned a verdict in Jarvis's favor. Sundstrand moved

for j.a.m.l. On June 21, 1996, the district court granted

Sundstrand's motion for j.a.m.l. only with respect to the

jury's finding of willfulness, but concluded that the

evidence was legally 
Jarvis also argues that the district court's partial grant of j.a.m.l. was

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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

Sundstrand's post-verdict j.a.m.l. motion was improperly granted on a ground not

preserved prior to the verdict. See Hurst 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 50-86 (2d ed. 1994)); Lambert v. Genesee

Hosp., 10 F.3d 46, 54 (2d Cir. 1993) (specificity requirement puts nonmovants on

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

not produced any evidence, certainly not any sufficient evidence, by

which a reasonable jury could return a verdict in favor of Plaintiff. In

fact, Plaintiff has shown no evidence beyond Plaintiff's own personal

belief that age discrimination was a factor to support his claim that age

played any part whatsoever in his termination.

Trial Tr. at 218, reprinted in Appellant's App. at 105.

The district court did not abuse its discretion in finding that the j.a.m.l. grounds

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sufficient for the jury to find that age motivated

Sundstrand's decision to redeploy Jarvis and that Jarvis

was constructively discharged. Jarvis appeals and

Sundstrand cross-appeals.

II.

On appeal, Jarvis argues that the district court

erred by concluding that the evidence at trial was not

legally sufficient for a reasonable jury to find that

Sundstrand's conduct was willful. We disagree. 4
were fairly raised in the pre-verdict motion. See Hurst, 82 F.2d at 237 (standard of

review). First, Jarvis does not 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 the technical

precision which 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 the

[j.a.m.l.] motion so long as the trial court is aware of the movant's position." (quotation

omitted)).

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The district court properly concluded that the

evidence at trial was legally insufficient for a

reasonable jury to find that Sundstrand's conduct was

willful. 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

one, whether there is sufficient evidence to

support a jury verdict. This court must analyze

the evidence in the light most favorable to the

prevailing party and must not engage in a

weighing or evaluation of the evidence or

consider questions of credibility. We have also

stated that to sustain a motion for [j.a.m.l.],

all the evidence must point one way and be

susceptible of no reasonable inference

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 an

award of liquidated damages under the ADEA. See 29

U.S.C. § 626(b) (1988 & Supp. IV 1992). The Supreme

Court has defined "willful" in this context to mean "that

the employer either knew or showed reckless disregard for
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the matter of whether its conduct was prohibited by the

statute." Hazen Paper Co. v. Biggins, 507 U.S. 604, 617

(1993) (reaffirming the standard adopted in Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 128-29 (1985));

see also Grover v. McDonnell Douglas Corp., 12 F.3d 845,

848-49 (8th Cir. 1994). However, "[l]iquidated damages

are not warranted merely because an employer knows that

the ADEA may be 'in the picture' when an older employee

is discharged." 
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Rademaker v. Nebraska, 906 F.2d 1309, 1313 (8th Cir.

1990) (quoting Thurston, 469 U.S. at 127-28).

Evidence was presented upon which a finding could be

made that Sundstrand knew that the ADEA may be "in the

picture" when it selected Jarvis for redeployment.

Jarvis testified that he "kind of jokingly--not 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 the

ADEA was "in the picture" does not warrant an award of

liquidated damages. See Rademaker, 906 F.2d at 1313;

Grover, 12 F.3d at 849. Only a showing that Sundstrand

either knew or showed reckless disregard for the matter

of whether its conduct was prohibited by the ADEA can

warrant such an award. See Hazen, 507 U.S. at 616-17. 

Evidence was also presented upon which the jury could

have based a finding that Sundstrand willfully considered

Jarvis's age in its treatment of Jarvis. See Trial Tr.

at 195, 204 (reading to the jury Haynes's deposition

testimony which acknowledged that Jarvis's age entered

into Haynes's decision), reprinted in Appellant's App. at

82, 91. However, although that willful act violated the

ADEA, that is not the same as a willful violation of the

statute. "[I]n order that the liquidated damages be

based on evidence that does not simply duplicate that

needed for the compensatory damages, there must be some

additional evidence of the employer's reckless

disregard." Williams v. Valentec Kisco, Inc., 964 F.2d

723, 729 (8th Cir. 1992) (quotations and citations

omitted); cf. Grover, 12 F.3d at 849 ("A violation of the

ADEA does not require any particular mental state, but
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the award of liquidated damages under the ADEA does.").

No additional evidence was presented, beyond that

required to prove the underlying discrimination, upon

which a finding of wilfulness could be based.

After reviewing the trial record, we conclude that

evidence was not submitted to the jury that Sundstrand

knew or recklessly disregarded the possibility that its

actions toward Jarvis would violate the ADEA. 
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III.

In its cross-appeal, Sundstrand argues that the

district court erred by concluding that the evidence at

trial was legally sufficient for a reasonable jury to

find that age was the motivating factor in Sundstrand's

decision to redeploy Jarvis and that Jarvis was

constructively discharged. We disagree.

The district court properly concluded that sufficient

evidence supports the jury's finding that age was the

motivating factor in Sundstrand's decision to redeploy

Jarvis and that Jarvis was constructively discharged. As

discussed above, the standard for granting a motion for

j.a.m.l. is high. Here, although Jarvis may not have the

strongest case of age discrimination, it cannot be said

that all the evidence points in Sundstrand's favor and is

susceptible of no reasonable inference sustaining

Jarvis's position. See White, 961 F.2d at 779 (standard

of review).

The evidence on which reasonable jurors could have

relied to conclude that age was the motivating factor in

the decision to redeploy Jarvis and that Jarvis was

constructively discharged includes: (1) Haynes's

deposition testimony in which he acknowledged that

Jarvis's age entered into Haynes's decision, Trial Tr. at

195, 204, reprinted in Appellant's App. at 82, 91; (2)

inferences from the timing of events, particularly the

offer of early retirement and Jarvis's selection for

redeployment; (3) inferences from the fact that

Sundstrand could not tell Jarvis what position in the

factory he was being redeployed to or what pay rate he
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would receive; and (4) inferences from the parallels in

treatment between Jarvis and Ed Stout, another Sundstrand

employee who declined early retirement, was chosen for

uncertain redeployment, and then chose to accept early

retirement.

Of this evidence, the most direct evidence on which

a reasonable jury could have chosen to rely was Haynes's

deposition testimony. The jury was read the following

excerpt:
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"Question: So have we covered all of the

reasons then why Mr. Jarvis was chosen to be the

one to let go from operations planning?

"Answer: As far as I'm concerned.

. . . "He being the oldest one in the

operations planning department, did that enter

into your decision?

"Correct.

"He being the only one eligible for early

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 apparent

admission was a typographical error. Id. at 195,

reprinted in Appellant's App. at 82. Considering the

context of the statement, Haynes's explanation is

plausible. 

However, in analyzing the evidence, this Court must

not consider questions of credibility or engage in

weighing or evaluating the evidence. See White, 961 F.2d

at 779. The fact remains that Haynes's deposition

testimony constitutes evidence for a reasonable jury to

find that Sundstrand was motivated by Jarvis's age.

This, together with the reasonable inferences that could

be drawn from other evidence, allowed the district court

to conclude properly that the evidence at trial was

legally sufficient for a jury to find that age was the

motivating factor in Sundstrand's decision to redeploy Jarvis

and that Jarvis was constructively discharged.
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IV.

Accordingly, the judgment of the district court is

affirmed.
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A true copy.

Attest:

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