FREEMAN SYNACEK, APPELLEE AND CROSS-APPELLANT, V. OMAHA COLD STORAGE TERMINALS, INC., APPELLANT AND CROSS-APPELLEE
No. S-93-1021
Supreme Court of Nebraska
January 20, 1995
526 N.W.2d 91
It is unnecessary for us to consider the other assigned errors. The judgment of the district court must be reversed and the cause remanded with directions to order the cease and desist orders previously entered by CPNRD to be vacated and the proceedings dismissed.
REVERSED AND REMANDED WITH DIRECTIONS.
Thomas F. Hoarty, Jr., and Leanne R. Kullenberg, of McGowan & Hoarty, for appellee.
HASTINGS, C.J., WHITE, CAPORALE, LANPHIER, and WRIGHT, JJ.
CAPORALE, J.
I. STATEMENT OF CASE
Averring that his employment had been terminated in violation of Nebraska‘s age discrimination act,
II. SCOPE OF REVIEW
The scope of our review is necessarily determined by whether this action is one at law or in equity. Lone Cedar Ranches v. Jandebeur, 246 Neb. 769, 523 N.W.2d 364 (1994). We begin that study by noting the language of
In any action brought to enforce the provisions of sections
48-1001 to48-1009 , the court shall have jurisdiction to grant such legal or equitable relief as the court may deem appropriate to effectuate the purposes of sections48-1001 to48-1009 , including judgments compelling employment, reinstatement, or promotion, or enforcing liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation.
Inasmuch as under that provision of the act a plaintiff may invoke either the legal or equitable powers of the court, we next look at Synacek‘s petition, for whether an action is legal or equitable is determined from its main object as disclosed by the averments of the petition and the relief sought. Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, 227 Neb. 770, 420 N.W.2d 280 (1988). Equity acquires jurisdiction over the action when the averments of the pleadings and the relief sought indicate that the main object of the action is equitable in nature. Fisbeck v. Scherbarth, Inc., 229 Neb. 453, 428 N.W.2d 141 (1988); Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, supra; White v. Medico Life Ins. Co., 212 Neb. 901, 327 N.W.2d 606 (1982); Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). Moreover, where a court of equity has acquired jurisdiction of a case, it will make a complete adjudication of all matters properly presented and
Synacek‘s petition alleges that he was discriminatorily discharged at 59 years of age and that as a result, he “has suffered and will continue to suffer lost wages, lost fringe benefits, and lost opportunities for advancement. . . .” Such “lost opportunities” may be such that the only effective remedy would be through equity in the form of a mandatory injunction ordering that Synacek be reinstated to his former employment. See, Maxfield v. Sinclair Intern., 766 F.2d 788 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986); Blim v. Western Elec. Co., Inc., 731 F.2d 1473 (10th Cir. 1984), cert. denied, 469 U.S. 874, 105 S. Ct. 233, 83 L. Ed. 2d 161; Gibson v. Mohawk Rubber Co., 695 F.2d 1093 (8th Cir. 1982).
Thus, the lost opportunities allegation, coupled with Synacek‘s prayer that in addition to awarding past and future damages the court grant “such other and further relief” as it “shall deem equitable and just,” compels the conclusion that the action was pled in equity. See, also, Tobin v. Flynn & Larsen Implement Co., 220 Neb. 259, 369 N.W.2d 96 (1985); Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984) (prayer for equitable relief has no place or role in law action).
Accordingly, the jury empaneled to consider some of the issues in this case served only an advisory role, and its findings were not binding on the trial court. In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982); Farmers Coop. Assn. v. Klein, 196 Neb. 180, 241 N.W.2d 686 (1976); Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897). Neither is the
We also observe that while it was entirely appropriate for the trial court to have submitted the issues of the legality of the discharge and the amount of claimed past damages to the advisory jury and to have reserved the remedy as to the claimed future harm to itself, the better practice would have been to have entered but one judgment. See Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986) (trial court should limit itself to entering but one final determination of rights of parties).
III. FACTS
Omaha Cold Storage operates a refrigerated warehouse and hired Synacek in 1953 as a fireman responsible for firing the steam boilers. Through taking classes, he obtained an engineer‘s license and in 1965 was promoted to the position of chief engineer, a supervisory position making him responsible for all maintenance, including the refrigeration system.
Omaha Cold Storage became incorporated in 1979, at which time Roy Mattson, who had managed the predecessor entity for approximately 2 years, became president and a shareholder.
On October 16, 1989, Steven William Tomlinson was hired to serve as vice president and chief operating officer and to succeed Mattson as president when Mattson concluded that Tomlinson was ready. It was Tomlinson‘s duty to go through the operation and decide what changes needed to be made in order to make it “run more efficiently, cost effective and profitable.”
At a meeting of the board of directors of Omaha Cold Storage held on Friday, November 17, 1989, Tomlinson asked Mattson
On the following Monday morning, November 20, Tomlinson called a meeting of supervisors, at which time Synacek‘s duties were changed. Although his salary remained the same, Synacek was no longer to be responsible for general plant maintenance, but was to be responsible for only maintaining the refrigeration system. Responsibility for general plant maintenance was assigned to Mike Anderson, who became Synacek‘s boss. When Synacek was told that if he needed any people or materials to complete a job he should go to Anderson, Synacek replied that if Anderson was to be his boss, then Anderson would have to tell Synacek everything that needed to be done, as the boss is supposed to know more than the employee.
There is a great deal of dispute over what transpired immediately following that meeting. Synacek claims that Tomlinson asked Synacek to remain behind and that they then had a private talk, during which, after a discussion concerning the cost of raising children, Tomlinson asked when Synacek planned to retire. According to Synacek, he replied that he had not given the matter any thought, but that if he retired at age 62, it would be 2 1/2 years away. Tomlinson denies that such a conversation ever took place, and the other evidence offered in support of either position is inconclusive.
However, there is no disagreement that the next morning, November 21, Anderson talked with Synacek while the latter was changing clothes in front of his locker. After exchanging greetings, Anderson told Synacek that Anderson was “not going to fuck with you, because I do not know nothing about refrigeration.” Synacek replied that was good, but that the “little asshole upstairs don‘t want to fuck with me either.” Neither is there any disagreement that Tomlinson was the object of Synacek‘s concern. What is in disagreement is the manner in which Synacek delivered his thought.
Synacek claims that he neither raised his voice, threatened, pointed his finger, nor shook his fist. Anderson, on the other
According to Anderson, he went upstairs later that day to do some paperwork and saw Tomlinson, who asked about Anderson‘s conversation with Synacek. Anderson responded that ” ‘[w]e‘ll work it out’ ” or ” ‘[w]e‘ll handle it,’ ” meaning that he and Synacek would work out whatever differences they had.
However, each of the two or three times that Anderson saw Tomlinson later that day, Tomlinson asked about the conversation, wanting to know exactly what was said. After the third or fourth time he was asked, Anderson later in the afternoon related to Tomlinson exactly what happened.
Tomlinson testified he was “extremely upset” about what Anderson had reported and wanted to get verification. Accordingly, he contacted Jerome Vincent Hytrek, who had been in the area at the time of the incident. According to Tomlinson, Hytrek went to Tomlinson‘s office when paged between 9:30 and 10 o‘clock in the morning and “told me verbatim the way the incident went down that . . . Anderson had related to me earlier.”
However, Hytrek, who had since left Omaha Cold Storage and had settled a claim against his former employer, denied hearing the conversation between Anderson and Synacek, denied meeting with Tomlinson, and denied giving Tomlinson any report of the incident.
Tomlinson thereafter testified that while Anderson was initially reluctant to tell him what had happened, Anderson did in fact report the details at 9 o‘clock in the morning, and that Hytrek verified Anderson‘s report at 10 o‘clock.
Having determined to discharge Synacek, Tomlinson called Synacek in for a meeting with Anderson and the general manager and did discharge Synacek. According to Tomlinson, Synacek at this time admitted his conversation with Anderson,
Tomlinson also testified it was the questioning of both his authority and the authority of Anderson, Synacek‘s direct supervisor, that constituted insubordination. However, at his earlier deposition, Tomlinson indicated it was only the questioning of Anderson‘s authority which comprised the offense. Synacek was not replaced; his duties were transferred to a 33-year-old employee.
During the period of October through December 1989, Omaha Cold Storage had a total of 67 employees. Of those employees, 30 of them, or 45 percent, were between 40 and 70 years of age. Of those 30 employees, 10 were 40 to 50; 13 were 50 to 60; and 7 were 60 to 70 years of age.
During that same period, four employees over 40 years of age left their employment at Omaha Cold Storage; Synacek and one other employee were discharged for insubordination, another was discharged because his work was of poor quality, and the last retired.
A total of three employees were terminated for insubordination during those months. Thus, two of the three employees terminated for insubordination after Tomlinson took charge were more than 40 years old. The employee who was under 40 years of age was discharged, before Tomlinson took charge, for coming to work drunk.
IV. ANALYSIS
Synacek‘s action is grounded in the provisions of
We accept as true Synacek‘s statement that shortly before he was discharged, he was asked when he intended to retire. However, that fact alone does not establish that he was discharged because of his age. It is entirely appropriate for an employer to inquire as to an employee‘s thoughts in that regard; an employer, too, must plan for the future. Moreover, an
Likewise, the statistical evidence concerning the number of employees, by age group, and the number of types of discharges in the over-40 age group does not establish anything of significance.
Because of the inconsistencies between the testimony of Tomlinson, Anderson, and Hytrek concerning when and how Tomlinson went about confirming the November 21 conversation between Synacek and Anderson, we conclude that Tomlinson‘s proffered reason for discharging Synacek was not entirely truthful. Nonetheless, the evidence does not persuade us that Omaha Cold Storage discriminated against Synacek because of his age. In this regard, we hold that for the purpose of analyzing employment discrimination cases, the term “pretext” means pretext for discrimination; to establish that the proffered reason for the action taken by the employer was a pretext for discrimination, the employee must show both that the proffered reason was false and that discrimination was the real reason. St. Mary‘s Honor Center v. Hicks, supra; Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir. 1994).
Accordingly, there is merit in Omaha Cold Storage‘s claim that the evidence is insufficient.
V. JUDGMENT
The trial court‘s judgments in Synacek‘s favor are reversed and the cause remanded for dismissal. By virtue of the foregoing, it follows that even if there otherwise were a basis for awarding Synacek an attorney fee, a matter we do not decide, his cross-appeal must be, and hereby is, dismissed, and his motion for an attorney fee in this court must be, and hereby is, overruled.
REVERSED AND REMANDED WITH DIRECTION TO DISMISS.
This case arises under the Act Prohibiting Unjust Discrimination in Employment Because of Age,
“although the ultimate burden of persuasion by a preponderance of the evidence at all times remains with the plaintiff, the method of proof is for the plaintiff to prove a prima facie case; if the plaintiff succeeds in so doing, the defendant has the burden of articulating some legitimate, nondiscriminatory reason for its action. Should the defendant succeed in so doing, the plaintiff must establish by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”
Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 878, 503 N.W.2d 211, 217 (1993). See, also, Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).
Thus, if the defendant articulates some allegedly legitimate, nondiscriminatory reason for its action, the plaintiff must establish, by a preponderance of the evidence, that the proffered reason was pretextual. Now, the majority holds that a plaintiff must not only show that the reason proffered by the employer is false but also establish that the employee‘s age was the real reason for the employer‘s action. In so doing, the majority relies on St. Mary‘s Honor Center v. Hicks, ___ U.S. ___, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). However, the majority does not, in my opinion, set out the full holding of the Supreme Court of the United States in St. Mary‘s Honor Center. In reliance on St. Mary‘s Honor Center in its entirety, I dissent.
In St. Mary‘s Honor Center, the Court addressed the issue of whether the trier of fact‘s rejection of the employer‘s asserted reasons for the employer‘s actions mandates a finding for the plaintiff. In that case, the majority held that rejection of the defendant‘s proffered reasons does not compel judgment for the plaintiff. A finding that the employer‘s explanation of its action is not believable is not the equivalent of finding that the employer‘s action was the product of unlawful discrimination. Id.
In this case, the majority concludes that the defendant‘s proffered reason for terminating Synacek was not entirely truthful. However, the majority would require Synacek to show both that the proffered reason was false and that discrimination was the real purpose. The majority ignores the possibility that a finding of discrimination could be based solely upon the plaintiff‘s prima facie case and the inferences arising from the fact that the defendant‘s proffered reason was proven to be less than fully truthful.
The evidence establishes that the day Tomlinson took over as president, he asked 59-year-old Synacek when he planned to retire; that the next day a conversation took place between Synacek and Anderson during which alleged insubordination occurred; that two of the three persons present during that conversation testified that no threats, abuse, or shouting occurred; and that 4 days earlier, Tomlinson asked the 64-year-old president, Mattson, when he planned to retire, after which the board voted to remove Mattson. Based on this evidence, a jury concluded that Omaha Cold Storage had discriminated against Synacek on the basis of his age. The trial court, sitting in equity, accepted the findings of the jury and awarded front pay and attorney fees in addition to the jury‘s damage award.
In an appeal of an equitable action, an appellate court tries the factual issues de novo on the record and reaches its conclusion independent of the factual findings of the trier of fact. However, where the credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trier of fact heard and observed the witnesses and accepted one version of the facts rather than another. Upah v. Ancona Bros. Co., 246 Neb. 585,
The elements of Synacek‘s prima facie case, coupled with the inference arising from the lack of credibility contained in the employer‘s evidence, suggest that we should give weight to the fact finder‘s determination that Omaha Cold Storage intentionally discriminated against Synacek because of his age. Accordingly, I would affirm the judgment of the district court in this regard.
WHITE, J., joins in this dissent.