                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 99-2879WA
                                   _____________

Charles Tatom,                           *
                                         *
             Appellee,                   *
                                         * On Appeal from the United
      v.                                 * States District Court
                                         * for the Western District
                                         * of Arkansas.
Georgia-Pacific Corporation,             *
                                         *
             Appellant.                  *
                                    ___________

                               Submitted: April 14, 2000
                                   Filed: October 10, 2000
                                    ___________

Before McMILLIAN, ROSS, and RICHARD S. ARNOLD, Circuit Judges.
                             ___________

RICHARD S. ARNOLD, Circuit Judge.

      Georgia-Pacific Corporation appeals from the District Court's denial of its
motion for judgment as a matter of law following a jury verdict in favor of Charles
Tatom in his action under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621, et seq. Tatom claimed that his suspension in May 1994 was a
constructive discharge and was based upon his age. Georgia-Pacific argues that the
evidence was insufficient to support the verdict. For the reasons discussed below, we
reverse the judgment of the District Court and remand with instructions to enter
judgment in favor of Georgia-Pacific.
                                          I.

       In 1956, at the age of 21, Tatom began working in the paper-making industry as
an hourly employee. In 1983, Tatom was moved up from an hourly position to a front-
line supervisor at the paper mill owned by Great Northern Nekoosa Corporation in
Ashdown, Arkansas. Roger Brear, General Manager of the mill, approved the
promotion. In 1990, Georgia-Pacific purchased the Ashdown mill from Great Northern
in a hostile takeover. At the time, Tatom was assistant superintendent of the No. 62
paper machine.

       In the fall of 1992, upon the expiration of a two-year employee protection plan
for the salaried workers, Georgia-Pacific initiated a reorganization and downsizing
which ended in late 1993. During the downsizing, approximately 100 workers lost
their jobs, of whom approximately 20 were salaried employees. Two of the seven
department heads at the mill were among those salaried employees who lost their jobs,
essentially based upon Brear's decision. One was 58 years of age,1 and the other was
62. The remaining five department heads were between 30 and 50 years old.

       In August 1992, Karen Dickinson, Fine Paper Manager at the mill, and Tim
Crawford, Production Manager of the mill, promoted Tatom to superintendent over
both Number 61 and Number 62 paper machines. With this promotion, Dickinson
became Tatom's immediate supervisor. Near the end of 1993, Tatom told Dickinson
that he planned to retire in March 1994. Dickinson told him that Georgia-Pacific did
not want him to retire, and she, Crawford, and Brear prevailed upon Tatom not to
resign.


      1
       This individual, Walter Rothermel, prevailed in an age discrimination action
against Georgia-Pacific, Rothermel v. Georgia-Pacific Corp., 78 F.3d 589 (Table),
1996 WL 91925 (8th Cir. 1996) (per curiam). This fact was not known by the jury in
the present case.

                                         -2-
      In February 1994, Dickinson recommended a raise for Tatom, and Brear
approved it. In April 1994, the superintendent of No. 64 machine quit without notice,
and Tatom was asked and agreed to take over as superintendent of that machine. The
No. 64 machine, one of the largest papermaking machines in the world, was not
operating up to standard, and it was felt that Tatom could help. During the first week
of May 1994, Dickinson gave Tatom a commendable rating on his annual review.

       On Friday, May 13, 1994, No. 64 machine was shut down for repairs. Georgia-
Pacific safety regulations require all employees to "lock out" any section of a machine
before entering it for repair work. Each employee must use his own personal lock on
the lock box, even if another employee already locked out that section of the machine
with his own lock. This precaution is to prevent someone from starting up the machine
while another employee may still be working in it. It is undisputed that Tatom did not
follow proper safety procedures in locking out No. 64 machine on May 13. An hourly
employee working on the machine under Tatom's supervision filed a grievance with the
union asserting that Tatom forced him into the press section of No. 64 machine
knowing that section was not properly locked out. Following an investigation by a fact-
finding committee, the mill's labor-relations manager who served on the committee
recommended to Dickinson that Tatom be fired.

       By letter dated May 20, 1994, Dickinson told Tatom that, on the basis of
statements and witness accounts of the May 13 incident, she had concluded that
Tatom's conduct was unprofessional and violated "the very essence of safety." In
addition, Dickinson told Tatom that his conduct as superintendent "showed disrespect,
sarcasm, mistreatment, and a cavalier attitude," rendering him a hindrance to morale
and good order. She told Tatom that as "corrective measures" he was suspended
effective May 21, 1994, without pay for 120 days, would not receive a merit increase
for 1994, and that upon his return to work he would be expected to conduct himself in
a professional manner. The letter concluded as follows: "Your contributions to this
mill have been many and your expertise is a tremendous asset! I value our professional

                                          -3-
relationship and future prospects for continued success. I will work diligently to
support you in all endeavors, with the understanding that only you can effect the
change."

        Tatom informed Dickinson that he was quitting rather than accepting the
suspension. He was 59 years old at the time. Charles Sutton, who was 56 years old
at the time, was promoted to replace Tatom on the No. 64 machine. Tatom filed this
action claiming that the suspension and attendant conditions constituted a constructive
discharge and was motivated by age, in violation of the ADEA.2

                                           II.

       The trial focused to a large degree on what actually transpired at No. 64 machine
on May 13, 1994. There was testimony that Tatom worked under another employee's
lock, and that he also ordered hourly employees into the machine after they told him
it was not properly locked out. Tatom admitted that he worked under another
employee's lock on the day in question, but he claimed this was a common safety-rule
violation at the mill at the time, and that no danger was posed. He denied that he
ordered any other employee to work in an area of the machine that was not properly
locked out.

       Tatom testified that he had no idea there would be any trouble over the incident
until he returned to the mill the next day and heard rumors that "they're going to ask for
your job." On that Tuesday he received a copy of the union grievance and went to

      2
        The District Court initially granted Georgia-Pacific's motion for summary
judgment. Tatom moved for reconsideration based on newly discovered evidence – the
affidavit of Stephen Wilt, the former head of Human Resources at Georgia-Pacific.
The District Court granted Tatom's motion, and the case proceeded to trial. Wilt did
not testify at trial, but Tatom claims that other witnesses testified to the substance of
what was in Wilt's affidavit.

                                           -4-
Dickinson's office where he found her with three or four other employees. He told
Dickinson "they are after my job." He admitted that he used crude language, for which
he later apologized.

       Tatom testified that he felt the investigation was unfair, and that the company
was making an example of him. He presented evidence of other instances of safety-rule
violations that were not punished so severely. He acknowledged, however, that if
Dickinson, Brear and others in the company believed the hourly employees' version of
what happened on May 13, rather than his own account, his termination would have
been justified. After some equivocating, Tatom adopted his deposition testimony that
Brear and Dickinson really believed the other employees' version over his own.

        Tatom testified that he decided to quit because he "could not live with" the
suspension and attendant conditions, which he found to be "intolerable." He felt that
by accepting the suspension he would be agreeing with something that wasn't true. As
a supervisor he needed the respect of his people, and he thought he wouldn't have that
if he took the suspension and returned.

      As evidence of age discrimination, Tatom showed that older people in some
instances were replaced by younger people at the mill during the 1992-93 downsizing.

       The jury returned a verdict in Tatom's favor in the amount of $670,000.00, which
was doubled to $1,340,000.00, based upon the finding that the violation of the ADEA
was wilful. The Court awarded Tatom an additional $109,617.00 in front pay,
$143,729.50 in attorney's fees, and $15,531.47 in costs, for a total judgment in the
amount of $1,608,877.97. The District Court denied Georgia-Pacific's motion for
judgment as a matter of law, and this appeal followed. Georgia-Pacific argues that
there is insufficient evidence to support the verdict.




                                          -5-
                                          III.

       Under the ADEA, it is "unlawful for an employer . . . to discharge 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).
Liability depends on whether age " 'actually motivated the employer's decision.' That
is, the plaintiff's age must have 'actually played a role in [the employer's decision-
making] process and had a determinative influence on the outcome.' " Reeves v.
Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2105 (2000), quoting Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610 (1993).

       Tatom presented no direct evidence of discrimination; thus, the three-step
burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
800-06 (1973), applies to this case. See Regel v. K-Mart Corp., 190 F.3d 876 (8th Cir.
1999). Under this analysis, the plaintiff has the initial burden of establishing a prima
facie case, thereby creating a rebuttable presumption of discrimination. Once a plaintiff
makes a prima facie case, the employer can rebut the presumption of discrimination by
producing evidence of a legitimate nondiscriminatory reason for its decision to
terminate the plaintiff. If the employer does so, the burden shifts back to the plaintiff
to demonstrate that the stated reason was actually a pretext for discrimination.

       “[A] plaintiff’s prima facie case, combined with sufficient evidence to find that
the employer’s asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods.,
Inc., 120 S. Ct. 2097, 2109 (2000) (emphasis ours). However, such evidence will not
necessarily permit that conclusion. Id. The ultimate question remains whether the
employer intentionally discriminated, and the ultimate burden of proving intentional
discrimination remains with the plaintiff. Reeves, 120 S. Ct. at 2108; Taylor v. QHG
of Springfield, Inc., 218 F.3d 898, 900 (8th Cir. 2000).


                                          -6-
       To establish a prima facie case of age discrimination under the ADEA, Tatom
had to show (1) he was a member of a protected group, i.e., at least 40 years of age,
(2) he was qualified for his position, (3) that he was constructively discharged, and (4)
he was replaced by a person not in the protected class, or similarly situated employees
who were not members of the protected class were treated more favorably. See Clark
v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000); Hindman v. Transkrit Corp., 145 F.3d
986, 990 (8th Cir. 1998).

        A district court should render judgment as a matter of law only when "a party has
been fully heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue." Fed. R. Civ. P. 50(a). The district
court, and the appellate court on de novo review, "should review all of the evidence in
the record. In doing so, however, the court must draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility determinations or weigh
the evidence." Reeves, 120 S. Ct. at 2110. Thus, although the court should review the
record as a whole, it must disregard all evidence favorable to the moving party that the
jury is not required to believe. "That is, the court should give credence to the evidence
favoring the nonmovant as well as that evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that evidence comes from
disinterested witnesses." Id. (quotation omitted). "This demanding standard reflects
our concern that, if misused, judgment as a matter of law can invade the jury's rightful
province." Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996).

      We first focus on whether there was a "legally sufficient evidentiary basis for a
reasonable jury" to find that Tatom was constructively discharged.3 Constructive
discharge occurs when an employer deliberately renders the employee's working
conditions intolerable and thus forces the employee to quit his job. Spears v. Missouri


      3
      Constructive discharge is Tatom's sole theory of liability. He does not claim
damages for the suspension itself.

                                           -7-
Dep't of Corrections & Human Resources, 210 F.3d 850, 854 (8th Cir. 2000); Allen v.
Bridgestone/Firestone, Inc., 81 F.3d 793, 796 (8th Cir. 1996) (quoting Johnson v.
Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981)). The employer's actions must
have been intended to force the employee to quit. Allen, 81 F.3d at 796. The plaintiff
can satisfy the intent requirement by showing that his resignation was a reasonably
foreseeable consequence of his employer's discriminatory actions. Id.

      Additionally, to prove that a constructive discharge occurred, the plaintiff must
demonstrate that a reasonable person would find the working conditions intolerable.
The intolerability of working conditions is judged by an objective standard, not the
employee's subjective feelings; the question is whether working conditions were
rendered so objectionable that a reasonable person would have deemed resignation the
only plausible alternative. Spears, 210 F.3d at 854-55; Allen, 81 F.3d at 796.

       Upon review of the entire record, we conclude the District Court erred in holding
there was sufficient evidence to support a finding that Tatom had been constructively
discharged. Tatom presented no evidence that it was Georgia-Pacific's intention to
force his resignation by suspending him for 120 days. To the contrary, all the evidence
points to the fact that Georgia-Pacific valued Tatom as an employee. Furthermore, no
reasonable juror could find that the suspension and attendant conditions rendered
continued employment with Georgia-Pacific objectively intolerable. In a variety of
cases, this Court has held that such things as loss of supervisory responsibilities, a
feeling of being unfairly criticized, dissatisfaction with work assignments, and loss of
pay are insufficient to constitute a constructive discharge. See Spears, 210 F.3d at
855; (criticism, reprimand, and the denial of a transfer request did not make conditions
intolerable); Breeding v. Arthur Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir. 1999)
(feeling of being unfairly criticized); Hanenburg v. Principal Mut. Life Ins. Co., 118
F.3d 570, 575 (8th Cir. 1997) (special scrutiny and criticism of employee's conduct);
Allen, 81 F.3d at 796 (suspension for three days without pay due to an alleged


                                          -8-
customer complaint, and plaintiff's being told that if he were not pleased with the denial
of his transfer request he could quit or become a floater).

       Even assuming Tatom established a prima facie case of age discrimination and
that there was sufficient evidence for the jury to reject Georgia-Pacific's stated reason
for imposing a 120-day suspension – namely, the safety-rule violation and Tatom's
behavior during the investigation – we conclude that no rational jury could find that
Tatom's suspension was the result of intentional discrimination based on age. As noted
above, in an ADEA case it may not be enough for a jury to disbelieve the employer; the
fact finder must have evidence on which to base a reasonable belief that age was a
determining factor. Reeves, 120 S. Ct. at 2109. Here the main evidence of any age
bias on the part of Georgia-Pacific was in the context of the 1992-93 downsizing.
Tatom claims that other employees were less severely treated, but some of these were
older employees, and in no instance was there a finding of conduct as serious as the
findings against Tatom. There is no reasonable basis for a finding of intentional
discrimination based upon age.

       Accordingly, we conclude that Georgia-Pacific was entitled to judgment as a
matter of law. We reverse the judgment of the District Court and remand with
instructions to enter judgment on behalf of Georgia-Pacific. A jury verdict should not
lightly be set aside, but in this case our duty is to do so.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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