                                    United States Court of Appeals,

                                              Fifth Circuit.

                                             No. 91–8666.

                       JAMES B. DAVIS, Plaintiff–Appellee, Cross–Appellant,

                                                    v.

The FIRST NATIONAL BANK OF KILLEEN, TEXAS, Defendant–Appellant, Cross–Appellee.

                                             Nov. 9, 1992.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.

          WIENER, Circuit Judge:

          In this case, implicating the Age Discrimination in Employment Act (ADEA),1

Appellant/Cross–Appellee First National Bank of Killeen (the Bank) convinced the district court to

grant part of the Bank's motion for judgment notwithstanding the verdict (j.n.o.v.) to the extent the

jury found that the Bank willfully violated the ADEA by constructively discharging Davis. The jury

had awarded Davis $75,000 in damages. The Bank appeals the court's refusal to grant the remaining

part of the motion for j.n.o.v. for other amounts awarded by the jury in connection with the discharge

of Davis by the Bank, which the jury found to be constructive and to be discriminatory on the basis

of age. By cross appeal, Davis complains of the district court's j.n.o.v. reversing the jury's finding that

the Bank knowingly violated the ADEA, and insists that the trial court erred in calculating the front

pay awards in favor of Davis. Acknowledging that the facts present a close question but concluding

nonetheless that the evidence is insufficient to supply the required nexus between the Bank's treatment

of Davis and his age, we reverse the judgment of the district court and render judgment dismissing

Davis's action.

                                                     I

                                    FACTS AND PROCEEDINGS

          Davis went to work for the Bank in 1955 and was employed there continuously until he

   1
       29 U.S.C. §§ 621 et seq.
resigned effective May 1, 1988, a period of approximately 33 years. In the course of his banking

career, Mr. Davis rose to the position of Vice President in Charge of Commercial and Consumer

Loans, a title he held at the time the present holding company owner acquired the Bank. He was also

a voting member of the Loan Committee at that time, but was relieved of voting status following the

change in ownership.

       In July of 1987, Davis suffered a heart attack and was away from work for approximately five

months. In November of that year, his doctor advised that Davis could return to work, beginning on

a half-day basis, but the Bank's president advised Davis to stay home until he could return on a

full-time schedule. In mid-December Davis met with the Bank's president to discuss full-time return

and was advised that when he did it would be as supervisor of the dealer department, at the same

salary and with the title of Vice President.

       Prior to his heart attack, Davis had been a member of a task force organized to analyze dealer

loans and make recommendations for improved procedures. Following his heart attack, Davis was

replaced on the task force by Mr. Steve Mills, an executive employee transferred to the Bank from

another bank owned by the same holding company. In his 30's, Mills also replaced Davis in the

consumer loan department of the Bank.

       When Davis returned to work he found he was the only member of the dealer department and

that there were no personnel there for him to supervise. He did not have a secretary or anyone under

his direct supervisio n to assist him. Neither before his heart attack nor after his return was Davis

advised as to his duties, functions or responsibilities in the dealer department. He was furnished no

documentation regarding changes in policies or procedures in that department, and his letter to the

Bank's president concerning goals for the department went unanswered. In the conduct of his new

assignment he was criticized by voting members of the Loan Committee in ways that Davis

considered inconsistent and unfair.

       In April, 1988, the president convened a meeting with Davis at which Mr. Rick Carlisle was

present. Davis was advised that he had lost credibility with and the confidence of management and

ownership. The president advised Davis to consider an early retirement resignation; that otherwise
he would face being placed on probation. Carlisle, former President, CEO and Chairman of the

Board of the Bank testified as to Davis's loyalty and competence but acknowledged that in light of

Carlisle's impression that the new ownership group had decided to replace the previously existing

management team with new employees more attuned to the style and po licy views of the new

ownership, Davis's future was bleak. It was Carlisle's opinion that the new ownership had decided

to put their own people in to replace executives of the Bank whose tenure pre-dated the holding

company's acquisition. Carlisle was satisfied that the officers from the previous regime who still

remained at the Bank simply did not fit in with the new concepts brought in by the holding company

after the acquisition. He speculated that new management could ease out members of the preexisting

regime by making it difficult for them to get their loans approved. Carlisle observed that 15 officers

from the former regime were no longer with the Bank; that only one was an active officer; and that

a second was a member of the Board only. Even Carlisle admitted his disagreement with style and

policy of the new management. According to Davis, Carlisle said nothing during the meeting with

the Bank's president, and Davis himself gave no indication to the President whether he would resign

as requested, effective May 1, 1988, or continue subject to probation. Davis stated that he knew,

however, that the die was cast by the tone of the meeting and the statements about loss of confidence

and credibility.

        Another former officer, Mr. Jack Vernon, testified that in his opinion the holding company

intentionally weakened the ability of the pre-existing officers to perform, and that new management

preferred not to have members of the pre-acquisit ion officer corps, with their close ties to the

community, involved in running the Bank. Vernon testified that he observed a pattern of replacing

members of the pre-existing team with younger employees.

        Still without advising of his decision, Davis asked t he president on the day following the

meeting with Carlisle, for permission to take three weeks' vacation which permission was granted.

Despite Davis's postponement of making his decision, Carlisle wrote on that day (April 19, 1988)

announcing to other bank personnel that Davis would retire, effective May 1. Thereafter, Davis

wrote to Carlisle, the Bank president and other members of the Board, recounting his version of the
April 18th meeting, his shock, his financial needs, and the inevitability of his termination by current

management, concluding that he had no choice but to end his 33 years of service by resigning

effective May 1, 1988. He was again replaced by Mills.

       Davis testified that, following the effective date of his termination, he sought employment in

and around Killeen, attempting to sell water purifiers, to obtain an insurance license, and to become

a salesman for A.L. Williams Company. He further testified that efforts to obtain bank employment

were fruitless given the condition of the banking industry in the Killeen area, as well as his age and

physical condition but that he had remained willing to return to the Bank as Vice President in Charge

of Commercial and Consumer Loans.

       According to witnesses for the Bank, new management determined on the basis of internal

audits that some $5 million in loans had to be charged off and that significant changes were needed

in the Bank's lending policy as well as other policies and procedures. Stricter Comptroller of the

Currency guidelines and regulations as well as the chaos in the banking industry in Texas and

surro unding states were other reasons attributed by the Bank's witnesses to the need for changes.

There is no dispute but that drastic policy and philosophy changes were made and that the changes

were shocking to employees whose service pre-dated the change in ownership. This was particularly

true for loan officers whose procedures were changed most drastically. Also uncontested is the fact

that when Mills was brought in from another bank following Davis's heart attack, he (Mills) was

under the ADEA's triggering age of 40 years, and his salary was "slightly less" than Davis's.

       Witnesses for the Bank also testified that Davis demonstrated a lack of adaptability to the new

lending environment and that his deficiencies were pointed out to him but that, in the opinion of the

Bank's president, Davis's performance did not improve, leading to the meeting of April 18, 1988. The

president testified that his purpose in calling the April 18th meeting was to place Davis on probation,

and that when the 90–day probation was announced to Davis he responded that he was not going to

accept probation. The president testified that he was surprised by the reaction because probation was

not offered as a choice; but that in light of the unexpected reaction, he told Davis he should consider

early retirement and that the Bank would confect an early retirement package for Davis to consider.
According to the president, he was informed by Davis the next day that he (Davis) would take early

retirement after using his remaining vacation prior to the effective date of resignation. April 19, 1988,

was Davis's last day at work.

        The early retirement package proposed by the Bank was presented to and accepted by Davis

on April 27, 1988. In addition, Davis received a lump sum distribution of $204,000 from the Bank's

profit sharing plan, of which $179,340.74 represented the Bank's contributions, earnings and

forfeitures.

        The record reflects that officers of the Bank who were 40 years of age or older and whose

employment pre-dated the holding company's acquisition were still employed by the Bank at the time

of trial, and that new officers over the age of 40 and even over the age of 50 had been hired after the

acquisition. The Bank's witnesses also disputed Davis's version of his post-termination efforts to

obtain employment, contending that he made no significant efforts until his severance pay was

exhausted and that he elected to work part-time as a matter of choice.

        Davis filed suit in federal district court on February 20, 1990. On August 30, 1990, Davis

filed his First Amended Complaint alleging 1) that he was demoted by the Bank because of his age,

in violation of the ADEA; 2) that he was constructively discharged from employment by the Bank

because of his age; 3) that he was defamed; 4) that the Bank intentionally inflicted emotional distress

on him; and 5) that the bank acted with wanton disregard, warranting an award of exemplary

damages.

        On September 19, 1990, the district court granted Davis's motion to dismiss his claims for

defamation and intentional infliction of emotional distress, leaving for trial only his claims for age

discrimination and exemplary damages. On October 16, 1990, the court granted parti al summary

judgment in favor of the Bank, holding that exemplary damages are not recoverable under the ADEA.

        The case was tried to a jury on October 25 and 26, 1990. The Bank made an unopposed

motion for directed verdict at the close of Davis's evidence which motion the court granted,

dismissing the claim of demotion based on age. When all evidence was in, the jury returned a verdict

for Davis, awarding him $75,000 for the Bank's willful violation of the ADEA by constructively
discharging Davis.

          Each party made post-judgment motions. The Bank's motion for j.n.o.v. was granted in part,

the court reversing the jury's finding of willfulness. Final judgment was entered on December 3,

1991, awarding Davis $75,000 in back pay, $131,800 in front pay for four year's salary, pre-judgment

interest at the rate of 10% per annum, and attorney's fees equaling one-third of the judgment. The

Bank timely filed its notice of appeal on December 13, 1991, and Davis timely filed his notice of

cross-appeal on December 20, 1991.

                                                    II

                                               ANALYSIS

A. Standard of Review

          A substantive review challenging a jury verdict is reviewed under our long-standing standard

articulated in Boeing v. Shipman.2 Under that standard we seek to determine whether

          reasonable and fair-minded [jurors] in the exercise of impartial judgment might reach different
          conclusions.... A mere scintilla is insufficient to present a question for the jury.... However,
          it is the function of the jury as t he traditional finder of facts, and not the Court, to weigh
          conflicting evidence and inferences, and determine the credibility of witnesses.

In recent years we have applied the test of Boeing v. Shipman in numerous age discrimination cases.3

B. Waiver

           Before addressing the substantive issue of sufficiency of the evidence to support the jury

verdict, we must answer the preliminary procedural question whether the Bank waived its right to

challenge the verdict when it failed to renew its motion for a directed verdict at the close of all

evidence. Apparently the first time this issue was raised was on appeal. On the one hand, we agree

with our colleagues of the Seventh Circuit that appellate courts should "not view favorably the raising

of an issue, particularly a technical one, for the first time on appeal."4 We have observed on the other

hand, however, that both this circuit and the Seventh Circuit have approached this issue with a "liberal

   2
       411 F.2d 365, 374–75 (5th Cir.1969) (en banc).
   3
       See, e.g., Normand v. Research Inst. of Am., 927 F.2d 857, 859 (5th Cir.1991).
   4
    Pittsburgh–Des Moines Steel Co. v. Brookhaven Manor Water Co., 532 F.2d 572, 576 (7th
Cir.1976).
spirit" in pursuit of "securing a fair trial for all concerned in the quest for truth."5 In essence, the

circuit courts have inquired whether prejudice would result from waiving technical compliance with

Fed.R.Civ.P. 50(b).

       At the close of Davis's case, the Bank made two motions for directed verdict, one of which

was granted and the other declined "at this time." The Bank then called one witness, after which

Davis was recalled to the stand. Then both sides closed, after only a few minutes had elapsed since

the Bank had made the two motions for directed verdict. This de minimis lapse equates with the one

we forgave in Merwine v. Board of Trustees. 6 We are constrained to do so here.

C. Evidence of Age Discrimination

           Although there is agreement on many of the facts of this case, the parties vigorously contest

those surrounding the issues of constructive discharge and willfulness on the part of the Bank. Based

on its version of the facts, the Bank insists that Davis had no reasonable basis to conclude that his

discharge was inevitable merely because the Bank proposed a 90–day probationary period. Davis on

the other hand insists that he was given a Hobson's Choice because whether he accepted the proposal

of continued employment under probation or took early retirement by resigning as suggested by the

Bank, he was on the way out in a very short time. Also, Davis insists that the jury correctly found

not only constructive discharge based on age but intentional or willful conduct by the Bank in its

actions.

       Those contested issues become moot, however, if our examination of the evidence in the

record of this case convinces us that such evidence is insufficient to demonstrate that the Bank's

treatment of Davis was driven by discriminatory animus based on age. For purposes of examining

the sufficiency of such evidence, then, we assume without deciding that Davis was constructively

discharged by the Bank, and that the Bank did so willfully.

   5
    Bohrer v. Hanes Corp., 715 F.2d 213, 217 (5th Cir.1983) (quoting Bonner v. Coughlin, 657
F.2d 931, 939 (7th Cir.1981) (quoting Ohio–Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d
821, 825 (7th Cir.1978), cert. denied 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979))),
cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984).
   6
    754 F.2d 631, 635 (5th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 76, 88 L.Ed.2d 62
(1985).
       Although recent statutory enactments and at least one judicial decision have created narrow

exceptions to the doctrine of at-will employment in Texas, that doctrine is alive and well, particularly

in the private sector—so much so as to require no citation here. Davis does not allege an

employment contract with the Bank and thus does not dispute that his employment was subject to

termination without cause. Rather, he insists that he was terminated for cause but that such cause

was illicit, i.e., that at age 53 he was terminated for no real reason other than to permit the Bank to

replace him with an employee under the age of 40, at a lesser salary.

       Even though Davis stated a cause of action upon which relief could be granted under the

ADEA when he alleged and proved that he was over the age of 40 when his employment ceased and

that his replacement was under the age of 40, a case for age discrimination here is at best extremely

weak. Evidence presented by Davis and by the Bank paints a clear picture of new corporate

ownership coming in with new and drastically different business methods, policies and philosophies,

and implementing them to a large extent by replacing carry-over employees from the old regime with

new bank officers who were willing and able to implement the plans of the new owners. Significantly,

however, the evidence demonstrates that among those from the prior regime who were terminated

there were employees both over and under the age of 40; and that among the new hires were persons

both over and under the age of 40.

       True, the record is not totally devoid of evidence that might suggest age discrimination. In

addition to the key fact that Davis was replaced by someone significantly younger than he, the record

demonstrates that Davis worked without criticism by the new regime for almost two years prior to

his heart attack; that he was asked to think about early retirement; that his letter concerning

departmental goals went unanswered; and that, while it is true that even the younger employees of

the prior regime were being closely scrutinized and required to improve their performances,

replacements tended to be younger than their immediate predecessors.

       On the other hand, the record evidence supporting the Bank's proffer of non-discriminatory

reasons for Davis's problems is strong. Clearly he did not adapt to the new standards imposed by the

new owners. This failure to adapt—which Davis admits but attempts to justify by offering criticism
of the new procedures adopted by his new employers—is strikingly similar to the justification

attempted by the plaintiff in Guthrie v. Tifco Industries,7 which we rejected as insufficient to

overcome the valid reasons for termination given by the employer in overcoming allegations of age

discrimination. The testimony of Carlisle and Vernon, far from indicating age discrimination,

confirms the Bank's position that Davis was among a number of pre-acquisition employees who had

failed to accept or adjust to the changes wrought by the new regime. Even though Davis's job

performance did not constitute a "deliberate violation of both company policies and management

directives" as had the performance of the employee in Bohrer v. Hanes,8 there is sufficient evidence

that, upon his return, Davis simply could not or would not adapt to the new standards on which his

superior insisted.

          Neither can we overlook the fact that the "young" employee who replaced Davis had to be

brought into the Bank originally when Davis suffered his heart attack and could not work for many

months. That replacement employee was already working for another bank owned by the same

holding company; absolutely nothing approaching invidious age discrimination can be inferred from

that initial occurrence; and in turn it supports the non-discriminatory explanation given by the Bank

for having the same younger employee replace Davis after permanent severance of employment.

          Moreover, a careful reading of the record demonstrates that the jury heard repeated references

to the pre-acquisition employees as the "old" employees. Although ostensibly meaning nothing more

than that such persons worked for the Bank before the holding company acquired it, we speculate

that the jury may well have become confused—possibly by design of counsel—in thinking the

reference was one to chronological age, not merely to preacquisition employment.

          We repeat that it is not our province to re-weigh the evidence and second guess the jury, and

the foregoing discussion should not be read as though we are doing so. Under Boeing v. Shipman,9


   7
   941 F.2d 374, 378–79 (5th Cir.1991), cert. denied, ––– U.S. ––––, 112 S.Ct. 1267, 117
L.Ed.2d 4954 (1992).
   8
       715 F.2d at 218–19.
   9
       411 F.2d at 374–75.
we are only permitted to determine whether there is sufficient evidence to permit reasonable jurors

to reach different conclusions. The different conclusions referred to here are not whether Davis was

treated fairly, or whether the Bank acted unfairly toward Davis, or whether Davis's criticism of the

new policies was valid, or whether the Bank "set up" Davis after his return so that, as a member of

the pre-acquisition coterie of officers, he was bound to stumble and therefore be fired, or anything

else relative to the employer-employee relationship except the part if any played by age in the parting

of the parties' ways. When we scour the record for evidence of the nexus between Davis's age and

his willful constructive discharge (which we here assume), we find at most the proverbial scintilla but

nothing more. Unlike the record in Normand v. Research Institute of America in which we found

"just enough evidence to support the jury's verdict,"10 the record here simply does not contain that

"just enough" modicum of evidence of age discrimination to supply that all-important nexus between

the Plaintiff's age and his assumed constructive discharge. We hold, therefore, that the district court

erred in refusing to grant the Bank's motion for judgment n.o.v. on the issue of the discrimination

proscribed by the ADEA.

D. Other Issues on Appeal and Cross–Appeal

          As the district court partially granted the Bank's motion for j.n.o.v. to the extent of willful or

intentional age discrimination, and as we now hold that the evidence is not sufficient to support the

jury's finding of age discrimination vel non, our reversal and rendering of a take nothing judgment

against Davis renders moot the other issues presented by the Bank's appeal and Davis's cross appeal.

And as we are thus not required to address those issues, we shall not.

                                                     III

                                              CONCLUSION

          Even when we assume for the sake of our consideration here that Davis was constructively

discharged by the willful acts of the Bank, a careful combing of the record reveals not only a surplus

of evidence to support the Bank's contention that it made no employment decision vis-à-vis Davis on

the basis of age; but likewise a dearth of evidence to support the essential finding of the element of

   10
        Normand, 927 F.2d at 865.
age discrimination. We hold, therefore, that the evidence in the record of this case is insufficient to

support the jury's factual finding of age discrimination by the Bank, so we REVERSE the judgment

of the district court and RENDER a take nothing judgment against Davis, dismissing his age

discrimination claims under the ADEA, and likewise dismissing all remaining issues of the Bank's

appeal and Davis's cross-appeal.
