United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1832

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Vernon E. Spencer,

Appellee,

v.

Stuart Hall Company, Inc., a

Missouri corporation; Newell

Company, a Delaware corporation,

Appellants.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: November 18, 1998

 Filed: April 12, 1999

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Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

Vernon Spencer received a favorable jury verdict on the age discrimination

claim he brought against Stuart Hall Company, Inc., and Newell Company

(collectively Stuart Hall) after he was terminated during a reduction in force (RIF).
1The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri.

2Stuart Hall manufactures paper products such as school and office supplies. 

 Newell Company bought Stuart Hall in 1992.

2

Stuart Hall appeals from the district court’s1 denial of its motion for judgment as a

matter of law (JAML). We affirm.

I.

Because this is an appeal from the denial of a motion for JAML, we consider

the facts in the light most favorable to the winning party, construing any ambiguities

and making any reasonable inferences in favor of the verdict. See Ballard v. River

Fleets, Inc.,149 F.3d 829, 831 (8th Cir. 1998). Viewed in this light, the relevant facts

are as follows.

Spencer worked for Stuart Hall2 for 25 years, most recently as a production

supervisor. In May 1995, Wal-Mart canceled a large order, costing Stuart Hall 40

percent of its sales. Within a month, Stuart Hall shut down its third shift, laying off

100 of 325 production workers and 3 of 10 production supervisors. Gordon Kirsch,

Vice-President of Manufacturing, was responsible for the final layoff decision

regarding the supervisors, with input from Ed Schweikhardt and Ernie Mautino, two

plant managers. In addition to the three supervisors originally laid off, Stuart Hall

terminated a fourth supervisor, Jim Wallace, a week after the layoff. Stuart Hall laid

off one supervisor from each of the three production lines, though it claims that it laid

off supervisors by comparing all ten and laying off the four worst performers (Stuart

Hall contends that Wallace was part of the RIF). Spencer, age 54 at the time of the

layoff, was on the envelope line. The envelope line supervisors who were not laid off

were Don Ponak, age 38, and Brett Broadaway, age 33. 
3Stuart Hall evaluated its employees on a six-level rating system: exceptional,

outstanding, good, competent, provisional, and unsatisfactory.

3

Stuart Hall claimed that it based its layoff decision on each supervisor's two

most recent performance evaluations. Spencer had two "provisional" ratings;3

according to Stuart Hall, no other supervisor had ratings as low as Spencer did.

Though Stuart Hall claimed that Ponak had only one provisional rating, there was

evidence that he actually had two provisional ratings and that Stuart Hall failed to

produce the evaluation from that rating, using a less recent rating of "good" in its

place. Two of the three supervisors who were laid off were over age 40 and were the

oldest of all the supervisors; the third laid off supervisor was age 29.

Spencer brought this age discrimination claim under the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994). The district court

initially granted Stuart Hall's motion in limine and excluded evidence of statements

allegedly made by prior managers indicating age bias. However, the district court

reversed its ruling during trial and admitted the evidence. The jury returned a verdict

in favor of Spencer, finding that Stuart Hall's actions were willful. The district court

awarded Spencer back pay of $39,573, front pay of $12,499, liquidated damages of

$39,573, and attorney's fees and costs of $57,607. Stuart Hall moved for JAML, or

in the alternative, for a new trial. The district court denied Stuart Hall’s motion and

Stuart Hall now appeals.

II.

We review de novo the denial of a motion for JAML, applying the same

standards applied by the district court. See Ballard, 149 F.3d at 831. In so doing, we

must "(1) resolve direct factual conflicts in favor of [Spencer]; (2) assume as true all

facts supporting [Spencer] which the evidence tended to prove; (3) give [Spencer] the

benefit of all reasonable inferences; and (4) affirm the denial of the motion if the
4

evidence so viewed would allow reasonable jurors to differ as to the conclusions that

could be drawn.” Id. (citation and internal quotations omitted).

A. Violation of the ADEA

An ADEA claim can arise either as a pretext claim, as a mixed motives claim,

or as a RIF claim. Each type of ADEA claim has slightly different elements. Cf.

Bevan v. Honeywell, Inc., 118 F.3d 603, 609 n.1 (8th Cir. 1997). To prove his RIF

claim, Spencer must show that: (1) he was within the protected class (over age 40);

(2) his performance met his employer's legitimate expectations; (3) he was

discharged; and (4) there was an additional showing of age as a factor in the

discharge decision. SeeCramer v. McDonnell Douglas Corp., 120 F.3d 874, 876 (8th

Cir. 1997). Our focus in an appeal from the denial of a JAML motion following a

jury verdict is whether Spencer met his ultimate burden of showing intentional age

discrimination, which requires more than merely discrediting Stuart Hall’s proffered

reason for the adverse employment decision. Spencer must also prove that the

proffered reason was a pretext for age discrimination. See Nelson v. Boatmen's

Bancshares, Inc., 26 F.3d 796, 801 (8th Cir. 1994). 

The evidence at trial presented two possible scenarios regarding the RIF

decisional process. Stuart Hall claims that it laid off the four worst performing

supervisors. There was also evidence, however, that only three supervisors were laid

off as part of the RIF, one from each of the three production lines. Kirsch, Mautino,

and Schweikhardt all changed their testimony at trial from the testimony they gave

during depositions and through affidavits. Kirsch testified during his deposition that

he first ranked the ten supervisors according to their two most recent performance

evaluations (Spencer was ranked worst) and that he then discussed each supervisor's

performance with Mautino and Schweikhardt to confirm that Spencer was in fact the

worst of the ten. Mautino and Schweikhardt corroborated this testimony in their

summary judgment affidavits. At trial, however, all three changed their stories to say
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that they first met to discuss and rank the managers based on their experiences with

the supervisors and then, after determining that Spencer was the worst, reviewed the

performance evaluations to confirm their initial inclinations. Where conflicting

evidence is presented at trial, it is the jury rather than this court which assesses the

credibility of the witnesses and decides which version to believe. See Curtis v.

Electronics & Space Corp., 113 F.3d 1498, 1502 (8th Cir. 1997). Based on these

inconsistencies, which were brought out during trial, the jury could have discredited

the Stuart Hall managers' testimony and the basis they gave for laying off Spencer.

While we deem it a close call, we conclude that the evidence in this case was

sufficient to support the jury verdict. From all of the evidence, the jury reasonably

could have found that Stuart Hall laid off one supervisor from each of the three

production lines, rather than basing the decision on the overall performance of all ten

supervisors. Spencer was the oldest supervisor in his department with significantly

greater experience and seniority than either Ponak or Broadaway, the other two

supervisors in Spencer's department. Of the three supervisors initially laid off, two

were the oldest of all the supervisors. There was evidence that younger employees

received preferential shift assignments and were not written up for disciplinary

problems similar to those for which Spencer was written up. However, there was also

evidence that older workers were given favorable shift assignments while younger

workers were given unfavorable assignments. We cannot say the evidence points all

one way. 

In addition to this circumstantial evidence of age discrimination, Stuart Hall’s

layoff policy required employees of equal qualifications to be laid off based on

seniority. The performance evaluations used in the layoff decision for Ponak, who

had less seniority than Spencer, were from January 1992 (good) and January 1994

(provisional). Though no evaluation from early 1995 was ever produced for Ponak,

payroll records reflected that Ponak did not receive a raise in February 1995 because
4Stuart Hall argues that even if Ponak and Spencer both had two provisional

ratings, Spencer still would have been laid off because he would still have been one

of the four worst performers. This argument ignores the evidence that Stuart Hall

actually laid off one supervisor from each production line. If the jury believed this

scenario, then Ponak, who was on the same production line as Spencer, would have

been laid off and Spencer would have been retained under Stuart Hall's layoff policy.

The jury is free to choose which story it believes. We will not reweigh or reevaluate

the credibility of the evidence. See Ballard, 149 F.3d at 831.

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of a provisional rating. This evidence, which we must read in the light most favorable

to the verdict, supports a jury finding that Ponak had received two provisional ratings,

as had Spencer, but that Stuart Hall ignored Ponak's most recent provisional rating

to avoid following its seniority based tie breaker layoff policy in order to lay off the

older Spencer.4 We hold that reasonable jurors could differ as to the conclusions to

be drawn from all of the evidence and agree with the district court that the evidence

supports the jury's verdict finding Stuart Hall liable for age discrimination under the

ADEA. 

B. Liquidated Damages Under the ADEA

 

An improperly dismissed employee is entitled to a double recovery, called

liquidated damages, if he proves that his employer willfully violated the ADEA. See

29 U.S.C. § 626(b). The standard for proving willfulness "is simply whether 'the

employer either knew or showed reckless disregard for the matter of whether its

conduct was prohibited by the statute.'" See Brown v. Stites Concrete, Inc., 994 F.2d

553, 559 (8th Cir. 1993) (en banc) (quoting Hazen Paper Co. v. Biggins, 507 U.S.

604, 617 (1993)). This showing does not require any heightened quantum or quality

of evidence beyond that already established as long as all the evidence satisfies the

distinct standard for willfulness. Id. at 560. "A violation of the ADEA does not

require any particular mental state, but the award of liquidated damages under the
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ADEA does." Glover v. McDonnell Douglas Corp., 12 F.3d 845, 849 (8th Cir.), cert.

denied, 511 U.S. 1070 (1994). 

The ADEA contains two tiers of liability. It awards compensatory damages

when an employer violates the statute and liquidated damages when that violation is

willful. Although the statute was meant to create this two-tiered liability scheme,

Biggins makes clear that our focus is not on ensuring that a heightened evidentiary

requirement keeps the two-tiered scheme intact. Rather, we are only to determine

whether the employer willfully violated the ADEA, thereby exposing the employer

to additional damages. Biggins, 507 U.S. at 616 ("The ADEA does not provide for

liquidated damages 'where consistent with the principle of a two-tiered liability

scheme.' It provides for liquidated damages where the violation was 'willful.'"); see

also Brown, 994 F.2d at 560. For example, liquidated damages are inappropriate

where "an employer incorrectly but in good faith and nonrecklessly believes that the

statute permits a particular age-based decision." Biggins, 507 U.S. at 616. See also

Maschka v. Genuine Parts Co., 122 F.3d 566, 572 (8th Cir. 1997) (finding liquidated

damages appropriate where the employer "presented no evidence that it made its

decision under the erroneous belief that it was entitled to an exception" under the

ADEA); Curtis, 113 F.3d at 1503 (same).

This case is one of those situations where the same evidence--although thin--

that supports liability under the ADEA also supports an award of liquidated damages

for its willful violation. Reading the evidence in the light most favorable to the

verdict, the jury could have found that Stuart Hall decisionmakers ignored Ponak's

second provisional rating in order to justify laying off Spencer, who was older and

had more seniority than Ponak. Though a showing of equal competence followed by

preference for a younger employee does not meet the showing required to establish

an intent to discriminate, see Lewis v. Aerospace Comm. Credit Union, 114 F.3d 745,

749 (8th Cir. 1997), cert. denied, 118 S. Ct. 1392 (1998), Stuart Hall's policy

required that the company make layoff decisions based on seniority with respect to
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equally qualified employees. Additionally, Kirsch discussed whether Spencer's age

would create an Equal Employment Opportunity problem with the Vice President of

Human Resources. It was for the jury to determine whether this evidence weighed

in favor of or against the employer. Compare Nelson, 26 F.3d at 803 ("[T]here was

evidence that Boatmen's was more than merely aware of the ADEA statute. Its

human resources director had both experience with and training in the statute.") with

Glover, 12 F.3d at 849 (rejecting the argument that "because Barbeau had been

briefed about the basic requirements and prohibitions of the ADEA, . . . he must have

committed his violation recklessly."). From this evidence, and the jury's credibility

assessments, the jury was free to find that Stuart Hall took steps to hide its true intent,

knowing, or at least recklessly disregarding, that its actions violated the ADEA. Cf.

Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 640 (8th Cir. 1997) (concluding

that liquidated damages were supported by evidence that an employer acted in such

a way that it would appear that the employer was complying with the ADEA). We

cannot say as a matter of law that no reasonable juror could have returned a verdict

for Spencer on the issue of liquidated damages.

C. Admission of Stray Remarks

Stuart Hall argues that the district court erred in admitting evidence of alleged

"stray remarks" by two former employees. We review a district court's admission of

evidence for a clear abuse of discretion. See Paul v. Farmland Indus., Inc., 37 F.3d

1274, 1277 (8th Cir. 1994), cert. denied, 514 U.S. 1017 (1995). We will only disturb

a jury's verdict if the evidence is so prejudicial that its exclusion would likely produce

a different result in a new trial. Id. 

The "stray remarks" were two different statements allegedly made by John

Rogers and Rick Arentson to Spencer in 1993, to the effect that an older supervisor

was moved to third shift to make room for younger workers coming up. The district

court originally precluded the evidence upon Stuart Hall's motion in limine. During
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trial, however, Stuart Hall's counsel cross-examined Spencer about his theory that

Stuart Hall managers had conspired to fire him because of his age two years before

he was actually laid off. (See Trial Tr. at 140-42.) Spencer's counsel requested a

bench conference, during which the court agreed that Stuart Hall had opened the door

to Rogers' and Arentson's alleged statements and that Spencer's counsel would be

permitted to address the issue on redirect. (See id. at 143-45.) Because the judge was

going to allow the evidence on redirect, Stuart Hall's counsel elicited it during the

resumed cross-examination. Upon receiving Spencer's answer about the younger

employees' remarks, Stuart Hall's counsel introduced evidence that neither Arentson

nor Rogers were involved in the layoff decision because neither was employed by

Stuart Hall at the time of the layoff. Arentson and Rogers both later testified that they

did not make the alleged remarks, that Rogers was not even employed at the time of

his alleged remark, and that neither was employed at the time of the layoff. 

Remarks tending to show age animus that are remote in time and made by

nondecisionmakers are insufficient to establish the "additional showing" of

intentional age discrimination needed to support an age discrimination claim in the

context of a reduction in force. See Walton v. McDonnell Douglas Corp., 167 F.3d

423, 427-28 (8th Cir. 1999). The lack of probativeness will generally support

exclusion of the evidence because it also tends to be highly prejudicial. See Slathar

v. Sather Trucking Corp., 78 F.3d 415, 420 (8th Cir.) (affirming district court's

exclusion of stray remarks by nondecisionmakers that would be quite prejudicial but

provide no evidence of age discrimination), cert. denied, 117 S. Ct. 179 (1996).

However, we do not think that the district court abused its discretion in admitting the

testimony in this case. 

Stuart Hall's counsel repeatedly challenged Spencer's conspiracy theory,

indicating defense counsel's doubt that Spencer's theory was believable. Defense

counsel questioned Spencer's credibility by grilling him about his basis for believing

a conspiracy existed to get rid of him because of his age two years before he was laid
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off. (See Trial Tr. at 142.) Spencer was unable to provide a complete and coherent

answer without referring to Rogers' and Arentson's alleged statements, which he was

under strict orders not to discuss based on the court's in limine ruling. We agree that

Stuart Hall opened the door to the admission of these statements and the district court

acted within its broad discretion by admitting the evidence within the scope of

redirect. See United States v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir.) (evidence

otherwise inadmissable as too prejudicial under Rule 403 may be "admissible to rebut

testimony elicited on cross examination that created a false impression"), cert. denied,

502 U.S. 813 (1991); United States v. Womochil, 778 F.2d 1311, 1317 (8th Cir.

1985) (finding no abuse of district court's discretion in allowing "otherwise

inadmissible evidence on redirect to clarify the issue" when opposing counsel had left

a false impression after cross-examination). The admission of the stray remarks

allegedly made by Rogers and Arentson does not warrant a new trial. 

III.

For the foregoing reasons, we affirm the district court's denial of Stuart Hall's

motion for judgment as a matter of law.

A true copy.

Attest:

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