*1 matter, THE MANDATE SHALL we strike ISSUE As an initial FORTHWITH. dog. It can drug-sniffing evidence of proba in a determination of included
not be is tainted evidence. it too
ble cause because for the warrant stated
The affidavit dog not take the to the U- officers did until after the shopping center
Haul at had and the officers
residence was secured marijuana
knowledge of the inside house. ACREY, Plaintiff-Appellee, Maxine E. presented simply are not
The other facts adequate basis to establish substantial AMERICAN SHEEP INDUSTRY cause existed concluding probable for ASSOCIATION, Corporation, only Grogan residence. The to search the Defendant-Appellant. drugs the state- evidence of were untainted No. 91-1321. concerning the white bowl contain- ments gave Anderson to Joe ing marijuana Mr. Appeals, United States Court of however, no offi- Significantly, Tenth Circuit. Cordova. seeing Mr. testify to agent cer or could Dec. Grogan residence with
Anderson leave the Thus, the excised affidavit white bowl. tending no untainted statements contains drugs with the presence link the Shomo, Compare, e.g.,
Grogan residence. (substantial for find-
ing probable cause to search leaving his home
gun when resident seen gun possession). his hold that the evidence
We therefore as a re- Grogan from the residence
seized should sanitized search warrant
sult of the further con- suppressed. We
have been the admission of the evidence
clude that error. Mr. Salinas’ con-
was not harmless possession, conspiracy, and es-
victions for accord- drug operations are
tablishment
ingly REVERSED.
V. summary, Anderson’s convic- James conspiracy possession and for are
tions for Phillip Cordova’s convictions
REVERSED. possession, and Jon Sali- conspiracy and conspiracy, possession,
nas’ convictions operations, are RE- establishment of REMANDED for further
VERSED gov- to determine whether
proceedings evidence after the
ernment has sufficient defendants.
suppressions retry these *2 * LOGAN, BARRETT, LAY
Before Judges. Circuit LOGAN, Judge. Circuit *3 Sheep Industry Defendant American As- (ASI) appeals judgment sociation from en- following jury tered a verdict in favor of Maxine E. in her action brought Age under the Discrimination in (ADEA), Employment Act 29 U.S.C. 621 § seq. only found not discrimina- et tion but willful violation of the ADEA. $147,000 pay The award included front reinstatement, $76,000 lieu of for willful violation, $55,168, attorneys’ of fees appeals interest. ASI from the district judgment court’s denial of its motion for verdict, notwithstanding alter- native, for new trial. argues appeal did
ASI produce not sufficient evidence to meet (1) proof respects: of in four burden per- satisfactorily establish that (2) finding forming job, support (3) discharge, ASI’s constructive rebut nondiscriminatory articulated business rea- (4) handling plaintiff, for sons its support finding of willfulness. ASI also court erred in al- asserts that the district em- lowing testimony from another former ployee, awarding pay, front reducing damages for award mitigate damages. failure to I Plaintiff was hired in 1984 at manager for the forty-five operations as (ASPC). Sheep Producers Council American twenty years of had had more than She experience, accounting and administrative major including as an auditor with work financial firm as an assistant CPA (Brian Mumaugh M. M. Husband John IT T. II R. 36-37. Her director for & Hart, him, brief) Holland on the & with fi- included responsibilities with ASPC CO, Denver, defendant-appellant. maintenance, nance, accounting, building Trimble, benefits, general operations. Tate, personnel, and II Tate and Penfield W. compu- Denver, (John tenure with ASPC she Nulan, Mosby, Early him CO system, bookkeeping brief), the manual plaintiff-appellee. terized on the Circuit, sitting by designa- Eighth peals Lay, for the Donald P. Senior United *The Honorable Ap- Judge, tion. United States Court States Circuit Therefore, we obtained parties. programmer in-house working with transcript of the trial. See the entire II R. read accounting procedures. develop 11(f). 10(e), citations Record Fed.R.App.P. transcript. trial are to the herein voted to ASPC January On Growers National Wool merge with II to form ASI. The (NWGA) Association challenges whether necessi- and NWGA ASPC merger of the case, contending she prima facie made changes. Among many corporate tated satisfactorily she was decisions, did not establish re- making personnel those were time of her termi job at the performing ex- relinquishing organization, locating the carefully have employment. We United nation of complying with space, isting office *4 jury that a and believe regula- the record Agriculture examined Department States plaintiff perform was records accounting could conclude tions, merging the merger and Changing ing satisfactorily ASPs before the organizations. of the two sys- were any post-merger deficiencies from a cash basis accounting method receiving than accounting her a less complex consequence accrual a more tem to merger. during the transition adequate opportunity result of the major system was a merger adept activi- her new and of these at period to become R. 120. Some VII account- ties, finalizing complex job responsibilities. the new including months. on for several went ing system, during her supervisors Plaintiff’s three September (1984-86), Rodg- effective resigned employment, Rita Kourlis Plaintiff shortly (1987- replaced there- (1986) She was and Eldon White er 1989. Wasson male, Paul year old twenty-seven 89), Although by a Wasson after all testified. prin- the trial focused testimony plaintiff’s Zulauf. Evidence about presented plaintiff could satis- merger, upon whether the cipally performance problems before the job she held after the de- factorily perform performance those indicated White also awas her termination R. 90. merger, whether rectified. Ill ficiencies had been and, discharge, if so whether supervisor at immediate constructive alleged employer’s alleged the dis- plaintiff rebutted of her constructive the time for the nondiscriminatory business reasons defen- representatives from charge, and firm, the rele- discuss below Dol- We independent termination. dant’s jury points firm), (Dollinger on these con- vant Co. linger, Smith & support verdict upon to its rely properly perform- plaintiff could firmed that was 106; plaintiff. merger, VII R. favor ing job before significant defi- they were unaware of judgment notwith motion for ASI’s 43; ciencies, III and that R. challenged the suffi standing the verdict R. merger. V to facilitate was needed the ver support ciency of the evidence 54. review denial of dict. standard concerned plaintiff’s evidence notwithstanding the Much of judgment a motion following during the months evidence her treatment to “view requires us verdict vote, focusing on January merger non-moving party favorably to most decisions, ASI’s merger from rea the benefit of all exclusion give party training on the provide her with from the failure to inferences be drawn sonable accounting system, and ASI’s commu- Corp., 894 new Spulak v. K Mart evidence.” that her and deeds nication in both words (10th Cir.1990). We must F.2d longer needed. Plaintiff no if the services were defendant’s motion denial of affirm pre- from excluded testified that she was for the sufficient evidence record reveals not to was merger meetings; that she told plaintiff. in favor of have found new Dollinger firm on the Co., work Expert Tree Asplundh Cooper v. she information Cir.1988). accounting system; We were budget new formulate satisfactorily needed to appeal to evaluate unable her; role in attend- that her from by withheld appendices provided basis 26-27; R. R. 97. Paul incapable. VI VII meetings cur- Directors ing Board Zulauf, training minimal a senior auditor with tailed; received computerized firm, account- testified that lacked the abili- Solomon on the new began again manage system, and that White ing system; ty to the Solomon which II R. performance. criticizing replacement work software. Zu- to be the 54-65, 70, 76, III R. 9. lauf, principal apparently the indi- who was training employ- charged with vidual concerning responsive evidence ASI’s system, VII R. on the new see ees during the seven or plaintiffs treatment during he did train testified that immediately preceding eight months implementation computer of the new discharge some- alleged constructive 38-41, 52, he system, III R. but was unable Much of ASI’s evidence what inconsistent. training specifically. He identify performance consisted plaintiffs about given training on the agrees she was meeting in the mid- concerning a testimony Ill system. R. 58. Zu- Solomon plaintiffs software in which February 1989 dle of absence, meeting with White lauf also admitted in her was evaluated performance termination, plaintiffs at- meeting August August before and a second White, in being replace plain- his hired to by plaintiff, Wasson to discuss tended per- alleged they plaintiffs discussed Ill R. which tiff. *5 Despite plaintiffs deficiencies.
formance representa- Although Dollinger firm the merger the satisfactory record when work they plain- that worked with tives testified supervisor and Dol- approved, her was both billings to ASI re- extensively, their tiff concluded linger representatives firm ongoing training they provided flected the the 1989, only days few February after counterpart at plaintiffs younger to ability to plaintiff lacked the merger, that NWGA, Sharnas, training none for Sue but utilizing the new and creating and assist R. 114. plaintiff. VII accounting system developed complex the from this evidence We believe that R. merger. 37- of the Ill consequence as a perform- plaintiff was jury could conclude 77; also Y R. 38; R. 86-87. See V R. VII merger. We ing satisfactorily before the Dollinger firm that the testified 44. White that jury could conclude in the also believe the having plaintiff involved objected to operate to training to enable her accounting system, proper new development of the accounting system de- that was Wasson’s insistence under the despite new his 41; the during R. 26- from her liberately involved. V R. VI withheld she remain plaintiff that at- to period. jury further stated The was entitled White 27. transition meetings regarding the numerous for this was White’s tended reason infer one R. VI merger quit functions. or to have plaintiff to to force desire early as the also testified that as 8. But he enti- excuse to fire her. an meeting he February had determined 1989 may have another reason tled to infer that ability manage to plaintiff lacked securing plain- interest been Zulauf’s accounting system. creation of the new conclude that himself. We job tiff’s testified that R. 9. Plaintiff VI support plain- to exists sufficient evidence occasions, least two quit her to on at asked she able establish that tiff’s burden to 12, 1989, stating that April February and8 time of her termi- job at the perform to her fit the and did not “too old ... she was nation. 55,R. project.” II image wished to [ASI] 63, 81, 157. Ill depended that he testified Wasson challenges plain whether ASI also firm to evaluate whether Dollinger discharge. constructive tiff established “carry out the ability to plaintiff had for construc the standard have defined We Dollinger re- Larry R. 27. job.” new VI employer’s discharge as whether tive lacked to ported Wasson cli fostered a discriminatory acts illegal accounting sys- new manage the vision to compel a workplace that would was mate tem, to continued believe and he by articulating case le- to rebut resign. Derr v. to person reasonable Gulf nondiscriminatory reasons for the gitimate Cir. Corp., Oil Plaintiff, action. challenged employment course, ultimate burden of carries the negatively evaluated Plaintiff age was a persuasion prove determina- ap merger immediately after and, presents factor, employer if the tive conclude she was jury could proved. The action, to nondiscriminatory for the reasons uneducable incapable and as treated explana- employer’s stated show employ her final months of throughout the merely pretext for discrimination. tion is above, plaintiff testified As noted ment. also Texas F.2d at 1547. See Cooper, 836 White, her two occasions that on at least Burdine, Dep’t Community Affairs quit, asked her supervisor, immediate 1089, 1095, 248, 256, S.Ct. “image.” Plaintiff her citing (1981). L.Ed.2d 207 Rodger August told her resign asked her Wasson argues that did Ill R. I would be fired.” “if I didn’t legiti successfully rebut its evidence of Wasson denied II R. 94-95. White denying plaintiff mate business reasons conflicting testimony is charges, but these position. right continue in her We jury to It is determine. for the matter acknowledge presents the record a close Zulauf, charged from the record clear employer presented case. The job, and training plaintiff, wanted persons plaintiff’s problems with under III eventually got it. See R. supervision, principals by August jury could believe they thought plain firm advised ASI that reasonably she was believed change incapable managing tiff was supervisor losing job. Her risk accounting system. But new over *6 litany perfor- of her with a had confronted jury to believe that we think the is entitled job re- shortcomings; long-standing mance plain in management’s lack of confidence her; from and she taken sponsibilities were part age. her There tiff was in based information and train- inadequate received in support plaintiff’s for this view testi is pre- new ASI ing perform her duties. to mony told her she too old White that plaintiff per- was not that evidence sented image orga fit the the merged and did not by August satisfactorily forming job particular project. to It is nization wanted meeting month she was that but at a negative the of ly evaluation notable resigning. R. 33- VI discouraged from post-merger job performance oc alleged meeting covered several 35. That approval of the quickly curred so after the could stemmed problems, but some have finding merger. permitted The evidence adequate training by ASI than from less management prematurely concluded complex in her Dollinger firm and the functioning plaintiff capable was not of inexperience and her job responsibilities, merged organization, and within the computerized operating new the consequently provided her no reasonable yet fully apparently was system which new en opportunity to succeed within that al- Plaintiff implemented. tity. A could infer that defendant’s jury resignation it was tendered though she regard presumptions this were based fight. tired” II R. she was “too to because upon plaintiff’s age. All of the indi part plaintiff presented conclude that 96. We at ASI plaintiff viduals with whom worked support jury’s the to evidence sufficient Dollinger substantially firm were constructively that she was determination Dollinger, she Zulauf younger than was. discharged. firm; of the John Smith White, Wasson, Kourlis and Wer Richard
IV NWGA, ASPC; of theimer and Sharnas 34,152; II VI age forty. all R. plaintiff pri establishes a were under Once a Beverly Fay con case, R. producing R. VII ma the burden of facie from resign she was forced employer tended shifts to the defendant evidence super- her immediate relations with fifty-four, after age of at the ASPC 1985 Wasson, visor, with who was above employment. years of eight approximately hierarchy, at least oldest member some as the plaintiff left This age. she managers appear with whom related to her which did not group ASI Sharnas, forged signature regular basis. on a interacted June NWGA, counterpart at younger effort to secure a small plaintiffs co-worker in an training on the Solo- received pension apparently personal against loan funds. did not. system mon placed Neither the co-worker were ASI nor consequence risk as a at financial other sufficient contains The record plaintiff repaid the forgery, of this persuaded to be trier of fact permit disciplinary took no borrowed funds. ASI against on discriminated plaintiff was against plaintiff action because servic- age. of her basis during imple- time to were this es needed V merger of ASPC and NWGA. V ment the supervisors at ASI were R. 54. Plaintiff’s jury’s find Although uphold the we plaintiff for mis- unhappy having also factor a determinative ing age building ASPC occu- read the lease of the discharge, have we plaintiffs constructive merger; told pied at the of the time sufficiency concerning the view a different sixty days notice to required them it vacate finding of support a of the evidence months, thereby causing ASI instead of six of the violation A willful willfulness. unnecessary II R. incur costs. See some liquidated ADEA entitles 89-90. 626(b). have de We damages, U.S.C. § age finding willful
fined the standard Although are reluctant to overturn we fact-finder as whether discrimination issue, con- finding fact we must on a age was plaintiffs could conclude whole, clude, upon the record as a based employer’s in the factor predominant jury could have found that no reasonable F.2d at 1551. Un Cooper, 836 treatment. predominant motive test, are convinced here we der discharge plaintiff. constructive sufficient evi not contain record does defen jury to have concluded dence willful, ADEA violation VI
dant’s *7 $76,000 vacate award and we must the district court’s objects to Defendant willfulness. testimony by a em- ruling allowing former Dollinger firm advised Clearly the as Beverly Fay. Fay was not listed ployee, plaintiff unable considered that it pre- plaintiff in the standard witness for complicated handle the lists, supple- in a appeared but trial witness organizations. Some merged of system the days four before received mental list ASI to have been based appears of this advice rebuttal witness. possible as a trial in formal lack of education upon plaintiff’s Zulauf, Smith, Dollinger, and accounting. rulings as review We firm, public ac all certified were of that under an abuse admissibility of evidence only a to assume They seemed countants. v. Leasing Agristor discretion standard. merger. after the do the work could CPA Cir.1988). 1150, (10th Meuli, 1152 F.2d 865 have been based opinion may also Their a re very As testimony was brief. Fay’s over to take upon Zulauf’s desire part testimony witness, scope of her buttal however, reasons, These job. plaintiff’s of the record After review was confined. necessarily related to not are cannot conclude that we as whole age. out testimony of this probative value ASI. prejudice to any alleged weighed by Further, contains the record therefore, court the district hold, interpersonal skills We poor had permitting discretion its did not abuse relationships with subor- strained and testimony. Fay’s strained She had co-workers. and dinates 1576 part, REVERSED AFFIRMED VII pro- for further part, and REMANDED reduc concerns issue The final ceedings consistent herewith. award, whether specifically damage
ing the
in lieu of
awarded
properly
pay was
BARRETT,
front
Judge,
Senior Circuit
exer
whether
and
reinstatement
dissenting:
mitigating her dam
diligence
due
cised
dissent.
respectfully
I
is
held
reinstatement
haveWe
ages.
majority
I
with interest
note
cases,
remedy in ADEA
but
preferred
appendices
not rest on
opinion does
pay
to front
when
is entitled
rather,
but,
parties,
by the
provided
894
Spulak,
is not feasible.
reinstatement
trial,
up
ordered
transcript of the
the entire
F.2d at
Cooper, 836
F.2d at
Fed.R.App.P.
pursuant
majority
by the
judge to
permit the
agreed to
parties
The
11(f).
practice
per
is
10(e)
While this
explaining its
this determination.
make
missible,
practice
the better
suggest
I
pay
district
awarding front
reasons
squarely
part
on
the burden
place
is to
hostility
acknowledged defendant’s
court
that the record ex
to “...
see
of counsel
that the rela
found
plaintiff, and
toward
consideration and
cerpts are sufficient for
ir
parties had been
tionship between
appeal
on
of the issues
determination
record contains
damaged.
reparably
remedy
obligation to
is under no
the court
conflicting evidence
sharply
examples
respon
fulfill that
of counsel to
any failure
reflecting
plain
on
incidents
specific
about
Order,
Cir.,
10th
Octo
sibility.” General
At
treatment.
performance
job
tiffs
v.
p. 5.
also Deines
ber
See
rela
working
poor
best, these illustrate
Co.,
F.2d
978-79
Mfg.
969
Vermeer
worst,
an
parties;
tionship between
Cir.1992) (record
appeal
(10th
on
did not
district
trust. The
of mutual
absence
transcripts of evidence sufficient
contain
and ami
productive
that a
court’s decision
care, weight
duty
of evi
for review
relationship between
working
cable
dence,
instructions or
correctness of
by the
supported
is
parties
rulings); Trujillo
not
feasible
evidentiary
trial court’s
discre
Center,
abuse of
not an
928
Regional
record and hence
v.
Junction
Grand
Cir.1991) (court
Sav.
(10th
Prudential Fed.
tion.
v.
976
could
See EEOC
F.2d
1166, 1172-73
Ass’n,
findings by
F.2d
trial
factual
court
Loan
not
review
Sil-Flo,
denied,
Inc. v.
Cir.1985),
transcript);
(10th
absent
trial
cert.
(1985);
(10th
SFHC, Inc.,
917 F.2d
Cir.
L.Ed.2d 289
106 S.Ct.
transcript
1990) (record
did not contain
F.2d
Corp., 639
EEOC Sandia
Grant,
ruling); Neu v.
challenged bench
Cir.1980).
(10th
Cir.1977) (matters
obligation to
have an
Plaintiff does
appeal
will
appearing
record
employer,
howev
mitigate damages.
appeals).
*8
by
court
not
considered
be
showing plaintiff
er,
carries the burden
by
view,
appendices provided
my
In
mitigat
diligence in
due
failed to exercise
quite adequate. On that
parties are
at 1158.
Spulak, 894 F.2d
ing any losses.
record,
court’s
I
the district
would reverse
plaintiff’s efforts
not establish
ASI did
judgment not-
motion for
denial of ASI’s
damages were
unreason
mitigate
and remand with
withstanding the verdict
award
under the circumstances.
able
judgment
awarded
instruction
was
in lieu of reinstatement
pay
of front
be set aside and
Acrey on her ADEA claim
Corp.,
See Sandia
clearly
not
erroneous.
judg-
motion for
and that ASI’s
vacated
for a
ADEA
willful
alleged
she had been construc-
judg-
court
the district court’s
the remainder of
employment
discharged from
tively
ment.
by
September
Acrey
and dis- was taken
from the
ASI on
district
with
sex,
against
judgment
of her
un-
court’s
in
criminated
because
the Title VII action.
Rights Act of Furthermore,
of the Civil
der Title YII
no contention has been raised
seq.,
2000e et
and
U.S.C.
jury’s findings
binding
that the
are
on all
§
50, under the ADEA. The Title
age, then
See,
common issues.
Skinner v. Total Pe
court,
tried to the
while the
VII claim was
troleum,
Inc.,
(10th
son p. for discrimination. Trial Vol. Appendix, lant’s Fay, then rebuttal, Acrey called a Ms. On employer from prohibits ADEA an The that: she had worked age who otherwise “discharging] any individual or supervision of Eldon under ASPC for any discriminating] against individual her merit give White; refused White terms, compensation, condi- respect to his he years and consecutive for three raises tions, privileges employment, because intolerable; working conditions made age.” individual’s 29 U.S.C. of such Wasson, gave he complained to she when 623(a)(1). prima In order to establish a § fired; being - quitting or option of her the by age discrimination con- facie case of she acknowl- age then she was discharge, employee an must structive and Rick Hasland that both Richard edged by illegal its dis- “employer that his prove Wertheimer, performed sec- whom working made condi- criminatory acts has job per- work, of her were critical retarial person that a reasonable tions so difficult he had not testified that formance. feel com- employee’s position would her to Fay and had not forced Ms. harassed Corp., resign.” Derr v. Oil pelled to Gulf resign. (10th Cir.1986). F.2d a that one cannot establish Derr holds Conclusion by age case of discrimination prima facie erred hold that the district court I would discharge absent evidence constructive judgment not- motion for denying ASPs subjected employee to dif- employer an The record dem- withstanding the verdict. working conditions. ficult or intolerable that ASI articulat- beyond doubt onstrates case, jury instant deter- Id. In the non-discriminatory legitimate, busi- ed a Acrey constructively mined that had been Acrey in handling of reason for its ness ASI, discharged by age was a determi- that, resignation, on the date of her factor, discharge constituted native job performance was unsatisfacto- Acrey’s of ADEA. a willful violation prove by preponder- a ry. Acrey did not court, action, the trial In the Title VII proffered ance of the evidence by on the same evidence considered based pretext discrimi- reason was a mere action, in the ADEA found unsupported jury’s verdict is nation. prima a facie Acrey had not established by the record. court discrimination. The trial case of sex Green, 411 Douglas Corp. v. McDonnell found: 1817, 1824-25, 802-04, U.S. 93 S.Ct. sug (1973) only credible evidence offered Dept. and Texas L.Ed.2d 668 Burdine, gesting gender-based discrimination v. Community Affairs 248, 252-53, alleged by made Mr. White statement 101 S.Ct. image of (1981), Ms. did not fit the provide
L.Ed.2d for a three- At wrong she was the sex. stage analysis determining whether a ASI because trial, making fervently denied plaintiff Mr. White has sustained his/her burden if as statement. Even we were to proof employment discrimination this an made, such First, this utterance was plaintiff case. has the initial sume that prove does not establishing prima burden of facie case of a remark Second, against if was discriminated based discrimination. case, Hopkins, gender. Price v. prima should facie Waterhouse establish 1775, 1791[, 251,] 109 S.Ct. burden then to the defendant em U.S. shifts [490 (1989). An inci isolated ployer legitimate, non 104 L.Ed.2d to establish some 268] does not gender-based of a remark discriminatory reason for its actions. dent that discrimination Third, employer trigger offer a conclusion if the defendant does reason, Universi legitimate, non-discriminatory occurred. Ottaviani State Cir.1989), (2d 375-76 prove by preponder ty, must then denied, 1021,] 110 U.S. prof- reason rt. ance of the evidence that the [493 ce
1581
(1990);
facade,
721[,
pretext,
a mere
107 L.Ed.2d
see
or sham for
S.Ct.
dis
740]
Co.,
Hicks,
833
v. Gates Rubber
Ramsey,
crimination.
Kerr-McGee’s version was a ditional evidence and above that of age prima case) discrimination. See Branson v. facie discrimina- Co., Price River Coal 853 F.2d tion. citing Kepkart See id. v. Institute Cir.1988) (“As courts are not free Technology, Gas 630 F.2d of (7th employer’s an guess to second business Cir.1980); accord Bienkowski v. judgment, this assertion Airlines, Inc., American [that 851 F.2d equally qualified than (5th Cir.1988). people permit is insufficient to retained] finding pretext.”). This circuit’s prevail by
view is that a cannot challenging general
merely terms the
accuracy performance of a evaluation employer making
which relied on employment any
an decision without ad-