                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUN 13 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 ART MANNING,

          Plaintiff-Appellee,                            No. 99-1010
 v.                                                      No. 99-1130
 McGRAW-HILL, INC.,                                 (D.C. No. 94-WM-1697)
                                                           (D. Colo.)
      Defendant-Appellant.
 __________________________
 ART MANNING,

          Plaintiff-Appellant,
 v.                                                      No. 99-1029
 McGRAW-HILL, INC.,                                 (D.C. No. 94-WM-1697)
                                                           (D. Colo.)
          Defendant-Appellee.


                                ORDER AND JUDGMENT       *




Before BALDOCK, KELLY,             and BRISCOE , Circuit Judges.

      McGraw-Hill, Inc., appeals the district court’s denial of its Federal Rule of

Civil Procedure 50 motion for judgment as a matter of law after a jury found it

willfully discriminated against Art Manning on the basis of age, in violation of


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the Age Discrimination in Employment Act. 29 U.S.C. § 621      et seq. McGraw-

Hill also appeals the damages award and the award of Manning’s attorney fees.

Manning cross-appeals the district court’s refusal to award him front pay. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291, reverse the district court’s

denial of McGraw-Hill’s Rule 50 motion, and dismiss the cross-appeal as moot.

                                          I.

      Art Manning was a sales account executive at television station KMGH-

Channel 7 in Denver, Colorado, which was owned by McGraw-Hill, Inc.

Manning’s job was to sell advertising on KMGH and to service existing

advertising accounts. Manning worked for KMGH from 1979 until 1993. In

January 1991, John Proffitt became general manager of KMGH. In February

1992, James Sieke became the local sales manager of KMGH, making him

Manning’s supervisor. Sieke reported to Chris Westerkamp, who became general

sales manager of KMGH in June 1991.

      Manning serviced the station’s large advertising accounts with Toyota,

Lexus, and Coca-Cola. Starting in 1992, Sieke and Westerkamp became

concerned about Manning’s performance, and particularly about the station’s

share of business from Toyota, Lexus, and Coca-Cola. Sieke testified that

because KMGH’s ratings were low it was very important for KMGH to have

better salespeople than its competition. In March 1992, Sieke discovered that


                                          2
Manning had negotiated a second quarter 1992 advertising rate for Toyota that

was significantly below regular station rates, without prior management approval.

Sieke and Westerkamp decided to take the Toyota, Lexus, and Coca-Cola

accounts from Manning. Sieke testified he took the Toyota account from

Manning because of the unapproved rate and because of Manning’s overall

performance in 1991, and he took the Coca-Cola account because of Manning’s

underperformance on the account. Megan Back, who took over the Toyota

account, negotiated a 22% share of Toyota’s television advertising for the third

quarter in 1992 when Manning had negotiated a 4% share for the same time

period the previous year. In October 1992, the station share of Toyota increased

to 24%, compared to Manning’s 7% for October 1991.

      Sales executives at KMGH set quarterly goals for themselves. Sieke

testified that Manning did not achieve some of his fairly simple first quarter 1992

goals. Westerkamp gave Manning a performance score of 5.5 out of 10, which

was below average for sales executives. Manning also failed to meet his second

quarter 1992 goals, receiving a performance score of 4, the lowest of any sales

executive. Sieke testified that Manning did not appear to be concerned about his

low performance scores. On July 15, 1992, Westerkamp addressed a memo to

Manning setting out the steps necessary for Manning to improve his performance

and stating if Manning’s performance did not improve significantly he could be


                                         3
discharged. Manning received a performance score of 6 for his third quarter

1992 goals, still the lowest of any sales executive. He also did not meet his

fourth quarter 1992 goals, receiving a performance score of 4. Manning did not

object to any of these scores when they were given or claim they were the result

of age discrimination.

      On December 29, 1992, Westerkamp issued a letter of final warning to

Manning. The letter included goals for Manning to complete in the first quarter

of 1993 and advised Manning that failure to meet the goals would result in his

termination. Manning filed a written response alleging Westerkamp was

discriminating against him on the basis of his age and requesting a meeting to

revise the goal expectations. On December 31, 1992, Manning filed a charge of

age discrimination with the E.E.O.C. On January 5 and January 11, 1993,

Westerkamp and Sieke met with Manning to discuss and revise his first quarter

1993 goals. On January 19, 1993, Westerkamp sent Manning a memo detailing

why Manning’s presentation writing skills were inadequate. On January 25,

1993, Sieke sent Manning a four-page memo outlining his progress on his first

quarter 1993 goals. In February 1993, Manning filed a charge of retaliation with

the E.E.O.C. On March 11, 1993, Sieke sent Manning a follow-up memo

addressing Manning’s progress on his first quarter 1993 goals.

      Manning did not meet his first quarter 1993 goals. On March 31, 1993,


                                         4
Westerkamp discharged Manning. Manning was 49 years old at the time.

Westerkamp denied that age was a factor in Manning’s termination, stating that

he had no reason to fire someone because of his age if he was a good salesperson.

Manning testified that during his quarterly goal reviews Sieke made comments

about his age. Manning claimed Sieke said he “was just about ten years behind

the times,” that “[w]e don’t do things the good-old-boy way anymore,” and that

he had “a whole room of young, aggressive salespeople out there.” Aplt. App. I

at 278. Sieke denied making any of these statements.

      Manning claimed that KMGH discriminated against other employees on the

basis of age. Lawrence Grall worked at KMGH for ten years, eight years as a

sales executive and two years as local sales manager. He believed he was

discharged because Proffitt and Westerkamp were bringing in a younger group of

managers. Proffitt testified that Grall was discharged because of a change in job

requirements and his lack of performance. Leonard Marsh worked at KMGH

from 1978 to1992. Marsh was discharged because of a reduction in force, but he

believed it was because of his age. Of the nine sales executives hired from 1990-

1995, all except one were under the age of 40. Of the four individuals who left

the sales department since 1991, all were over the age of 40. These individuals

were Manning, Grall, Marsh, and Peter Remmert. Sieke testified that other sales

executives over the age of 40 worked at KMGH while Manning was there and


                                         5
KMGH had hired employees over the age of 40 since Manning left. Tausca

Schillaci and William Goddard, sales executives at KMGH, were over the age of

40 and both testified they did not believe they were subjected to age

discrimination.

      On June 28, 1994, Manning filed a complaint in Colorado state court

alleging McGraw-Hill violated the Age Discrimination in Employment Act

(ADEA) and the Colorado Anti-Discrimination Statute.    1
                                                            McGraw-Hill removed

the action to federal court under 28 U.S.C. § 1446. On May 5, 1997, a jury

found that McGraw-Hill willfully discriminated against Manning on the basis of

age and awarded him back pay of $324,900. The jury concluded that McGraw-

Hill did not prove Manning failed to mitigate his damages. The jury further

concluded that McGraw-Hill did not retaliate against Manning for filing charges

of discrimination with the E.E.O.C. On May 8, 1998, the district court

determined that Manning was entitled to liquidated damages in an amount equal

to the award of back pay, but that Manning was not entitled to prejudgment

interest or front pay.

      On December 8, 1998, the district court denied McGraw-Hill’s renewed



      1
        Manning also alleged breach of contract, promissory estoppel, and
intentional infliction of emotional distress/outrageous conduct. He does not
appeal the district court’s grant of McGraw-Hill’s motion for summary judgment
on these claims.

                                         6
Rule 50 motion for judgment as a matter of law, rejecting its arguments on

liability, willfulness, and attorney fees. The court granted the motion on

damages, requiring Manning to elect between a remittitur reducing the damage

award against McGraw-Hill or a new trial on the issue of damages. Manning

accepted the remittitur, reducing his damage award to $401,000. The district

court determined that Manning was entitled to attorney fees as the prevailing

party, pursuant to 29 U.S.C. § 216(b), and awarded fees at the rate of $175 per

hour, for a total of $166,215.43.

                                              II.

       The district court denied McGraw-Hill’s Rule 50 motion for judgment as a

matter of law. We review the district court’s denial of a motion for judgment as

a matter of law de novo, applying the same legal standard as the district court.

Deters v. Equifax Credit Info. Servs., Inc.     , 202 F.3d 1262, 1268 (10th Cir. 2000)

(citing Baty v. Willamette Indus., Inc.   , 172 F.3d 1232, 1241 (10th Cir.1999)). A

party is entitled to judgment as a matter of law only if the “evidence points but

one way and is susceptible to no reasonable inferences supporting the party

opposing the motion.”       Id. (internal quotations omitted). In reviewing the record,

we “will not weigh evidence, judge witness credibility, or challenge the factual

conclusions of the jury.”     Id. Judgment as a matter of law is appropriate only if

there is no legally sufficient evidentiary basis for a claim under the controlling


                                              7
law. Id. We consider the evidence, and any inferences drawn therefrom, in favor

of the non-moving party.      Id.

       Under the Age Discrimination in Employment Act (ADEA), it is unlawful

for an employer “to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A

plaintiff may prove his ADEA claim through the burden-shifting framework of

McDonnell Douglas Corp. v. Green        , 411 U.S. 792, 802-04 (1973).   See Jones v.

Unisys Corp. , 54 F.3d 624, 630 (10th Cir. 1995)     . Under the McDonnell Douglas

analysis, the plaintiff has the initial burden of establishing a prima facie case of

age discrimination . The burden shifts to the defendant to articulate some

legitimate, nondiscriminatory reason for the challenged action, then shifts back to

the plaintiff to prove the defendant’s stated reason was a pretext for unlawful

discrimination.      Jones v. Denver Post Corp. , 203 F.3d 748, 752-53 (10th Cir.

2000) (citing McDonnell Douglas , 411 U.S. at 802-04).

       However, after “a full trial on the merits, the sequential analytical model

adopted from McDonnell Douglas . . . drops out” and this court is “left with the

single overarching issue whether plaintiff adduced sufficient evidence to warrant

a jury’s determination that adverse employment action was taken against him on

the basis of age.”     Doan v. Seagate Tech., Inc. , 82 F.3d 974, 977 (10th Cir.


                                             8
1996) . There is no dispute that adverse employment action was taken against

Manning. The issue is whether there was sufficient evidence to support the

jury’s finding that Manning was discharged because of his age.

       A plaintiff bringing a claim under the ADEA must establish that his age

was a “determining factor” in the employer’s decision.      Greene v. Safeway

Stores, Inc. , 98 F.3d 554, 557 (10th Cir. 1996) (citing   Lucas v. Dover Corp. , 857

F.2d 1397, 1400 (10th Cir. 1988)). “The plaintiff need not prove that age was

the sole reason for the employer’s acts, but must show that age made the

difference in the employer’s decision.”     Id. (internal quotations omitted ).

       Manning contends three statements by Sieke evidenced age discrimination:

(1) that Manning “was just about ten years behind the times,” (2) that “[w]e don’t

do things the good-old-boy way anymore,” and (3) that “I’ve got a whole room of

young, aggressive salespeople out there.” Aplt. App. I at 278. Even if we accept

that these statements were made, which Sieke denied, we conclude they are

insufficient to establish Manning was discharged because of his age. “Age-

related comments referring directly to the plaintiff can support an inference of

age discrimination, but ‘isolated [or] ambiguous comments’ may be . . . too

abstract to support such an inference.”    Stone v. Autoliv ASP, Inc , 210 F.3d

1132, 1140 (10th Cir. 2000) (quoting      Cone v. Longmont United Hosp. Ass’n     , 14

F.3d 526, 531 (10th Cir. 1994)). “A plaintiff must demonstrate a nexus exists


                                             9
between the allegedly discriminatory statement and the company’s termination

decision . . . and therefore ‘that age actually played a role in the defendant’s

decisionmaking process and had a determinative influence on the outcome.’”          Id.

(quoting Rea v. Martin Marietta Corp. , 29 F.3d 1450, 1455 (10th Cir. 1994)).

Manning did not prove any nexus between Sieke’s statements and McGraw-Hill’s

decision to fire him.   See Lindsey v. Baxter Healthcare Corp.   , 962 F.2d 586, 588

(7th Cir. 1992) (stating that “[n]o weight can be attached to . . . ‘good old boys,’

[because] any competent user of the English (or rather the American) language

knows that to be a good old boy one need not be old, or for that matter good”).

Further, age-related comments “by non-decisionmakers are not material in

showing the [defendant’s] action was based on age discrimination.”      Cone , 14

F.3d at 531. Westerkamp and Proffitt, not Sieke, were the decision-makers in

employment decisions at KMGH.

       Manning also alleged that other employees over the age of 40 were

discharged because of their age and he presented the testimony of Grall and

Marsh. McGraw-Hill representatives stated that Grall and Marsh were

discharged for non-age related reasons and Manning presented no other evidence

of age discrimination in the termination of those employees. Further, at least two

sales executives over the age of 40 were still employed at KMGH at the time of

trial, negating Manning’s theory of widespread, age-related firings at the station.


                                           10
The evidence presented by Manning did not establish a pattern of age

discrimination at KMGH.      See Vanasco v. National-Louis Univ.   , 137 F.3d 962,

967 (7th Cir. 1998) (stating that “evidence of scattered decisions either favoring

or disfavoring older employees reveals little about the University’s processes and

is certainly insufficient, without more, to prove a pattern of age discrimination”).

      Manning relies on his past evaluations of acceptable performance and

letters of commendation from 1989 to establish that his discharge for poor

performance was pretextual. In 1989, Manning received an evaluation of

“[p]erformance substantially and consistently exceeded expectations and was

clearly exceptional.” Aplt. App. II at 482. “Pretext is not established by virtue

of the fact that an employee has received some favorable comments in some

categories or has, in the past, received some good evaluations.”   Ezold v. Wolf,

Block, Schorr and Solis-Cohen , 983 F.2d 509, 528 (3d Cir. 1992). For 1990,

Manning’s evaluation stated that his “[p]erformance was below expectations.”

Aplt. App. II at 488. This was before Proffitt, Westerkamp, or Sieke became

Manning’s supervisors and superiors. Manning failed to meet his self-determined

goals and received poor performance reviews for all four quarters of 1992 and

the first quarter of 1993. He received numerous warnings regarding his poor

performance and detailed suggestions of how to improve his performance, but his

performance did not improve. Although Albert Knittle, Thomas McCarthy, and


                                            11
Mary Beth Lynch-McGrath, clients of Manning’s, testified that Manning was one

of their best sales representatives, this does not contradict McGraw-Hill’s belief

that Manning failed to meet expectations.

      McGraw-Hill’s stated reasons for terminating Manning’s employment were

poor performance and failure to meet his quarterly goals for over a year. “This

court will not second guess business decisions made by employers, in the absence

of some evidence of impermissible motives.”     Lucas , 857 F.2d at 1403-04.

Manning did not dispute the accuracy of his performance reviews when they were

given. See Gairola v. Virginia Dep’t of Gen. Servs.   , 753 F.2d 1281, 1287 (4th

Cir. 1985) (stating that Title VII and §§ 1981 and 1983 do not “require an

employer to adopt a life of economic altruism and thereby immunize protected

class members from discharge or demotion despite their poor performance and

inadequate qualifications”). Manning failed to show that age was a determining

factor in the decision to fire him or that McGraw-Hill’s stated reasons for

terminating his employment were pretextual. We conclude that the district court

erred in denying McGraw-Hill’s Rule 50 motion for judgment as a matter of law.       2




      2
        Because we conclude there was insufficient evidence to support the jury
verdict finding McGraw-Hill discriminated against Manning on the basis of age,
the issues of whether McGraw-Hill acted willfully, whether the damage award
was excessive, whether Manning mitigated his damages, whether the district
court’s award of attorney fees to Manning was proper, and whether the district
court erred in denying Manning front pay are moot.

                                          12
                                       III.

      The district court’s denial of McGraw-Hill’s Rule 50 motion is

REVERSED and the case is REMANDED for entry of judgment as a matter of

law for McGraw-Hill on Manning’s age discrimination claims. The district

court’s award of attorney fees to Manning is REVERSED. The cross-appeal is

DISMISSED as moot.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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