                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 01-2090
                                  ___________


Paul R. Yancey,                      *
                                     *
         Plaintiff-Appellee,         *
                                     *
   vs.                               * Appeal from the United
                                     * States District Court
Weyerhaeuser Company,                 * for the Western District
Individually and d/b/a               * of Arkansas
DeQueen & Eastern Railroad Co., Inc. *
                                     *
         Defendant-Appellant.        *
                                     *
                                 __________

                         Submitted: December 12, 2001
                             Filed: January 24, 2002 (Corrected 2/8/02)
                                 __________

Before LOKEN and BYE Circuit Judges, and BOGUE,1 District Judge.
                               _________

BOGUE, District Judge.

      Weyerhaeuser appeals a jury verdict and an order of reinstatement in an age
discrimination case brought by Paul R. Yancey pursuant to the Age Discrimination

      1
        The Honorable Andrew W. Bogue, United States Senior District Judge for the
District of South Dakota, sitting by designation.
in Employment Act. The jury determined Weyerhaeuser willfully discriminated
against Yancey and awarded him $169,625. The District Court2 subsequently
awarded Yancey reinstatement and attorney fees.

        Weyerhaeuser raises five issues on appeal. First, that the evidence presented
at trial was insufficient to establish a prima facie case of age discrimination. Second,
that there was insufficient evidence of pretext and intentional discrimination to
uphold the underlying judgment. Third, that Yancey failed to mitigate his damages,
therefore, his back pay should be reduced. Fourth, that the District Court’s order
awarding equitable relief was in error. Fifth, that the District Court erred by refusing
Weyerhaeuser’s business judgment instruction. After careful consideration of these
issues, we affirm the judgment of the district court.

       Yancey began working for the DeQueen and Eastern Railroad on July 16, 1966.
The Railroad was soon thereafter acquired by Weyerhaeuser. Yancey rose to the
position of general maintenance foreman, also known as a Roadmaster. As
Roadmaster, Yancey’s primary responsibility was management of a crew that
maintained railroad tracks and bridges.

      Yancey’s son, Paul Yancey, Jr., was hired by the Railroad in March of 1993,
to work on the Maintenance of Way section crew.3 Yancey, Jr., reported to a “lead
man” on the section crew. Lead men managed the day-to-day operations of the
Maintenance of Way crew members and reported to Paul Yancey for instructions on
work assignments. Paul Yancey did not influence the pay or promotion of his son.

      2
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
      3
        The hiring committee that selected Yancey, Jr., included Marsha Paslay, the
human resource manager, and Paul Yancey. Paul Yancey recused himself from
consideration of his son. All other members of the committee knew of the familial
relationship.
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All pay increases were effective for every member of the Maintenance of Way
Department. Additionally, each pay increase had to be approved by J.D. Ventrcek,
Vice President and General Manager of the railroad, and Lynn Endicott,
Weyerhaeuser Vice-President, Southern Lumber Division.

      On February 2, 1998, Ventrcek told Yancey Sr., that one member of the family
had to leave the employment of the railroad. Yancey was also told that he would
receive a severance package only if he allowed Weyerhaeuser to downgrade his
personnel file to reveal marginal performance, but under no circumstances would his
son receive a severance package. Ventrcek then told Yancey that there was no reason
for him to attend a mandatory staff meeting later that afternoon.

       Later that evening, Marsha Paslay, from the human resources office, called
Yancey at home and told him to pick up the severance package that day because he
had a limited amount of time to determine if he would accept it. The package
included a letter stating the amount he would be paid upon termination, and a release
of claims against Weyerhaeuser under the ADEA.

       Yancey returned to work the following day and met with Ventrcek and Paslay.
Yancey told them he thought he had been terminated based upon his meeting with
Ventrcek and the severance letter. After Ventrcek informed Yancey he had not been
terminated, Yancey stated that he wanted to work. Ventrcek immediately told Yancey
to turn in his keys and all of his company property, clean out his desk, and leave the
premises under Paslay’s escort.

       Yancey was replaced by Glen Blackney, age 43. Blackney was the youngest
member of the management team. After his termination, Yancey tried unsuccessfully
to find employment. He has a ninth grade education, limited job skills, and lives in
a very small town in southern Arkansas.



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                                           I.

       Weyerhaeuser asserts the evidence was insufficient to establish a case of age
discrimination. This Court’s review of a jury verdict is deferential, and a verdict will
not be reversed for insufficient evidence unless no reasonable juror could have
returned a verdict for the non-moving party. See Ryther v. KARE II, 108 F.3d 832,
836 (8th Cir. 1997), cert. denied, 521 U.S. 1119 (1997). The evidence is considered
in the light most favorable to Yancey, assuming all conflicts in the evidence were
resolved in his favor, and providing him the benefit of all favorable inferences that
may be drawn from the proven facts. See Hathaway v. Runyon, 132 F.3d 1214, 1220
(8th Cir. 1997).

       Weyerhaeuser contends Yancey’s claim cannot succeed because Yancey chose
to resign. The facts do not support this assertion. Without notice or warning,
Weyerhaeuser told Yancey that either he or his son had to quit the railroad.
Weyerhaeuser stated they could not help his son, but offered Yancey a severance
package if he allowed the railroad to downgrade his personnel file. Weyerhaeuser
insisted that Yancey make his decision that day. Before Yancey made a decision, he
was told there was no point for him to attend a mandatory staff meeting that
afternoon. Yancey picked up his severance package that same day, but returned to
work the next day. Yancey was then told he must turn in his keys, clean out his desk,
and was escorted off the premises. These facts support the jury’s determination that
Yancey was forced to resign.



                                          II.

      Weyerhaeuser’s next assertion is that it let Yancey go because of the
company’s nepotism policy. The jury determined the nepotism policy was mere
pretext, and the evidence supports this decision. Although several other familial

                                           4
relationships existed within Weyerhaeuser, no evidence was presented that the
nepotism policy had ever been used to terminate another employee. Additionally, the
Yanceys worked together for five years. Weyerhaeuser was at all times aware of the
relationship. The jury could also have been persuaded by the haste in which the
decision was made. Yancey was told he had to make a decision that day, and had to
sign a waiver releasing his rights under the ADEA. The jury chose to credit Yancey’s
evidence and testimony over Weyerhaeuser’s assertions. That is the jury’s right, and
there is insufficient evidence to overturn its decision. See Gardner v. Buerger, 82
F.3d 248, 251 (8th Cir. 1996). The jury did not believe Weyerhaeuser terminated
Yancey because of its nepotism policy.

                                          III.

      Weyerhaeuser asserts that Yancey failed to mitigate his damages, therefore, his
back pay should be reduced. A wrongfully discharged employee has a duty to
mitigate his damages. See Denesha v. Farmers Ins. Exch., 161 F.3d 491, 502 (8th Cir.
1998), cert. denied, 526 U.S. 1115 (1999). Yancey must make reasonable efforts to
minimize his damages by attempting to find a new job. See Henderson v. Simmons
Foods Inc., 217 F.3d 612, 616, 617 (8th Cir. 2000).

       Yancey first attempted to find work at the DeQueen & Eastern Railroad, in a
position that would not violate Weyerhaeuser’s nepotism policy, but the railroad
refused. Next, Yancey enrolled with the railroad retirement board. The railroad
retirement board has a nationwide computer system that allows employers to access
information on potential applicants. Yancey also continued to monitor the DeQueen
classifieds, but all attempts to locate employment have been unsuccessful.

       Yancey has a ninth grade education, limited job skills, and lives in a small town
in southern Arkansas. Yancey’s job skills were formed during his 31 year career as



                                           5
a railroad employee. It was not unreasonable for the jury to find that Yancey had
made a reasonable effort to mitigate his damages by finding employment.

                                          IV.

        Weyerhaeuser contends it should not be required to reinstate Yancey to the
position of Roadmaster due to its nepotism policy. The district court’s decision to
order reinstatement is reviewed for an abuse of discretion. See Williams v. Kisko,
Inc., 964 F.2d 723, 730 (8th Cir.1992), cert. denied, 506 U.S. 1014 (1992). Equitable
relief in an ADEA case is a remedy fashioned upon the consideration of all relevant
circumstances. See Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1099 (8th Cir.
1982). The district court did not abuse its discretion by reinstating Yancey.

       The district court determined Weyerhaeuser voluntarily violated its nepotism
policy by hiring Yancey’s son. Weyerhaeuser then allowed the relationship to
continue for five years, and even encouraged the relationship by knowingly placing
the Yanceys in the same unit. The district court found Weyerhaeuser tolerated the
relationship for five years because it either chose to ignore the relationship, or
because it tacitly approved of the relationship. Either way, the district court did not
abuse its discretion in finding that Weyerhaeuser effectively waived its nepotism
policy.

                                          V.

       Weyerhaeuser’s final argument is that the district court erred by refusing
Weyerhaeuser’s business judgment jury instruction. The district court’s jury
instructions are reviewed for abuse of discretion, and the issue is whether the
instruction fairly and adequately submitted the issue to the jury. Karcher v. Emerson
Elec. Co., 94 F.3d 102, 510 (8th Cir. 1996), cert. denied, 520 U.S. 1210 (1997).
Instead of using the instruction proposed by Weyerhaeuser, the Court used the

                                          6
standard Eighth Circuit Model Jury Instruction for business judgment. The use of the
Eighth Circuit’s Model Jury Instruction was not error as it fairly and adequately
submitted the issue to the jury.

      Accordingly, we affirm.

      A true copy.

         Attest:

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




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