                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
      ___________

      No. 96-2936
      ___________

James E. Jarvis,                       *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Sauer Sundstrand Company,              *
                                       *
           Appellee.                   *
      __________
                                           Appeals and Cross-Appeals from the
      No. 96-3068                          United States District Court for the
      __________                           Southern District of Iowa.

James E. Jarvis,                       *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Sauer Sundstrand Company,              *
                                       *
           Appellant.                  *
      __________

      No. 96-3902
      __________

James E. Jarvis,                       *
                                       *
            Appellant,                 *
                                       *
      v.                                *
                                        *
Sauer Sundstrand Company,               *
                                        *
           Appellee.                    *
      __________

      No. 96-3904
      __________

James E. Jarvis,                       *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Sauer Sundstrand Company,              *
                                       *
            Appellant.                 *
                                  ___________

                            Submitted: April 3, 1997
                               Filed: June 17, 1997
                                 ___________

Before MAGILL1 and MURPHY, Circuit Judges, and GOLDBERG,2 Judge.
                           ___________




      1
        The Honorable Frank J. Magill was an active judge at the time this case was
originally scheduled for oral argument on March 14, 1997, and assumed senior status
on April 1, 1997, before the opinion was filed.
      2
        THE HONORABLE RICHARD W. GOLDBERG, Judge, United States Court
of International Trade, sitting by designation.

                                        -2-
MAGILL, Circuit Judge.

    This case involves James Jarvis's claim that his
employer,   Sauer   Sundstrand      Company   (Sundstrand),
discriminated against him on the basis of age. Following
a jury verdict in Jarvis's favor, the district court3
granted Sundstrand's motion for judgment as a matter of
law (j.a.m.l.) only with respect to the willfulness
element of Jarvis's claim.       The district court denied
Sundstrand's motion for j.a.m.l. with respect to the jury's
finding that age motivated Sundstrand's decision to
redeploy Jarvis and that Jarvis was constructively
discharged. Jarvis appeals the partial grant of j.a.m.l. and
Sundstrand cross-appeals the partial denial. We affirm.

                                        I.

    Sundstrand, formed in 1989, is in the hydraulic pump
business. In 1971, Sundstrand's predecessors established the
Ames, Iowa plant, where Jarvis worked.             Sundstrand
struggled financially throughout the early 1990's. In
the face of financial difficulty, Sundstrand reorganized,
redeployed employees, conducted voluntary and involuntary
layoffs, and offered early retirement plans.

    Jarvis began working at the Ames, Iowa plant in 1971.
In   1992,  Jarvis   worked   as  a   Material   Logistic
Administrator in a department with twelve other
employees. In April of 1992, David Haynes replaced Roger
Beckett as Director of Operations Planning and Jarvis's

      3
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.

                                         -3-
supervisor.    Jarvis had received performance reviews
throughout his employment. He typically scored a "4" on
a "1" to "5" scale. Although Jarvis claims he was not
told of the change, Sundstrand asserts that in October of
1992, "5" went from being the highest to the lowest
rating. Jarvis received a year end review from Haynes on
December 17, 1992.    This review was not all good and
Jarvis was not given a numerical rating.




                           -4-
    On December 18, 1992, Sundstrand announced an early
retirement program. Employees aged fifty-five and older
were given until February 8, 1993, to receive a $25,000
bonus and three years service credit upon their
departure. Jarvis, who was fifty-seven years old, chose
not to accept early retirement.

    On February 17, 1993, Haynes told Jarvis that the
Operations Planning Department was to be reduced by one
and that Jarvis had been chosen. Haynes asked Jarvis to
speak with Doris Johnson, manager of human resources.
Johnson told Jarvis that he had three options he could
choose: (1) voluntary layoff with severance; (2) the
early retirement program he had previously declined; or
(3) an unknown factory assignment at an unknown salary.
Johnson also told Jarvis that he had been chosen for
redeployment because of his low "4" review score.

    Sundstrand claims that Jarvis's redeployment was part
of a plant-wide redeployment plan scheduled for the end
of March 1993. Therefore, until the plant-wide plan was
finalized, Jarvis's new assignment was uncertain.
Sundstrand also claims that Jarvis was told of his
redeployment early so that he could take advantage of the
early retirement option. In any case, it was clear that
there was a position for Jarvis within the plant.

    From among his three choices, Jarvis eventually
elected to take early retirement. As of March 1, 1993,
Jarvis was no longer employed by Sundstrand.

    On September 24, 1993, Jarvis commenced this action
under the Age Discrimination in Employment Act (ADEA), 29

                           -5-
U.S.C. §§ 621-634 (1988 & Supp. IV 1992). Jarvis claimed
he had been constructively discharged on account of his
age and that Sundstrand's actions were willful, entitling
him to liquidated damages. On March 21, 1996, the jury
returned a verdict in Jarvis's favor. Sundstrand moved
for j.a.m.l. On June 21, 1996, the district court granted
Sundstrand's motion for j.a.m.l. only with respect to the
jury's finding of willfulness, but concluded that the
evidence was legally




                           -6-
sufficient for the jury to find that age motivated
Sundstrand's decision to redeploy Jarvis and that Jarvis
was constructively discharged.      Jarvis appeals and
Sundstrand cross-appeals.

                                          II.

    On appeal, Jarvis argues that the district court
erred by concluding that the evidence at trial was not
legally sufficient for a reasonable jury to find that
Sundstrand's conduct was willful.4 We disagree.

      4
         Jarvis also argues that the district court's partial grant of j.a.m.l. was
procedurally flawed. Jarvis asserts that Sundstrand's conclusory pre-verdict motions
failed to "specify the judgment sought and the law and the facts on which the moving
party is entitled to the judgment." Fed. R. Civ. P. 50(a)(2). Thus, Jarvis concludes that
Sundstrand's post-verdict j.a.m.l. motion was improperly granted on a ground not
preserved prior to the verdict. See Hurst v. Dezer/Reyes Corp., 82 F.3d 232, 237 (8th
Cir. 1996) (citing Diercks v. Durham, 959 F.2d 710, 714 (8th Cir. 1992); 5A James W.
Moore, Moore's Federal Practice ¶ 50.08 at 50-86 (2d ed. 1994)); Lambert v. Genesee
Hosp., 10 F.3d 46, 54 (2d Cir. 1993) (specificity requirement puts nonmovants on
notice of potential deficiencies in their proof). We disagree.

      Sundstrand's pre-verdict motion was as follows:

      Mr. Craven: At this time the Defendant would move for judgment as a
      matter of law on all the Plaintiff's claims on the grounds that plaintiff has
      not produced any evidence, certainly not any sufficient evidence, by
      which a reasonable jury could return a verdict in favor of Plaintiff. In
      fact, Plaintiff has shown no evidence beyond Plaintiff's own personal
      belief that age discrimination was a factor to support his claim that age
      played any part whatsoever in his termination.

Trial Tr. at 218, reprinted in Appellant's App. at 105.

      The district court did not abuse its discretion in finding that the j.a.m.l. grounds

                                          -7-
    The district court properly concluded that the
evidence at trial was legally insufficient for a
reasonable jury to find that Sundstrand's conduct was
willful.   In reviewing a judgment as a matter of law,
this Court uses the same standard as the district court:

      In a motion for [j.a.m.l.], the question is a legal
      one, whether there is sufficient evidence to
      support a jury verdict. This court must analyze
      the evidence in the light most favorable to the
      prevailing party and must not engage in a
      weighing or evaluation of the evidence or
      consider questions of credibility. We have also
      stated that to sustain a motion for [j.a.m.l.],
      all the evidence must point one way and be
      susceptible    of     no     reasonable   inference
      sustaining the position of the nonmoving party.

White v. Pence, 961 F.2d 776, 779                               (8th     Cir.     1992)
(footnote and citations omitted).

    Only a determination of willfulness allows for an
award of liquidated damages under the ADEA.       See 29
U.S.C. § 626(b) (1988 & Supp. IV 1992).       The Supreme
Court has defined "willful" in this context to mean "that
the employer either knew or showed reckless disregard for



were fairly raised in the pre-verdict motion. See Hurst, 82 F.2d at 237 (standard of
review). First, Jarvis does not make an adequate showing that he lacked fair notice of
the "willfulness" issue or did not have an opportunity to cure deficiencies in his proof.
See id. Second, a movant's grounds for the motion need not be stated with the technical
precision which Jarvis asserts. Cf. Cortez v. Life Ins. Co. of N. Am., 408 F.2d 500,
503 (8th Cir. 1969) ("Technical precision is not necessary in stating grounds for the
[j.a.m.l.] motion so long as the trial court is aware of the movant's position." (quotation
omitted)).

                                           -8-
the matter of whether its conduct was prohibited by the
statute." Hazen Paper Co. v. Biggins, 507 U.S. 604, 617
(1993) (reaffirming the standard adopted in Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 128-29 (1985));
see also Grover v. McDonnell Douglas Corp., 12 F.3d 845,
848-49 (8th Cir. 1994). However, "[l]iquidated damages
are not warranted merely because an employer knows that
the ADEA may be 'in the picture' when an older employee
is discharged."




                           -9-
Rademaker v.   Nebraska, 906 F.2d 1309, 1313 (8th Cir.
1990) (quoting Thurston, 469 U.S. at 127-28).

    Evidence was presented upon which a finding could be
made that Sundstrand knew that the ADEA may be "in the
picture" when it selected Jarvis for redeployment.
Jarvis testified that he "kind of jokingly--not jokingly"
told Sundstrand's manager of human resources, Johnson,
that Jarvis's redeployment sounded like discrimination.
Trial Tr. at 124-25. However, this knowledge that the
ADEA was "in the picture" does not warrant an award of
liquidated damages.    See Rademaker, 906 F.2d at 1313;
Grover, 12 F.3d at 849. Only a showing that Sundstrand
either knew or showed reckless disregard for the matter
of whether its conduct was prohibited by the ADEA can
warrant such an award. See Hazen, 507 U.S. at 616-17.

    Evidence was also presented upon which the jury could
have based a finding that Sundstrand willfully considered
Jarvis's age in its treatment of Jarvis. See Trial Tr.
at 195, 204 (reading to the jury Haynes's deposition
testimony which acknowledged that Jarvis's age entered
into Haynes's decision), reprinted in Appellant's App. at
82, 91. However, although that willful act violated the
ADEA, that is not the same as a willful violation of the
statute.   "[I]n order that the liquidated damages be
based on evidence that does not simply duplicate that
needed for the compensatory damages, there must be some
additional   evidence    of   the   employer's   reckless
disregard." Williams v. Valentec Kisco, Inc., 964 F.2d
723, 729 (8th Cir. 1992) (quotations and citations
omitted); cf. Grover, 12 F.3d at 849 ("A violation of the
ADEA does not require any particular mental state, but

                           -10-
the award of liquidated damages under the ADEA does.").
No additional evidence was presented, beyond that
required to prove the underlying discrimination, upon
which a finding of wilfulness could be based.

    After reviewing the trial record, we conclude that
evidence was not submitted to the jury that Sundstrand
knew or recklessly disregarded the possibility that its
actions toward Jarvis would violate the ADEA.




                          -11-
                          III.

    In its cross-appeal, Sundstrand argues that the
district court erred by concluding that the evidence at
trial was legally sufficient for a reasonable jury to
find that age was the motivating factor in Sundstrand's
decision to redeploy Jarvis and that Jarvis was
constructively discharged. We disagree.

    The district court properly concluded that sufficient
evidence supports the jury's finding that age was the
motivating factor in Sundstrand's decision to redeploy
Jarvis and that Jarvis was constructively discharged. As
discussed above, the standard for granting a motion for
j.a.m.l. is high. Here, although Jarvis may not have the
strongest case of age discrimination, it cannot be said
that all the evidence points in Sundstrand's favor and is
susceptible of no reasonable inference sustaining
Jarvis's position. See White, 961 F.2d at 779 (standard
of review).

    The evidence on which reasonable jurors could have
relied to conclude that age was the motivating factor in
the decision to redeploy Jarvis and that Jarvis was
constructively   discharged    includes:   (1)   Haynes's
deposition testimony in which he acknowledged that
Jarvis's age entered into Haynes's decision, Trial Tr. at
195, 204, reprinted in Appellant's App. at 82, 91; (2)
inferences from the timing of events, particularly the
offer of early retirement and Jarvis's selection for
redeployment; (3) inferences from the fact that
Sundstrand could not tell Jarvis what position in the
factory he was being redeployed to or what pay rate he

                           -12-
would receive; and (4) inferences from the parallels in
treatment between Jarvis and Ed Stout, another Sundstrand
employee who declined early retirement, was chosen for
uncertain redeployment, and then chose to accept early
retirement.

    Of this evidence, the most direct evidence on which
a reasonable jury could have chosen to rely was Haynes's
deposition testimony. The jury was read the following
excerpt:




                           -13-
        "Question: So have we covered all of the
    reasons then why Mr. Jarvis was chosen to be the
    one to let go from operations planning?

         "Answer: As far as I'm concerned.

        . . . "He being the oldest one in the
    operations planning department, did that enter
    into your decision?

         "Correct.

        "He being the only one eligible for early
    retirement didn't enter into your decision?

         "That's correct."

Trial Tr. at 203-05, reprinted in Appellant's App. at 90-
91.    At trial, Haynes explained that his apparent
admission was a typographical error.         Id. at 195,
reprinted in Appellant's App. at 82.      Considering the
context of the statement, Haynes's explanation is
plausible.

    However, in analyzing the evidence, this Court must
not consider questions of credibility or engage in
weighing or evaluating the evidence. See White, 961 F.2d
at 779.    The fact remains that Haynes's deposition
testimony constitutes evidence for a reasonable jury to
find that Sundstrand was motivated by Jarvis's age.
This, together with the reasonable inferences that could
be drawn from other evidence, allowed the district court
to conclude properly that the evidence at trial was
legally sufficient for a jury to find that age was the
motivating factor in Sundstrand's decision to redeploy Jarvis
and that Jarvis was constructively discharged.

                             -14-
                         IV.

    Accordingly, the judgment of the district court is
affirmed.




                         -15-
A true copy.


    Attest:


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




                      -16-
