UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-60697

__________________

PEGGY WOODHOUSE,

Plaintiff-Appellee,

versus

MAGNOLIA HOSPITAL,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Northern District of Mississippi

______________________________________________

August 6, 1996

Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Magnolia Hospital ("Magnolia") appeals from a judgment

awarding Peggy Woodhouse ("Woodhouse") damages and reinstatement on

her claim of age discrimination arising from a reduction in force

("RIF"). Magnolia raises issues concerning the sufficiency of the

evidence, the award of liquidated damages, the jury instructions,

and the district court's order of reinstatement. We affirm.

BACKGROUND

Woodhouse, who was fifty-three years old at the time of her

discharge, had been employed by Magnolia for two separate periods

totalling twenty-three years. Woodhouse, a registered nurse,
1 Magnolia's administrator, Gary Blan, and its four vicepresidents comprised the administrative staff. 

2 There is no dispute that Woodhouse's position has never been

reactivated, and that her duties have been divided among other

employees since the RIF.

2

served as Magnolia's Director of Admissions for fourteen years

preceding her termination. 

During 1993, Magnolia alleged that it lost approximately $1.2

million in operating revenue, and the Board of Trustees decided to

eliminate sixty-one full-time positions based on the recommendation

of Magnolia's administrative staff.1 The administrative staff

selected the positions to be eliminated, and the head of each

department inserted the names of the employees who held that

position. Woodhouse's position as Director of Admissions within

the business office was chosen for elimination. Because she was

the only employee occupying that position, Woodhouse was discharged

on January 24, 1994.2 In November 1994, Woodhouse applied for a

clinical nursing position at Magnolia. Magnolia did not rehire

Woodhouse, ostensibly because she had not been involved in clinical

nursing services for fourteen years. 

Woodhouse subsequently sued Magnolia under the ADEA, 29 U.S.C.

§§ 621-634, alleging that Magnolia discharged her and denied her a

clinical nursing position because of her age. The jury awarded

Woodhouse $50,700 in back pay and $50,700 in liquidated damages.

The district court further ordered that Woodhouse be reinstated to

Magnolia's staff. Magnolia timely appealed.
3 Although McDonnell Douglas is a Title VII case, we have

previously held that its framework is applicable to ADEA cases.

See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n.4 (5th Cir.

1993). The framework involves a burden-shifting analysis: (1) the

plaintiff must demonstrate a prima facie case of discrimination;

(2) the burden of production shifts to the employer to establish a

legitimate and nondiscriminatory basis for the adverse employment

decision; and (3) the plaintiff must then prove by a preponderance

3

DISCUSSION

I. Sufficiency of the Evidence

Magnolia initially asserts that the district court erred in

denying its motion for judgment as a matter of law. Jury verdicts

are tested for sufficiency under the standard articulated in Boeing

Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969). See Rhodes

v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc).

A motion for judgment as a matter of law should be granted only

"[i]f 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." Boeing, 411 F.2d at 374.

A conflict in substantial evidence must exist to give rise to a

jury question. Id. at 374-75.

A plaintiff may use either direct or circumstantial evidence

to prove intentional discrimination. See Portis v. First Nat'l

Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994).

Direct evidence is evidence that, if believed, proves the fact of

intentional discrimination without inference or presumption. Id.

at 328-29. Absent direct evidence, a plaintiff may prove age

discrimination under the framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36

L. Ed.2d 668 (1973).

3 In a RIF case, a prima facie case is
of the evidence that the employer's proffered reason is pretext.

McDonnell Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824-25;

Portis, 34 F.3d at 328 n.7.

4

established by evidence that (1) the plaintiff is within the

protected age group under the ADEA; (2) he or she was adversely

affected by the employer's decision; (3) he or she was qualified to

assume another position at the time of the discharge or demotion;

and (4) evidence, either circumstantial or direct, from which a

factfinder might reasonably conclude that the employer intended to

discriminate in reaching its decision. Nichols v. Loral Vought

Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996); Molnar v. Ebasco

Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993); Thornbrough

v. Columbus & Greenville R.R. Co., 760 F.2d 633, 642 (5th Cir.

1985).

Although Magnolia argues that Woodhouse failed to make out a

prima facie case of age discrimination, this is not the correct

focus of our review. When a case has been fully tried on the

merits, the adequacy of the showing at any stage of the McDonnell

Douglas framework is unimportant; rather, the reviewing court must

determine whether there was sufficient evidence from which a

reasonable trier of fact could have concluded that age

discrimination occurred. Weaver v. Amoco Prod. Co., 66 F.3d 85, 87

(5th Cir. 1995); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144,

149 (5th Cir. 1995), cert. denied, U.S. , 116 S. Ct. 709, 133 L.

Ed.2d 664 (1996). To make this determination, we must examine the

sufficiency of both the direct and circumstantial evidence to

support the jury verdict that the employer used age as a
5

determinative factor in making the adverse employment decision.

See Rhodes, 75 F.3d at 993-94. Although age need not be the sole

reason for the adverse employment decision, it must actually play

a role in the employer's decisionmaking process and have a

determinative influence on the outcome. Id. at 994 (citing Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706, 123

L. Ed.2d 338 (1993)). 

There is no dispute that Woodhouse was discharged as a result

of a RIF. The parties, however, disagree about the necessity of

the RIF and the motive for Woodhouse's discharge. Although several

witnesses testified that the $1.2 million loss was a significant

financial setback for the hospital, a former assistant

administrator called by Woodhouse, Robert Barrett, testified that

revenue was higher in 1993 than in 1992. Barrett admitted,

however, that the $1.2 million loss was quite substantial.

Furthermore, Woodhouse also presented evidence that the hospital

subsequently rehired more employees than it had laid off: at the

time of the RIF, Magnolia had approximately 705 employees, while at

the time of trial, the hospital employed 741 individuals. Two

witnesses, who had also been discharged, testified that Magnolia

called them back to work within two days of the RIF. 

Although a reasonable jury could conclude that the RIF was a

ruse to terminate old or unwanted employees, it was not essential

that the jury make such a determination in order for it to conclude

that Magnolia discriminated against Woodhouse on the basis of her

age. "[T]he ADEA does not require that an employer prove that it

is in fact losing money before it can take a nondiscriminatory and
6

legitimate course of action to make more." Armendariz, 58 F.3d at

152. And it is clear that the employer's adverse financial

condition will render the discharge not inherently suspect.

Thornbrough, 760 F.2d at 642. 

Instead, what is suspicious in reduction-in-force cases

is that the employer fired a qualified, older employee

but retained younger ones. If we focus not on why

employees, in general, were discharged . . . but instead

on why the plaintiff rather than another employee was

discharged, the discharge of an older employee rather

than a younger one is initially unexplained. Under these

circumstances, requiring the employer to articulate

reasons for his decision to fire the plaintiff is

appropriate. 

Id. Thus, the crucial inquiry involves Magnolia's proffered

reasons why Woodhouse was chosen for termination and why it refused

to rehire her as a clinical nurse. 

In the instant cause, Woodhouse presented evidence that Dr.

Tommy Alexander, Chairman of Magnolia's Board of Trustees and a

practicing gynecologist, and Vicky Franks, an employee in the

business office who was also terminated, discussed the impending

terminations two weeks before the RIF. According to Franks,

Alexander advised her that Magnolia was planning to lay off the

"older employees." Eight months later, Franks called Alexander and

surreptitiously taped a subsequent conversation. The tape

contained the following admission:

FRANKS: You know back in January when I came in for my

pap smear . . . . [A]nd I told you I thought I was

having stress headaches from being worried about being

laid off, and you said, don't worry about being laid off,

you're not gonna get laid off. They're gonna lay off

those old people and the people that needed done beenSQ

ALEXANDER: That's what they told me. 

At trial, Alexander testified that he did not remember making the
4 See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166

(5th Cir. 1993) (statement that a younger person could do faster

work and reference to plaintiff as an "old fart" insufficient to

establish age discrimination); Turner v. North Am. Rubber, Inc.,

979 F.2d 55, 59 (5th Cir. 1992) (comment that plaintiff was being

sent "three young tigers" to assist with operations was

insufficient to show discrimination because the comments were vague

and too remote in time); Guthrie v. Tifco Indus., 941 F.2d 374,

378-79 (5th Cir. 1991), cert. denied, 503 U.S. 908, 112 S. Ct.

1267, 117 L. Ed.2d 495 (1992) (outgoing president's comment that

7

statement and that no one ever told him Magnolia was planning to

discharge older employees. 

Despite Alexander's contention that he did not remember making

the statement, the jury was entitled to believe that Alexander told

Franks that the hospital intended to discharge older employees

through the RIF. See Ray v. Iuka Special Mun. Separate Sch. Dist.,

51 F.3d 1246, 1251 (5th Cir. 1995) (noting that assessment of the

credibility of witnesses is a jury function); Boeing, 411 F.3d at

375 ("[I]t is the function of the jury as the traditional finder of

the facts, and not the Court, to weigh conflicting evidence and

inferences, and determine the credibility of the witnesses."). 

Magnolia asserts that Alexander's statement is insufficient to

raise a jury issue on age discrimination because it was merely a

stray remark. See Armendariz, 58 F.3d at 153 (concluding that

remarks that are vague or remote in time will not support an age

discrimination claim). In contrast to the various cases cited by

Magnolia, Alexander's statement was neither remote in time nor

vague. He admitted on tape that he told Franks in January that

"[t]hey're gonna lay off those old people." The RIF occurred on

January 24, 1994. The remark was more direct than any of the

comments in the cases Magnolia cites4SQit specifically indicated
the new president "need[ed] to surround himself with people his

age" insufficient to establish age discrimination); Elliot v. Group

Medical & Surgical Serv., 714 F.2d 556, 565 (5th Cir. 1983), cert.

denied, 467 U.S. 1215, 104 S. Ct. 2658, 81 L. Ed.2d 364 (1984)

(employer's statement that he wanted "new blood" and a "lean and

mean team" did not show age discrimination). 

8

that Magnolia intended to use age as a factor in its decision of

which positions to eliminate. We refuse to hold that this

statement is insufficient to raise a jury issue on age

discrimination. 

Magnolia argues that Alexander was not involved in the

decision concerning which positions would be eliminated because the

Board had delegated that responsibility to the administrative

staff. See Nichols, 81 F.3d at 40-41 (concluding that allegedly

discriminatory remarks are not probative unless they are made by

the relevant decisionmaker). Although Magnolia asserts that

Alexander had no role in the decision, the evidence indicates that

the Board developed the parameters of the RIF, and the

administrative staff then made the final policy concerning which

positions would be eliminated. Prior to implementing the RIF, a

final report was made to the Board which outlined the positions to

be eliminated and the employees to be discharged. Thus, Alexander

was involved in the RIF decision, even though he was not involved

in the specific determination of who would be discharged. 

Magnolia further points to the fact that the "they" alluded to

in Alexander's statement, "that's what they told me," were never

identified. The inability to identify these individuals does not

compel the conclusion that the jury could assign no probative

weight to the statement. See Ray, 51 F.3d at 1250 & n.1 (witness
9

testified that an unidentified school board member made the comment

that the board would not rehire the plaintiff because he had filed

an EEOC claim against the district). The jury could reasonably

infer that "they" referred to the administrative staff, which was

accountable to the Board and to whom the Board had delegated the

responsibility for determining the positions to be eliminated,

given that all evidence indicated that they were the persons

directly involved in the elimination decision. See Boeing, 411

F.2d at 374 (court should consider the evidence and all reasonable

inferences that may be drawn from it).

Magnolia does not argue that Alexander's statement was

inadmissible; rather, it merely asserts various reasons why the

statement should be discounted or discredited. These arguments are

more suitably made to the jury because it is charged with weighing

the evidence. Id. at 375. The jury was presented conflicting

evidence on this issue; the jury apparently chose to believe that

Alexander made the statement and that Magnolia intended to use age

as one criteria in its discharge decision. We conclude that the

jury could properly consider the statement as evidence that

Magnolia intentionally discriminated against Woodhouse because of

her age. 

Evidence was also presented that Magnolia developed a new

policy for the RIF, rather than rely on the policy outlined in its

employee handbook. Benny Brewster, one of the administrators

involved in the elimination decision, conceded that the list of job

titles could be manipulated to allow Magnolia to discharge any

employee simply by eliminating his or her position; he denied,
5 At trial, Brewster testified that the administrators decided

what positions would be eliminated and that he had been mistaken in

stating during the deposition that the department heads were

consulted. The jury, of course, was not required to believe that

Brewster was mistaken when he testified that the policy envisioned

that the department heads would be consulted before the final

termination decisions were made. 

10

however, that the administrative staff engaged in such manipulation

in order to terminate old or unwanted employees. Despite

Magnolia's assertion that the evidence established that the new

policy envisioned that the elimination decision would be made

solely by the administrators without consulting the department

heads, Brewster testified by deposition that the administrators

reviewed the elimination decision with each department head to

"insure that what we were presenting to them was, I guess, the best

way to do it, or these particular jobs going to be eliminated. If

they agreed to it, they assigned the people to that position."5 He

also admitted that the department heads would be more aware than

the administrators of whether a position was necessary to the

hospital.

Contrary to Brewster's deposition testimony, Jerry Knighton,

Woodhouse's department head, testified that he was never consulted

about the decision to eliminate her position as Director of

Nursing. Knighton stated that Woodhouse's position was necessary,

and that if he had been consulted he would have advised the

administrators not to eliminate her position. Interestingly,

Magnolia was unable to clearly identify either the person who made

the decision to eliminate Woodhouse's position or the process by

which Woodhouse's position was chosen for elimination.
11

Woodhouse also points to evidence that she was not rehired as

a clinical nurse after her termination even though Magnolia had

hired seventy-six nurses by the time of the trial. Magnolia

presented evidence at trial that it refused to employ Woodhouse

because she had not been a clinical nurse for fourteen years and

had taken no refresher courses in the interim. No one at Magnolia

ever informed Woodhouse that she needed to take a refresher course

if she wanted employment as a clinical nurse. According to

Magnolia's witness, Linda Whitenton, the Director of Nursing

Services, Woodhouse was not qualified to serve as a clinical nurse

because she lacked recent experience. Whitenton testified that the

Mississippi Board of Nursing required that Woodhouse take a

refresher course in clinical nursing. When asked where this

requirement was found in the state statutes, Whitenton stated that

it was found in a nursing newsletter. 

In rebuttal, Woodhouse testified that the refresher course

requirement only pertained to nurses who did not have a current

license. At the time Woodhouse applied for a nursing position, she

had a valid license. A recent graduate of a nursing school

testified that she had never heard of the refresher requirement and

had been taught that a nurse would be able to practice "as long as

you kept up your license and had hours in either supervisory

positions or position as a floor nurse." Alexander, Brewster, and

at least one nurse also testified that they knew of no reason why

Woodhouse could not be hired as a clinical nurse. See Thornbrough,

760 F.2d at 642 (plaintiff can show discrimination in a RIF case by

establishing, inter alia, that she was qualified to assume another
6 Magnolia argues that even if the motion for judgment as a

matter of law was properly denied, the verdict is so against the

great weight of the evidence that a new trial must be granted. See

Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930-31 (5th Cir.

1982). A district court's denial of a motion for new trial is

reviewed only for an abuse of discretion. Id. at 930. Examining

the propriety of the denial under the three factors outlined in

Shows, it is clear that the district court did not abuse its

discretion. The issues here were relatively simple, the evidence

was disputed, and there were no pernicious or undesirable

occurrences at trial. See id. at 930-31. We conclude that the

district court correctly denied the motion for new trial.

12

position at the time of discharge). Woodhouse also presented

evidence that none of the nurses hired were her age or older.

Thus, conflicting evidence was introduced on the issue of whether

the refusal to rehire Woodhouse was based on her qualifications.

The jury was thus entitled to find that the refresher requirement

was a pretext for discrimination. See Rhodes, 75 F.3d at 994

(noting that "[i]n tandem with a prima facie case, the evidence

allowing rejection of the employer's proffered reasons will often,

perhaps usually, permit a finding of discrimination without

additional evidence"). 

The evidence was hotly disputed in this case. Woodhouse

presented much more than a scintilla of evidence to support her age

discrimination claim. In this instance, the case was properly

submitted to the jury, which weighed the evidence and found against

Magnolia. After reviewing the evidence under the standard

articulated in Boeing, 411 F.2d at 374-75, we conclude that the

district court properly denied Magnolia's motion for judgment as a

matter of law.6 

II. Liquidated Damages 

Magnolia contends that the evidence was insufficient to
13

support the jury's determination that Magnolia willfully violated

the ADEA. The ADEA permits the award of liquidated damages only in

cases where a willful violation has occurred. See 29 U.S.C. §

626(b). A violation is willful if "the employer either knew or

showed reckless disregard for the matter of whether its conduct was

prohibited by the ADEA." Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 128, 105 S. Ct. 613, 625, 83 L. Ed.2d 523 (1985); see

Powell v. Rockwell Int'l Corp., 788 F.2d 279, 285 (5th Cir. 1986).

Recognizing that because "employers are required to post ADEA

notices, it would be virtually impossible for an employer to show

that he was unaware of the Act and its potential applicability,"

the Supreme Court rejected the contention that mere awareness of

the ADEA made a violation willful. Trans World, 469 U.S. at 128,

105 S. Ct. at 625. 

The Supreme Court has recently clarified when liquidated

damages are not recoverable:

It is not true that an employer who knowingly relies on

age in reaching its decision invariably commits a knowing

or reckless violation of the ADEA. The ADEA is not an

unqualified prohibition on the use of age in employment

decisions, but affords the employer a "bona fide

occupational qualification" defense . . . and exempts

certain subject matters and persons . . . . If an

employer incorrectly but in good faith and nonrecklessly

believes that the statute permits a particular age-based

decision, then liquidated damages should not be imposed.

Hazen Paper Co. v. Biggins, 507 U.S. 604, 616, 113 S. Ct. 1701,

1709, 123 L. Ed.2d 338 (1993). Contrary to Magnolia's contention

that aggravating factors are necessary to recover liquidated

damages, the Supreme Court apparently does not require the presence

of such factors. Rather, liquidated damages are not recoverable
14

only if there is evidence that the intentional violation of the

ADEA was based on the employer's good-faith, albeit mistaken,

belief that the statute allowed an age-based decision. See Trans

World, 469 U.S. at 129-30, 105 S. Ct. at 625-26 (holding employer

not liable for liquidated damages because it reasonably and in good

faith attempted to determine whether its policy would violate the

ADEA). 

In the instant cause, Alexander admitted that he had been

informed that age would be used as one factor in determining which

positions would be eliminated. Alexander's admission is some

evidence that Magnolia acted in willful violation of the ADEA. See

Weaver, 66 F.3d at 88 (taped conversation wherein supervisor agreed

with plaintiff's comment that "a guy who is my age doesn't have

much future left" sufficient to support the jury's determination

that the employer willfully violated the ADEA). Woodhouse also

introduced evidence concerning how Magnolia's RIF policy could be

manipulated so that positions held by older employees could be

selected for elimination. Finally, the jury had evidence before it

that the procedure to be used in the RIF was not followed in the

decision to discharge Woodhouse. 

Based on the forgoing evidence, a jury could conclude that

Magnolia acted willfully in terminating Woodhouse. Magnolia

offered no evidence that it reasonably believed in good faith that

the ADEA permitted an age-based decision on the selection of

positions for elimination. Hazen, 507 U.S. at 616, 113 S. Ct. at

1709; Trans World, 469 U.S. at 129, 105 S. Ct. at 625. The

district court did not err in awarding Woodhouse liquidated
7 The instruction stated that Woodhouse must prove by a

preponderance of the evidence that (1) the reason given for her

dischargeSQi.e., the elimination of her job as part of a

substantial reduction in force because of financial problemsSQwas

false; (2) Woodhouse's age was the real reason for her discharge;

and (3) her job in its various parts continued in existence after

her termination.

15

damages.

III. Jury Instruction

Magnolia asserts that the district court erroneously refused

its requested instruction on the issue of the burden Woodhouse must

satisfy to prevail on her discrimination claim. Magnolia's

proffered instruction informed the jury that Woodhouse had to prove

three elements in order to succeed on her claim of age

discrimination.7 The district court denied the instruction, and

presented the issue to the jury as: "Do you find that plaintiff has

proven by a preponderance of the evidence that age was a

determining factor in the decision of defendant to terminate her?"

A district court is accorded considerable latitude in

fashioning jury instructions, and will be reversed only when the

charge, as a whole, leaves the reviewing court with substantial and

ineradicable doubt whether the jury has been properly guided in its

deliberations. Horton v. Buhrke, a Div. of Klein Tools, Inc., 926

F.2d 456, 460 (5th Cir. 1991). We have previously held that in age

discrimination cases, "the court should instruct the jury to

consider the ultimate question of whether defendant terminated

plaintiff because of his age," and that it is improper to instruct

the jury on the elements of the prima facie case. Walther v. Lone

Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992). The crucial issue
16

in an ADEA case involves whether the employer used age as a

determinative factor in making the employment decision. Rhodes, 75

F.3d at 993-94. Because the district court instructed the jury

that Magnolia could be held liable only if age was a determining

factor in its termination decision, it correctly stated the law in

this Circuit. We find no error in the district court's denial of

Magnolia's proffered instruction. 

IV. Reinstatement

Magnolia contends that the court erred in ordering Woodhouse's

reinstatement because her position as Director of Admissions has

been permanently eliminated and she is not qualified to serve as a

clinical nurse. A district court's decision whether to reinstate

or award front pay is reviewed only for an abuse of discretion.

Weaver, 66 F.3d at 88. Although reinstatement is the preferred

remedy for a discriminatory discharge, front pay may be awarded if

reinstatement is not feasible. Deloach v. Delchamps, Inc., 897

F.2d 815, 822 (5th Cir. 1990). 

Magnolia correctly asserts that Woodhouse cannot be reinstated

to her former position because it no longer exists. See Ray, 51

F.3d at 1255 (concluding that front pay was appropriate where

plaintiff's former position no longer existed). Although Magnolia

contends that Woodhouse is unqualified to fill an available

clinical nursing position, the district court found against

Magnolia on this point:

Although, the plaintiff's previous position has

technically been eliminated, the evidence at trial

clearly indicated that she was qualified to maintain a

variety of jobs with the defendant, most notable as a

registered nurse.
17

Order at 2 (emphasis added). Magnolia has presented no other

evidence that rehiring Woodhouse as a clinical nurse would be

infeasible. See Deloach, 897 F.2d at 822 (determining that

reinstatement was not feasible where it would cause morale problems

and disrupt other individuals' employment); Cassino v. Reichhold

Chems., Inc., 817 F.2d 1338, 1346 (9th Cir. 1987), cert. denied,

484 U.S. 1047, 108 S. Ct. 785, 98 L. Ed.2d 870 (1988) (noting that

reinstatement is not feasible where a hostile relationship exists

or where there is no position available). 

Woodhouse specifically requested that she be reinstated to a

clinical nursing position. At the time of trial, Magnolia had

eleven such positions vacant. Moreover, the district court

indicated that the parties were not precluded from negotiating an

award of front pay instead of reinstatement. Given this Court's

recognition of reinstatement as the preferred remedy, we conclude

that the district court did not abuse its discretion in ordering

Woodhouse's reinstatement.

CONCLUSION

Based on the foregoing, we affirm the judgment of the district

court.