Petition for Writ of Certiorari — Motel 6 Operating L. P. v. Huttinger

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99 937 DEC 1-199

PEPE Settle Hilo lhe

No. 99-

IN THE

Supreme Court of the United States

MOTEL 6 OPERATING L.P. and

ACCOR ECONOMY LODGING, INC.,

Petitioners,

ART HUTTINGER and DONNA HUTTINGER,

Respondents.

MOTEL 6 OPERATING L.P. and

ACCOR ECONOMY LODGING, INC.,

Petitioners,

JAMES FENNERN and DELORES FENNERN,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL F. Marino

Counsel of Record

FREDERIC FREILICHER

HUNTON & WILLIAMS

Attorneys for Petitioners

Suite 1700

1751 Pinnacle Drive

McLean, Virginia 22102

(703) 714-7400

156435 @J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Whether in these two Age Discrimination In

Employment Act cases the Ninth Circuit was correct in

reversing the trial court’s granting of judgment as a matter

of law under Rule 50, Fed. R. Civ. P., and a new trial under

Rule 59, Fed. R. Civ. P., where the plaintiffs’ evidence on

pretext was weak and no direct evidence was presented that

Motel 6 was motivated to discriminate against plaintiffs

because of their age.

2. Whether under 28 U.S.C. § 1292(b) the Ninth Circuit

had jurisdiction to decide the Fennerns’ interlocutory appeal

where the district court had refused to find that any of the

Fennerns’ issues for appeal involved a controlling question

of law upon which there was substantial ground for difference

of opinion.

3. Whether the Ninth Circuit was correct in reversing

the district court’s holding that the Fennern and Huttinger

cases should not have been consolidated for trial where the

Ninth Circuit did not find that the district court had abused

its discretion, but simply disagreed with district court’s

record-based reasons for finding that the consolidation had

seriously prejudiced Motel 6.

CORPORATE DISCLOSURE STATEMENT

REQUIRED BY RULE 29.6

The name of Motel 6 G.P., Inc. has been changed to

Accor Economy Lodging, Inc. The parent corporation of

Accor Economy Lodging, Inc. and Motel 6 Operating L.P.

is Accor S.A.

iil

TABLE OF CONTENTS

Page

RU IEE cc ece cases vesussocsue i

Corporate Disclosure Statement Required by Rule

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Fabre OF Cited AWINOFtICS .... 6... cc cc eens vi

UE IO cg nc kis an cewressceaweanns Xx

Opinions — AN Ea rok Gow i x whee Hos 4 1

emeernent OF SUTISGICHON ... 2... cece sceses ]

Statutory Provisions Involved ................. ]

I OE OU og ons wih ae oe Wk btn eis tnan'ss 2

esa e ys ko ae ase oe ee ke ae 2

ie, PPUOUOUINNS TIOTOW ok cc cece cece cess 3

C. Facts And District Court Findings. ....... 5

Dice MI oa wie ede wes cade 5

ee eee 9

D. The Court Of Appeals Decision .......... 12

Contents

Reasons for Granting the Writ .................

II.

This Court Recently Granted Review Of A

Decision From The Fifth Circuit Presenting

The Same Question As In This Case —

Whether A Plaintiff Alleging Age

Discrimination Can Survive JAML (Or A

New Trial Motion) Where The Plaintiff's

Pretext Evidence Is Weak And There Is No

Direct Evidence That The Defendant Was

Motivated To Discriminate Against The

Plaintiff Because Of Age. ...............

The Circuit Court Improperly Granted The

Fennerns’ 28 U.S.C. § 1292(b) Petition In

The Absence Of A District Court Finding

That The Case Presented A Controlling

Question Of Law As To Which There Was A

Substantial Ground For Difference Of

RE a Peer Sener y rani ore

A. The District Court’s Order of

NS oe uae re ck

B. The Court of Appeals’ Decision. .....

C. The Court of Appeals Did Not Have

Jurisdiction to Hear the Fennerns’

FE dive sonnc cr ees ea ene

Contents

Page

D. The Court’s Findings On Judicial

Economy and Party Fairness In Any

Event Do Not Satisfy The Stringent

Requirements Under Section 1292(b).

(ud 1 RRS Mee ORAETER SES TREAT ES 21

III. The Court Of Appeals Failed Properly To

Apply An Abuse Of Discretion Standard To

The District Court’s Finding That The Cases

Were Improperly Consolidated. .......... 23

Co c's ova a 60 KE 26

TABLE OF CITED AUTHORITIES

Page

Cases:

Anderson v. Baxter Health Care Corp., 13 F.3d 1120

tek ee MPFR Er Sry pe en ES 15

Anderson v. Bessemer City, 470 U.S. 564(1985).. 24

Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995)

oa 0000's 4k £85k OE Ae ae eee 15

Billings v. Methodist Hospital of Chicago, 922 F.2d

eS Ot RR beer PARE RR 16

Blue v. Widnall, 162 F.3d 541 (9" Cir. 1998) ..... 16

Bullock v. Baptist Memorial Hospital, 917 F.2d 58

(OP Ge: Were. +s vehsdcsacee ee eee 18, 20, 21

Chesapeake & Ohio Ry Co. v. Martin, 283 U.S. 209

CRGRED svn csves esa 0eaeereee eee 16

Combs v. Plantation Patterns, 106 F.3d 1519 (11"

CW. POPS. i ceas cee beeen ee eee ee 15

Coopers & Lybrand v. Livesay, 437 U.S. 463

(RITE) v0.5 e005 4060 tee ee eee 22

Fisons, Ltd. v. United States, 458 F.2d 1241 (7th

al. FSS 5s an b edbueeeaee eee 22

vil

Cited Authorities

Page

Gallo v. Prudential Residential Services, 22 F.3d

EEE Ge Gk SE ced ve cdvvdkoentdesdlan 15

In re Cement Antitrust Litigation, 673 F.2d 1020 (9*

ed SE oe oe bie es bd dw accud Ch ed Kanna 20, 22

Irvin v. Airco Carlode, 837 F.2d 724 (6" Cir. 1987)

EE PE Oe er PONE a re one Need Ea 5 TP 16

Katz v. Carte Blanche Corp., 496 F.2d 744 (3d Cir.

DUE aerate wucded cbs paul wowed betes 21

Lerner v. Atlantic Richfield Co., 690 F.2d 203

(Temp. Emer. Ct. of App. 1982) ............. 18, 21

Massey v. Gulf Oil Corp., 508 F.2d 92 (5" Cir.

og OES Pe eer eae an CMe nee oer Suen | 22

Nebel v. Avichal Enterprises, Inc., 125 F.R.D. 415

GUN IE aii oie dab ee dh vedic laa cece ke 22

Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333

EG oss UA ae ak a cee Ue Coca betas 16

Reeves v. Sanderson Plumbing Products, Inc., No.

99-536 (filed Sept. 15, 1997) ............. 14, 16, 17

Reeves v. Sanderson Plumbing Products, Inc., No.

98-60334 (S" Cir. decided April 22, 1999) ..... 14,15

vill

Cited Authorities

Page

Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d

ek ke | errr ey Per re pre 15

Shows v. Jamison Bedding, Inc., 671 F.2d 927 (5"

pls SE go o'es Baka bees eacad scence 22

Steele v. Wiedmann Machine Company, 280 F.2d 380

re i dice Sse dhe ee a 23

Theard v. Glaxo, Inc., 47 F. 3d 676 (4" Cir. 1995)

OTE PE Pee ey Oe Pe OP ET ee Cee 15

Union Oil Co. of California v. John Brown E&C,

523 F256 SOS Fm Ce OOP aks ck ek ees 18, 20

Washington v. Garrett, 10 F.3d 1421 (9" Cir.

SE ee CET ees a em emer ag er ree: 15

Woods v. Friction Materials, Inc., 30 F.3d 255 (1*

| PP rer re rrr TT ere re 15

Statutes:

Ae Wns OF PEE: hk C450 Kod SRR Da aa ]

28 U.S.C. § 1292(b) ....... i, 1, 4, 5, 18, 20, 21, 22, 23

SP ULB, Be io be hsicd bees bina eenewns ]

Pe ULSR GENS Gaskets eee |

Idaho Human Rights Act Section 67-5909 ....... 2

Cited Authorities

Page

Rules:

Se ee a areas oe eae oN Oe oR aal oes 1

Fe Be Wc kaso a ipa wie ecw Ao vide ke wk 4

oe En Ne Be pera gn ee emer an OA ae i

TABLE OF APPENDICES

Appendix A — Order Of The United States Court

Of Appeals For The Ninth Circuit Dated And Filed

re eee re eee ee ert ee

Appendix B — Order Of The United States Court

Of Appeals For The Ninth Circuit Dated And Filed

PUG TG Se 6 eC 8dS ee bw deb ake eeewatans

Appendix C — Order Of Certification Of The United

States District Court For The District Of Idaho

Dated And Filed May 13, 1998 ..............

Appendix D — Memorandum Decision And Order

Of The United States District Court For The

District Of Idaho Dated And Filed January 20,

i, ee ae re Serre tomer ear

Appendix E — Order Of The United States Court

Of Appeals For The Ninth Circuit Denying

Petition For Rehearing Dated And Filed

I A SO os Seeks caw cee ases eedexs

Page

l6a

27a

]

Motel 6 Operating L.P. and Accor Economy Lodging,

Inc. (“Motel 6’) respectfully petition for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Ninth Circuit.in this case.

OPINIONS BELOW

The opinions of the court of appeals (App. A, infra,

la-14a; 15a; 67a-68a) are unreported. The opinions of the

district court. (Jd. at 27a-66a; 16a-26a) are also unreported.

STATEMENT OF JURISDICTION

The court of appeals’ orders sought to be reviewed were

entered on July 6, 1999 and on June 10, 1998. (App., infra,

la-14a). The court of appeals’ order denying Motel 6’s

petition for rehearing and suggestion for rehearing en banc

was entered on September 2, 1999. (App., infra, 67a-68a).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 623(a) of the Age Discrimination in Employment

Act, 29 U.S.C. § 623(a)(1) (“ADEA”) provides, in relevant

part, that: “It shall be unlawful for an employer — (1). ... to

discharge any individual or otherwise discriminate against

any individual . . . because of such individual’s age... .”

28 U.S.C. § 1292(b) provides that:

When a district judge, in making in a civil action

an order not otherwise appealable under this

section, shall be of the opinion that such order

involves a controlling question of law as to which

there is substantial ground for difference of

opinion and that an immediate appeal from the

order may materially advance the ultimate

termination of the litigation, he shall so state in

writing in such order. The Court of Appeals which

would have jurisdiction of an appeal of such

action may thereupon, in its discretion, permit an

appeal to be taken from such order, if application

is made to it within ten days after entry of the

order: Provided, however, that application for an

appeal hereunder shall not stay proceedings in the

district court unless the district court judge or the

Court of Appeals or a judge thereof shall so order.

Section 67-5909 of the Idaho Human Rights Act provides in

pertinent part:

... It shall be a prohibited act to discriminate

against a person... in any of the following and

on the basis of age . . . in subsection (1)

(1) For ‘an employer ... to discharge

... an individual... .

STATEMENT OF THE CASE

A. Background.

Motel 6, which 1s based in Dallas, Texas, owns and

operates more than 750 budget motels throughout the United

States. At the time these cases were brought, the majority of

Motel 6’s motels were run by a manager and assistant

manager, most often a wife and husband team. The manager

had the principal responsibility for the motel. (App., infra,

29a, 62a; Pl. Ex. 29). An area manager, who usually had

oversight responsibility for 15-20 motels, was the

motel manager’s immediate supervisor. Tr. 952-53, 1731.

A regional vice president supervised a group of area

managers in a particular geographic area. /d. at 1729.

For several years until their discharge on June 2, 1993,

Donna Huttinger, age 55, managed the Motel 6 motel in

Pocatello, Idaho, where her husband, Art Huttinger, age 68,

was the assistant manager. (App., infra, 29a, 31a). The

Huttingers were replaced by a manager who was 43 and an

assistant manager who was 45. /d. at 31a.

For about six months until their discharge on January

18, 1994, Delores Fennern, age 58, managed the Motel 6

motel in Idaho Falls, Idaho, where her husband, James

Fennern, age 60, was the assistant manager. (App., infra,

29a, 31a). The Fennerns were replaced by a manager who ~

was 49 and an assistant manager who was 35. /d. at 31a.

The Huttingers’ and Fennerns’ area manager was Doug

Massman, age 60. Tr. 941. Scott Griffith was the Motel 6

regional vice president with supervisory authority over the

Fennerns’ and Huttingers’ motels. /d. at 1729.

B. Proceedings Below.

The Fennerns and Huttingers brought separate actions

in federal district court in Pocatello, Idaho against Motel 6

alleging that they were discharged because of their age. The

Fennerns alleged that Motel 6 had violated the ADEA and

the Idaho Human Rights Act (“IHRA”). The Huttingers

brought their case under the IHRA.' On February 18, 1997,

the district court (Winmill, J.) consolidated the two cases

for trial. (App., infra, 29a-30a).

After a 10-day trial, the jury returned a verdict in favor

of the Huttingers, awarding them front and back pay and

punitive damages under the IHRA. The jury also returned a

verdict in favor of the Fennerns, awarding them front and

back pay and liquidated damages under the ADEA.

Thereafter, Motel 6 moved in both cases for judgment as a

matter of law (JAML) or, in the alternative, for a new trial.

(App., infra, 30a).

On January 20, 1998, the district court granted

Motel 6’s JAML motion in the Huttinger case and

conditionally granted Motel 6’s new trial motion in that case

if the district court’s JAML holding did not survive appeal

(App. infra, 65a). In the Fennern case, the district court

granted Motel 6’s new trial motion on the basic ADEA

violation. /d. In that case, the district court also granted Motel

6’s JAML motion on the issue of whether Motel 6 had

committed a willful violation of the ADEA, and conditionally

granted Motel 6 a new trial on that issue in the event that its

JAML holding did not survive appeal. /d.

The Fennerns petitioned the district court pursuant

to 28 U.S.C. § 1292(b) to certify their case for an

interlocutory appeal. (App., infra, 20a). The Huttingers

moved for certification of their case pursuant to Rule 54(b),

Fed. R. Civ. P. /d. at 18a. Motel 6 opposed the Fennerns’

1. The Huttingers and Fennerns had other claims that did not

survive summary judgment. (App., infra, 29a-30a).

petition but not the Huttingers’. Jd. On May 13, 1998, the

district court granted the Fennerns’ petition and the

Huttingers’ motion. /d. at 26a. The Fennerns thereupon

petitioned the court of appeals pursuant to 28 U.S.C.

§ 1292(b) to hear their interlocutory appeal. /d. at 15a. Motel

6 opposed the Fennerns’ petition. On June 10, 1998, the court

of appeals granted the Fennerns permission to appeal their

case. /d.

On July 6, 1999, in an unpublished order, the court of

appeals (Judges B. Fletcher, Reinhardt, and Thomas)

reversed the district court in both cases and reinstated the

jury verdicts (App., infra, 1a-14a). Motel 6’s petition for

rehearing and suggestion for rehearing en banc was denied

on September 2, 1999. /d. at 67a-68a.

C. Facts And District Court Findings.

1. The Huttingers.

The Huttingers were discharged for: (1) discrimination

against Native Americans; (2) violations of Motel 6’s safety

and security policy; and (3) widespread employee

complaints. (App., infra, 34a).

While the Huttingers were on vacation, the relief

manager at the motel the Huttingers managed, Aileen

Malone, contacted area manager Massman concerning

Malone’s discovery that the Huttingers were discriminating

against Native Americans. (App., infra, 46a, 48a). Massman

initially discussed the matter with regional vice president

Griffith. Tr. 1079. Griffith directed Massman to go

immediately to the Huttingers’ motel and conduct an

investigation. Jd. Massman proceeded to interview

employees who had been required by the Huttingers to carry

out the Huttingers’ discriminatory policies against Native

Americans. /d. at 1080-82. Massman then reported back to

Griffith that his investigation revealed the Huttingers were

in fact discriminating against Native Americans. /d. at 1085-

88. At that point, Griffith and Massman decided to discharge

the Huttingers. /d. After their return from vacation, Massman

met with the Huttingers and, during a face-to-face meeting,

informed them of their discharge. /d. at 1091-92.?

The district court found that the Huttingers did not rebut

record evidence that their memoranda for desk clerks that

discriminated against Native Americans was still in effect

three years after their previous area manager, Bob Williams,

instructed them to cease using it. (App., infra, 47a-50a). The

memoranda instructed desk clerks to check the identification

of prospective Native American guests more closely than

that of other prospective guests. Jd. at 47a. One memorandum

referred to “people who are indians [sic] or look

questionable.” /d. The district court observed that relief

manager Malone testified that: (1) she discovered copies of

a discriminatory memorandum in the desk clerk training file

and forwarded it to Area Manager Massman; and (2)

additional copies were located in desk clerk Jenson’s

personnel file. Jd. at 48a. The fact that Jenson’s name

appeared on the second page of this memorandum provided

“compeHing evidence” that the memorandum was still being

used to discriminate since Jenson had started work in 1993,

only one month before the Huttingers were discharged. /d.

The district court noted that Jenson testified that Donna

Huttinger had required Jenson to sign the memorandum and

2. The Huttingers actively attempted to persuade Massman to

change his mind. Ex. 75.

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ei pasha dae aia ee

had guided Jenson’s hand while she did so. /d. at 49a. The

memorandum introduced into evidence bore the notation

“Teresa Jensen TJ.” Jd. at 48a. The district court observed

that Donna Huttinger had testified that this notation was in

her own handwriting. (App., infra, 49a). The district court

also noted that Malone’ and Jenson had both given unrebutted

testimony that desk clerks at the Pocatello Motel 6

were required to obtain the approval of the manager before

renting a room to a Native American, and that Jenson had

been reprimanded by Donna Huttinger for failing to do so.

Id. at 49a. The district court observed that Malone and Jensen

were not employed by Motel 6 at the time of the trial and

were thus disinterested witnesses.‘ Jd. at 47a fn. 14.

The district court found that at trial the Huttingers

admitted that they had authored the discriminatory

memoranda, but Donna Huttinger denied that the

memorandum specifically referring to “indians” was in use

after 1990, although she admitted that it was retained in her

files. (App., infra, 47a-48a). Ms. Huttinger did not explain

how Jensen’s signature came to be on the memorandum and

did not rebut Malone’s and Jensen’s testimony concerning

the current application of the discriminatory policy against

Native Americans, although she and Art Huttinger had the

opportunity to do so on rebuttal. /d. at 49a.

3. In parts of the discussion of the Huttingers’ discrimination,

the district court inadvertently substituted “Geiger,” the relief

manager at the Fennerns’ motel, for “Malone.” (App., infra, 48a-

49a).

4. At the time of the trial, Malone was employed as a school

bus driver. Tr. 1354-55. Neither she nor her husband was empioyed

by Motel 6. /d. Jensen also had no connection with Motel 6 at the

time of the trial. Tr. 1557.

The district court concluded that no reasonable jury could

have found that: 1) the Huttingers’ discrimination policy had

been abandoned in 1990; 2) Motel 6 did not consider such

discrimination serious enough to warrant discharge; 3) Motel

6 did not discharge the Huttingers in part for this reason.

(App., infra, 49a-50a). Thus, the district court emphasized

that the Huttingers’ policies with respect to Native American

guests were “flagrant violations of the law and of Motel 6

policy.” /d. at 50a.

The district court also observed that Donna Huttinger

admitted to several security violations and Art Huttinger

acknowledged that Regional Vice President Griffith had

warned him four months before his discharge about

Huttinger’s failure to utilize “blue tags,” a violation of the

‘key control” and safety policy. (App., infra, 50a-51a).°

The district court noted that Aileen Malone had testified

that, shortly after the Malones began working as relief

managers, while the Huttingers were on vacation, several

Motel 6 employees submitted oral and written complaints

about the Huttingers that Malone passed on to Massman

before Massman recommended that the Huttingers be

discharged. (App., infra, 52a). Judge Winmill observed that

Art Huttinger did not dispute that he had ordered Motel 6

employees to work on the Huttinger’s personal motor home.

/d. Donna Huttinger admitted that this was a Motel 6 policy

violation. /d. The district court also observed that a former

area manager and Huttinger witness, Joe Demarest, testified

5. The court of appeals found that Massman “never divulged”

to the Huttingers the room key violations he found on his first

inspection (App., infra, 4a). In fact, Art Huttinger admitted at trial

that Massman had discussed the blue tag violation with him during

Massman’s first inspection. Tr. 810-11.

that this violation constituted grounds for discharge. Jd.

The Huttingers did not introduce any direct evidence

that they were discriminated against on the basis of age.

(App., infra, 36a).

The district court concluded that each of Motel 6’s

proffered reasons for discharging the Huttingers had an

independent basis in fact and none was so far-fetched as to

give the impression of being manufactured to hide

“an unspoken motive.” (App., infra, 54a)° Accordingly, the

district court concluded that Motel 6 was entitled to JAML.

Id. at p. 54a. The district court found that if its JAML finding

did not survive appeal, the court would conditionally grant

a new trial in the Huttinger case. Id. at 57a-58a.

2. The Fennerns.

The Fennerns took over management of the Idaho

Falls motel about six months before their discharge.

(App., infra, 40a). At the time the Fennerns assumed

responsibility for the motel, it was filthy, and the Fennerns

were asked to bring it up to Motel 6 cleanliness standards.

Id. Six months later, as part of their regular inspection

program, Massman and Griffith inspected the Fennerns’

motel while the Fennerns were on vacation. Tr. 1135.

The motel failed that inspection, mainly because the motel

was insufficiently clean to meet Motel 6 standards.

6. The district court observed that the jury could not have

reasonably disbelieved Motel 6’s proffered reasons based on the

similarities in the two cases (e.g., proximity of the discharges to the

plaintiffs’ vacations) because of the seriousness of the violations of

Motel 6 policy and the fact that at about the time Massman and

Griffith discharged the Huttingers, they granted the Fennerns a

transfer to a more manageable motel. (App., infra, 53a fn. 17).

(App., infra, 39a). Twelve days later, after the Fennerns

returned from vacation, Massman held a face-to-face meeting

with them where he informed them they were discharged.

Tr. 180, 413.

The Fennerns were discharged for: (1) failing a motel

inspection; (2) improperly checking references before hiring

a desk clerk; and (3) leaving for vacation with Room 114 at

their motel “down” (unrentable). (App., infra, 39a). The

district court observed that there was no dispute that the

Fennerns failed to meet Motel 6’s cleanliness standards, and

that Massman and Griffith had a reasonable basis for

concluding that six months was adequate to meet those

standards, especially with the Fennerns’ more than 10 years

of management experience. /d. at 58a-59a. The district court

found that at the “leisurely rate of one room per day, the

Fennerns could have completed the task within three

months.” /d. at 60a.

The district court also found that Motel 6 presented

“convincing testimony to rebut” the Fennerns’ pretext

evidence (App., infra, 59a): A purchase requisition showed

that the Fennerns received more supplies than they admitted.

Delores Fennern admitted having a carpet shampooer with

which she could have cleaned four rooms per day, and that

using that shampooer, “the 80-room motel could have been

cleaned within a month.” /d. Finally, Loree Shearouse, who

succeeded Delores Fennern as manager, thoroughly cleaned

the motel in six months, despite her lack of experience.

Id, at 28. Thus, the court concluded that the jury was mistaken

in disbelieving that Motel 6 discharged the Fennerns in part

for failing the motel inspection. /d. at 60a.’

7. The only direct evidence introduced by the Fennerns that

Motel 6 intended to discriminate against them because of their age

(Cont'd)

The district court observed that even if the Fennerns’

evidence of pretext had been more compelling, the jury made

a mistake in inferring the ultimate fact of age discrimination.

(App., infra, 62a). The district court found that any inference

of age discrimination is “quite weak” when a 58-year old

manager (Delores Fennern) is replaced by a 49-year old

manager (Loree Shearouse). /d. The district court noted that,

as manager, Delores Fennern bore the primary responsibility

for the perceived performance deficiencies as the highly-

compensated half of the management team. /d.* In these

circumstances, the district court found, the evidence of

pretext must be much stronger. Jd. Accordingly, the district

court concluded that the Fennerns did not prove that age

discrimination was the real reason for their discharge and

that Motel 6 was entitled to a new trial. /d.

The district court also found that Motel 6 was “severely

prejudiced” by the consolidation of the Fennern and

Huttinger cases for trial for two reasons. (App., infra, 63a).

First, Plaintiffs had represented to the court they would put

in evidence of a pattern and practice of age discrimination.

/d. On that basis, the district court permitted consolidation.

(Cont'd)

were comments made on two occasions by Massman that he could

replace the Fennerns with college students at a lower wage.

(App., infra, 36a). The district court observed that Jim Fennern

admitted the statements were made at least six months before the

Fennerns were discharged. /d. The district court concluded that these

“passing remarks” were insufficient direct evidence of Motel 6’s

intent to discriminate. /d.

8. Documentary evidence in the record shows that the manager

was solely responsible for running the motel; the assistant manager

was little more than a desk clerk. Pl. Ex. 29. See App., infra, 56a

fn. 20.

Id. Later, just before trial, Plaintiffs announced that they did

not intend to introduce pattern and practice evidence.

(App., infra, 30a). In their closing argument to the jury,

however, the Plaintiffs contended that the two cases

presented the same pattern of Motel 6 conduct. Tr. 2071. On

Motel 6’s new trial motion, Judge Winmill held that, without

this pattern and practice evidence, the cases were

“insufficiently similar to justify joinder.” (App., infra, 63a).

Noting the “substantial differences” in the reasons for the

discharges of the two couples, the district court found

that the similarities between the cases “pale by

comparison... .” /d.

Secondly, upon learning that the Plaintiffs abandoned

their pattern and practice case, the district court refused to

permit Motel 6 to introduce statistical evidence on its hiring

and discharge patterns to demonstrate there was no statistical

support for any practice of age discrimination. (App., infra,

64a). The district court found that this ruling led to the

“unforeseen” result that plaintiffs argued a pattern to the jury

based on their two cases that Motel 6 could not rebut with

statistics. /d. The district court concluded that: “Motel 6 was

clearly prejudiced by this unintended.result.” /d.

D. The Court Of Appeals Decision

The court of appeals reversed the district court in both

cases (App., infra, 13a-14a). With respect to the Huttingers,

the court of appeals relied on plaintiffs’ contentions that:

(1) area manager Massman, who terminated the Huttingers,

held the area manager position for one month before he

discharged the Huttingers; (2) Massman conducted

“surreptitious” inspections; (3) Massman never reviewed the

Huttingers’ personnel files; and 4) Massman never inquired

about the Huttingers’ alleged discriminatory policies before

terminating them (App., infra, 9a). Without explanation or

elaboration, the court concluded that a conditional new trial

should not have been granted because the jury’s verdict was

not against the clear weight of the evidence. /d. at 10a.

The court of appeals found that the district court had

erred also in comparing only the relative ages of the property

managers to find a weak inference of age discrimination.

(App., infra, 11a). The court noted that manager and assistant

manager were hired as teams, not individuals. /d.

The court of appeals summarily rejected the

district court’s findings with respect to the Fennerns.

(App., infra, 11a). The court observed that Motel 6 had

hindered the Fennerns’ ability to clean their motel after they

took over and that the relief managers were responsible for

motel cleanliness in the Fennerns’ absence. /d. The court

concluded that the Fennerns were discharged because of their

age. Id.

The court of appeals also concluded that the district court

had erred in granting a new trial on the basis that the cases

should not have been consolidated. (App., infra, 11a). The

panel gave three reasons for its conclusion: (1) each case

involved “similar allegations” against the motel managers;

(2) the cases had the same “pattern of furtive inspections”;

and (3) the inspections were followed by “instant

terminations” in both cases. /d.

Motel 6’s petition for rehearing and suggestion for

rehearing en banc was summarily denied. (App., infra,

67a-68a).

REASONS FOR GRANTING THE WRIT

I. THIS COURT RECENTLY GRANTED REVIEW

OF A DECISION FROM THE FIFTH CIRCUIT

PRESENTING THE SAME QUESTION AS IN

THIS CASE — WHETHER A PLAINTIFF

ALLEGING AGE DISCRIMINATION CAN

SURVIVE JAML (OR A NEW TRIAL MOTION)

WHERE THE PLAINTIFF’S PRETEXT

EVIDENCE IS WEAK AND THERE IS NO

DIRECT EVIDENCE THAT THE DEFENDANT

WAS MOTIVATED TO DISCRIMINATE

AGAINST THE PLAINTIFF BECAUSE OF AGE.

On November 8, 1999, this Court granted review in

No. 99-536 of an unpublished decision from the Fifth Circuit

in Reeves v. Sanderson Plumbing Products, Inc., No. 98-

60334 (5" Cir., decided April 22, 1999). In that ADEA case,

the Fifth Circuit found that the district court erred in not

granting JAML for defendant Sanderson where Sanderson

had discharged Reeves allegedly for timekeeping errors.

Petition for ertiorari in Reeves v. Sanderson Plumbing

Products, Inc., No. 99-536 (filed Sept. 15, 1997 at Appendix

A, p. 3a). There was evidence in that case that one of

Sanderson’s three decisionmakers had remarked to Reeves

several months before his discharge that Reeves was so old

he “must have come over on the Mayflower” and that Reeves

was “too damn old to do the job.” Jd. at 6a. The Fifth Circuit

held, however, that because Reeves failed to offer evidence

sufficient to prove that Sanderson’s reason for discharging

him was untrue and that age is what really triggered Reeves’

discharge, Sanderson was entitled to JAML. /d. at 7a. The

principal question upon which this Court granted Reeves’

petition for certiorari was:

Under the Age Discrimination in Employment

Act, Is Direct Evidence of Discriminatory Intent

Required to Avoid Judgment as a Matter of Law

for the Employer? —

On this question, the petition for certiorari observed that the

circuit courts were split. Petition for Certiorari in Reeves v.

Sanderson Plumbing Products, Inc., supra, at pp. 4-6.

Compare Woods v. Friction Materials, Inc., 30 F.3d 255,

360 (1* Cir. 1994) and Theard v. Glaxo, Inc., 47 F. 3d 676,

680 (4" Cir. 1995) with Gallo v. Prudential Residential

Services, 22 F.3d 1219, 1224-25 (2 Cir. 1994); Sheridan v.

E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1069

(3d Cir. 1994); Anderson v. Baxter Health Care Corp., 13

F.3d 1120, 1122-23 (7" Cir. 1994); Washington v. Garrett,

10 F.3d 1421, 1433 (9" Cir. 1994); Combs v. Plantation

Patterns, 106 F.3d 1519, 1529 (11" Cir. 1997); Barbour vy.

Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995). -

In the instant case, the Ninth Circuit reversed the district

court’s ruling granting JAML (and a conditional new trial)

in Huttinger, and a new trial in Fennern, despite that the

evidence in the record showed that Motel 6’s reasons for

discharging the Huttingers and Fennerns were not pretextual

and in the absence of direct evidence that Motel 6 was

motivated to discharge the Huttingers and Fennerns because

of their age.

The Reeves case and this case thus present the same issue

of the nature of the evidence an ADEA plaintiff must

introduce to avoid JAML. Accordingly, the Court should

decide this case together with the Reeves case or, at

minimum, hold this case pending its decision in the Reeves

case.

The court of appeals rejected the district court’s findings

in the Huttinger case in part on the basis that Malone and

Jenson were not disinterested witnesses because Malone took

over the Huttingers’ managerial role after they were

terminated, and because Jenson was a disgruntled employee

(App., infra, 9a). In fact, the Malones and Jenson had left

Motel 6 long before the trial. Tr. 1354-55; 1557. And the

mere fact that a defense witness once worked for the

defendant cannot alone be a basis for discrediting that

witness. See Chesapeake & Ohio Ry Co. v. Martin, 283 U.S.

209, 216 (1931); Pennsylvania R. Co. v. Chamberlain, 288

U.S. 333, 343 (1933). That a witness may not like a plaintiff

because of bad things the plaintiff did to her is certainly not

a basis for a court of appeals to ignore the witness’ testimony.

Significantly, the court of appeals did not address the

Huttingers’ failure to explain away the Huttingers’

discriminatory policy memorandum that contained Jenson’s

handwritten name, corroborating Malone’s and Jenson’s

testimony that Huttingers continued to discriminate against

Native Americans until the Huttingers left for their vacation.

Their general denial that their discriminatory policy was still

in effect was insufficient to overcome this specific evidence

of discrimination. See Billings v. Methodist Hospital of

Chicago, 922 F.2d 1300, 1303 (7" Cir. 1991); Irvin v. Airco

Carlode, 837 F.2d 724, 726 (6" Cir. 1987); Blue v. Widnall,

162 F.3d 541, 546 (9" Cir. 1998).

The court of appeals also re ied on the fact that Massman

had held his position for less than a month before he

terminated the Huttingers and “never inquired about the

Huttingers’ alleged discriminatory policies before

terminating them. .. .” (App., infra, 9a). In fact, the decision

to terminate the Huttingers was made by Griffith, an

experienced executive, and Massman together. Tr. 920-21,

1079-1080. All the record evidence shows that before

discharging the Huttingers, Massman obtained their

discriminatory policy memoranda and interviewed

employees at the motel, at Griffith’s direction. Tr. 1079-82,

1091-92.

The court of appeals acknowledged that Motel 6 may

have had valid reasons to discharge the Fennerns for not

keeping their motel clean (App., infra, 10a). The court of

appeals reversed the district court’s new trial holding because

there was “ample evidence” Motel 6 hindered the Fennerns’

ability to clean the motel (they claimed not to have the new

equipment they needed) and that the ‘“Fennerns were fired

because of their age.” (App., infra, 11a). The district court

relied however, on the fact that documentary evidence

showed the Fennerns actually received more supplies than

they initially claimed, and that even with the old equipment

they had at the motel they could have cleaned their motel in

a month (App., infra, 59a). There was no direct, probative

evidence that the Fennerns were discharged because of their

age. /d. at 36a. -

Thus, in reversing the district court, the court of appeals

in the Huttinger and Fennern cases was relying on the

plaintiffs’ weak evidence to prove pretext without any direct

evidence that Motel 6 was motivated to discriminate against

them because of their age. The issue is thus the same as that

presented in the Reeves case.

Ii. THE CIRCUIT COURT IMPROPERLY

GRANTED THE FENNERNS’ 28 U.S.C. § 1292(b)

PETITION IN THE ABSENCE OF A DISTRICT

COURT FINDING THAT THE CASE

PRESENTED A CONTROLLING QUESTION OF.

LAW AS TO WHICH THERE WAS A

SUBSTANTIAL GROUND FOR DIFFERENCE OF

OPINION.

While certifying the case for appeal, the district court

specifically found that there was not a substantial ground

for a difference of opinion on any controlling issue of law.

(App., infra, 21a, 25a). Under 28 U.S.C. § 1292(b), a district

court cannot certify a case for appeal unless it first

affirmatively finds that “there-is a controlling question of

law as to which there is substantial ground for difference of

opinion... .” That indeed is the view of the Seventh and

Eighth Circuits. See Union Oil Co. of California v. John

Brown E&C, 121 F.3d 305, 311 (7" Cir. 1997); Bullock v.

Baptist Memorial Hospital, 917 F.2d 58, 59-60 (8" Cir.

1987); Lerner v. Atlantic Richfield Co., 690 F.2d 203, 209

(Temp. Emer. Ct. of App. 1982) (dicta). Accordingly, the

district court should not have certified the case for an

interlocutory appeal and the court of appeals did not have

jurisdiction to consider the appeal. Moreover, the district

court’s reliance on judicial economy and party fairness do

not meet the stringent requirements applied by this Court

and in other circuits for appealing the nonfinal order in this

case. The question presented here is one of considerable

importance in the Court’s consideration of the appropriate

procedures for appellate review and the potential for abuse

of the interlocutory appeal process.

_A. The District Court’s Order of Certification.

In its Order of Certification, the district court considered

each of five legal issues that the Fennerns contended involved

a controlling question of law upon which there were

substantial grounds for difference of opinion. The district

court refused to certify the case on the basis of any of these

issues (App., infra, 21a-24a). Only as to the third assignment

of error — whether the district court was permitted to

examine the inference of discrimination drawn by a jury —

did the court find that there was substantial ground for

difference of opinion. /d. at 22a. The court found, however,

that “the result did not turn on this question of law.” /d. In

other words, the issue was not dispositive in this case.

Accordingly, the district court stated it was “reluctant” to

certify its ruling on that issue. /d. at 22a. The district court

concluded that it viewed “an interlocutory appeal of

any individual question of law to be unwarranted....

(App., infra, 25a)” ,

The district court nonetheless decided that, as a matter

of judicial economy and fairness to the litigants, the Fennerns

should be permitted to take an interlocutory appeal. Jd. The

court noted that it had granted Motel 6 judgment as a matter

of law on the willful violation issue — one of those which

Plaintiffs sought to appeal — and that the willfulness

question would not be submitted to the jury at the second

trial. /d. at 24a. The court reasoned that if an interiocutory

appeal was not permitted now a “disturbing result” might

occur after the second trial. Jd. at 24a-25a. The court of

appeals might affirm the new trial order but order a new trial

on the willful violation issue, thus requiring a time-

consuming third trial. /d. The district court concluded that

this possible result “favors allowing an immediate appeal.”

Id. Accordingly, the district court certified the case for an

interlocutory appeal pursuant to 28 U.S.C. § 1292(b). /d. at

26a.

B. The Court of Appeals’ Decision.

Over Motel 6’s opposition, the court of appeals, in a

one-sentence order, granted the Fennerns permission to

appeal pursuant to 28 U.S.C. § 1292(b). (App., infra, 15a).

C. The Court of Appeals Did Not Have Jurisdiction to

Hear the Fennerns’ Appeal.

Section 1292(b) provides a mechanism by which litigants

can take an immediate appeal of a nonfinal order upon the

consent of both the district court and the court of appeals.

In re Cement Antitrust Litigation, 673 F.2d 1020, 1025-26

(9" Cir. 1982). Before accepting an interlocutory appeal, a

court of appeals must first determine whether the district

court has properly found that al! the certification

requirements of the statute have been met. /d. The second of

these requirements is that there be a substantial ground for

difference of opinion on a controlling question of law.

28 U.S.C. § 1292(b). In the absence of a district court finding

that there is substantial ground for difference of opinion on

a controlling question of law, a court of appeals does not

have jurisdiction to entertain a petition under Section

1292(b). Jd. See Union Oil Co. of California v. John Brown

E & C, 21 F.3d 305, 311 (7 Cir. 1997) (appeal granted

only if district court believes an issue involves a controlling

question of law as to which there is substantial ground for

difference of opinion and “says so in writing. . . .”); Bullock

v. Baptist Memorial Hospital, 917 F.2d 58, 59-60 (8" Cir.

1987) (district court reliance on fact that immediate appeal

will enable court to hear action against all defendants at one

time and in one forum does not confer jurisdiction on court

of appeals under § 1292(b) in absence of district court finding

that there is a controlling question of law on which there is

substantial ground for difference of opinion); Lerner v.

Atlantic Richfield Company, 690 F.2d 203, 209 (Temp. Emer.

Ct. of App. 1982) (dicta).

In our case, the district court specifically found that there

was no controlling issue of law on which there was

substantial ground for difference of opinion under Section

1292(b). Thus, the jurisdictional prerequisite for a petition

to the court of appeals had not been met and the Fennerns’

petition should have been dismissed. The district court could

not escape this jurisdictional requirement by relying solely

on judicial economy and fairness to the litigants. There is

no precedent for such an approach.’

D. The Court’s Findings On Judicial Economy and

Party Fairness In Any Event Do Not Satisfy The

Stringent Requirements Under Section 1292(b).

Assuming for argument’s sake that a district court’s

finding that judicial economy and party fairness might serve

9. The district court’s case, Katz v. Carte Blanche Corp., 496

F.2d 744, 755 (3d Cir. 1974) does not stand for the proposition that

it may ignore the statutory requirement that there be substantial

ground for difference of opinion on a controlling question of law, if

it simply finds that an immediate appeal will serve judicial economy

and party fairness. Thus, in Katz, the district court had specifically

found that the 1292(b) criteria had been met. /d. at 752. The court

of appeals merely observed that avoidance of wasted trial time and

litigation expenses 1s a policy favoring interlocutory appeal that may

impact on the controlling-question-of-law issue.

as an independent ground for certification under Section

1292(b), a proposition we strongly dispute, Motel 6 submits

that the district court’s findings fell far short of meeting the

very high standard for appealing a nonfinal order.

The party seeking to appeal a nonfinal order has the

burden of demonstrating that “exceptional circumstances

justify a departure from the basic policy of postponing

appellate review until after the entry of a final judgment.”

Coopers & Lybrand vy. Livesay, 437 U.S. 463, 475 (1978)

(emphasis added), quoting from Fisons, Ltd. v. United States,

458 F.2d 1241, 1248 (7" Cir. 1972). See, the Ninth Circuit’s

decision in /n re Cement Antitrust Litigation, supra, 673 F.2d

at 1026, observing that the legislative history of § 1292(b)

revealed that: “... this section was to be used only in

exceptional situations in which allowing an interlocutory

appeal would avoid protracted and expensive litigation.” /d.

(emphasis added). The “exceptional case” doctrine applies

to orders granting new trials. See Massey v. Gulf Oil Corp.,

508 F.2d 92 (5" Cir. 1975); Shows v. Jamison Bedding, Inc.,

671 F.2d 927, 930 n.2 (5 Cir. 1982); Nebel v. Avichal

Enterprises, Inc., 125 F.R.D. 415, 420 (D. N.J.).

The district court relied on the fact that resolution of the

willfulness issue might have avoided a third trial later.

(App., infra, 24a-25a). The same could be said, however, of

many evidentiary issues involving a district judge’s exclusion

of documentary evidence or testimony at the first trial. That

evidence would be excluded at the second trial, but we know

of no cases that hold that an evidentiary question of that sort

constitutes exceptional circumstances warranting an

interlocutory appeal. See Steele v. Wiedmann Machine

Company, 280 F.2d 380, 383-384 (3" Cir. 1960).

Section 1292(b) is not a vehicle for piecemeal appeals,

and there was no basis for going that route here. The court

of appeals should have denied the Fennerns’ petition. It did

not have jurisdiction to hear the case.

Since the court of appeals used the facts in the Fennern

case for its reversal of the district court’s finding that the

two cases were improperly consolidated, the court of appeals’

decision on the consolidation question must be reversed.

I1I. THE COURT OF APPEALS FAILED PROPERLY

TO APPLY AN ABUSE OF DISCRETION

STANDARD TO THE DISTRICT COURT’S

FINDING THAT THE CASES WERE

IMPROPERLY CONSOLIDATED.

Without finding that the district court had abused its

discretion, the court of appeals reversed the district court’s

granting of a new trial in the Fennern case for the additional

reason that the Fennern and Huttinger cases should not have

been consolidated for trial and that Motel 6 was seriously

prejudiced thereby. (App., infra, 11a). The question of the

standard for appellate review to be applied where a district

court decides after the verdict in a civil case that a defendant

was prejudiced by the consolidation of two insufficiently

related cases appears to be one of first impression. The issue

is nonetheless an important one in the federal appellate

review process. Here, the court of appeals has simply

substituted its judgment for that of the district, and did so

after misstating the record in two crucial respects.

Unless the trial court has abused its broad discretion, a

reviewing court may not overturn a trial court’s refusal to

consolidate cases for trial. Anderson v. Bessemer City, 470

U.S. 564, 573-74 (1985). If the trial court’s initial decision

is reviewed for an abuse of discretion, the trial court’s later

decision, finding that the consolidation resulted in serious

prejudice to the Defendants, should be judged by the same

standard. Under that standard, a reviewing court may not

simply substitute its judgment as to the weight of the

evidence for that of the trial judge. If the district court’s

account of the evidence is plausible in light of the evidence

viewed in its entirety it must be affirmed.

In the instant cases, the district court relied in significant

part on the “substantial differences in the reasons for

discharges” between the Huttingers and Fennerns, finding

that the similarities regarding age differentials and the

temporal proximity of the discharges to their vacations in

both cases “pale by comparison” and were inconsequential.

(App., infra, 63a).'° In reversing the district court, the court

of appeals relied on the following: “[E]ach case involved

similar allegations against the same Motel 6 managers, and

the same patterns of furtive inspections followed by instant

terminations.” /d. at 11a. Obviously, there is a direct conflict

between the district court’s finding that the reasons given

for the discharges were substantially different and the court

of appeals’ finding that the reasons involved “similar

allegations.” In these circumstances, under an abuse-of-

discretion standard, or even under a stricter standard of

review, the panel should have explained why the district

10. Notably, the district court found that, at the same time that

Massman and Griffith were discharging the Huttingers, they granted

the Fennerns’ request to move to a smaller, niore manageable motel

in Idaho Falls. (App., infra, 53a fn.17).

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court’s “substantial differences” finding was not supported

in the record. The court of appeals did not do so. There is

absolutely no record of evidence to support the proposition

that the reasons for the discharges in the two cases were

“similar” or even overlapped at all. In fact, the record

evidence demonstrates that the reasons for the discharges in

the two cases were quite different, as the district court found.

See supra at pp. 5, 10 and App., infra, 34a, 39a.

There is also no record evidence to support another of

the court of appeals’ findings of similarities in the two

cases: “the same pattern of furtive inspections... .”

(App., infra, 11a). Massman went to the Huttingers’ motel

to investigate the relief manager’s and employees’ specific

complaints of discrimination by the Huttingers, a most

serious matter whose resolution he and Griffith rightly

concluded should not wait until the Huttingers’ return.

App., infra, 46a, 48a; Tr. 1079, 1080-82. In contrast, after

instructing the Fennerns six months earlier to clean up their

motel, Massman and Griffith returned for a regular

inspection, not in response to any complaints. Tr. 1135. The

“pattern” was not the same in the two cases. Since the two

cases were quite dissimilar in the most important respects,

the court of appeals was also not entitled to rely on

inconsequential “similarities” in the cases to reject the district

court’s finding that Motel 6 was severely prejudiced by the

district court’s decision to preclude Motel 6’s statistical

evidence on age discrimination complaints. In sum, the court

of appeals had no significant basis for finding that the district

court’s decision to grant a new trial because the cases were

wrongly consolidated was an abuse of discretion or was

otherwise incorrect.

CONCLUSION

For the foregoing reasons, the Court should grant

Motel 6’s petition for certiorari in these cases and reverse

the court of appeals rulings on the issues presented in these

cases.

Respectfully submitted,

MICHAEL F. MARINO

Counsel of Record

FREDERIC FREILICHER

HUNTON & WILLIAMS

Attorneys for Petitioners

Suite 1700

1751 Pinnacle Drive

McLean, Virginia 22102

(703) 714-7400

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APPENDIX

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

DATED AND FILED JULY 6, 1999

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 98-35533

D.C. No. 95-CV-262-BLW

ART HUTTINGER, HUSBAND, AND

DONNA HUTTINGER, WIFE

Plaintiffs — Appellants,

Vv.

MOTEL 6 OPERATING LP; MOTEL 6 GP, INC.,

Defendants—AppeHees-

No. 98-35608

D.C. No. 95-CV-121-BLW

JAMES FENNERN, HUSBAND, AND

DELORES FENNERN, WIFE

Plaintiffs — Appellants,

MOTEL 6 OPERATING LP; MOTEL 6 GP INC.;

JOHN DOES, 1-4, 5

Defendants — Appellees.

Appendix A

ORDER

Argued and Submitted March 9, 1999

Seattle, Washington

Consolidated appeals from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted March 9, 1999

Seattle, Washington

Before: B. FLETCHER, REINHARDT, and THOMAS,

Circuit Judges.

Art and Donna Huttinger and James and Delores

Fennern, former managers at Motel 6 motels, appeal the

district court’s reversal of jury verdicts in their favor in their

consolidated age discrimination actions against Motel 6. Both

couples were discharged by Motel 6 after the same company

officials inspected their motels while they were away on

vacation. Both were replaced by younger, less experienced

husband and wife management teams that received

substantially lower wages.

After the jury returned verdicts favorable to both

plaintiffs, the district court granted judgment as a matter of

law against the Huttingers, and in the alternative, a new trial.

The court denied judgment as a matter of law to Motel 6

in the Fennern case, but granted a new trial. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

We reinstate both jury verdicts.

Appendix A

The Huttingers

Art and Donna Huttinger managed a Motel 6 in

Pocatello, Idaho, and had managed motels for Motel 6 from

1985 until their termination in 1993. At the time of their

discharge, Art was sixty-eight years of age and Donna was

fifty-five. They had always received satisfactory evaluations,

and Donna, as manager, received merit pay increases for each

year of employment. A former area manager testified that

the Huttingers were among the best managers he had.

Motel 6 insists that one of the reasons for the discharge

was the Huttingers’ discrimination against Native Americans.

There are several Native American reservations near the

Pocatello Motel 6. The Huttingers contend that the motel is

plagued with prostitution and alcohol-related problems and

frequented by drunk locals who destroy the rooms. To

minimize those problems, the Huttingers maintained a

no-rent list of problematic customers. Motel 6 obtained a

copy of a discriminatory rental policy that the Huttingers

testified they had ceased using in 1991. The parties dispute

how Motel 6 obtained the policy statement. A desk clerk,

Theresa Jensen, who apparently did not get along well with

Donna Huttinger, testified that a discriminatory policy was

in effect when she worked at the motel and that she was

reprimanded for not seeking manager approval of “Indians.”

When the Huttingers were away on vacation in May

1993, Aileen and James Malone ran the motel as relief

managers. Aileen contacted the new area manager, Doug

Massman, to report employee unrest. Massman, who had

inspected the motel in the two weeks prior to Aileen’s call,

Appendix A

returned to the motel for another inspection in the Huttingers’

absence. Motel 6 insists that the employees spontaneously

reported their dissatisfaction with the Huttingers. Massman

fired the Huttingers when they returned from vacation on

June 2, 1993, without any warning. He alleged that they had

violated a company policy as to how they handled room keys,

a violation he claims to have discovered in his first inspection

but never divulged to the Huttingers. He also asserted

that the Huttingers maintained an unlawful policy of

discriminating against Native Americans. Massman did not

give the Huttingers an opportunity to respond to the

allegations. He never reviewed their personnel files before

terminating them.

The Malones replaced the Huttingers as managers.

Aileen was forty-three and James was forty-five at that time.

Aileen wanted Motel 6 to employ her in Idaho so that she

could be closer to her family. The Malones received lower

salaries. Motel 6 had paid Donna Huttinger $660.16

biweekly, but paid James Malone only $376.40. Art

Huttinger had received an hourly wage of $4.25 per hour,

the same wage Motel 6 paid to Aileen Malone.

The Huttingers filed a claim under the Idaho Human

Rights Act (“IHRA”), Idaho Code § 67-5901 et seq.’ The

jury returned a verdict in favor of the Huttingers, finding

that age was a motivating factor in their termination and that

Motel 6 had willfully violated the statute. The jury awarded

Art Huttinger $45,307.20 in back pay, $1,826.80 in front

2. Because they failed to timely file an EEOC complaint, they

were precluded from bringing a claim under the Age Discrimination

in Employment Act, 29 U.S.C. § 621, ef seq.

Appendix A

pay, and $1,000 in punitive damages under the Idaho Human

Rights Act, for a total judgment of $48,134. The jury awarded

Donna Huttinger $76,087.20 in back pay, $2,729.80 in front

pay, and $1,000 in punitive damages for a total award of

$79,817.

Post trial, the district court granted judgment as a matter

of law in favor of Motel 6, and in the alternative, a new trial,

on the issues of liability and willfulness of the violation.

The district court certified its order granting judgment as a

matter of law as a final appealable judgment pursuant to Rule

54(b) of the Federal Rules of Civil Procedure, and the

Huttingers timely appealed.

The Fennerns

James and Delores Fennern managed a Motel 6 in Idaho

Falls, Idaho, and had managed motels for Motel 6 since 1981.

They took over a filthy facility and were made responsible

for cleaning it up. In December 1993, Massman and Scott

Griffith, another supervisor, inspected the Fennerns’ motel

while the Fennerns were on vacation. Massman and Griffith

noted several violations, mostly involving the cleanliness

of the motel. At trial, the staff explained that Massman had

insisted on getting his room immediately, before they had a

chance to cican it thoroughly, and that the relief managers

were responsible for the motel’s cleanliness during the:

Fennerns’ absence.

Massman fired the Fennerns the night they returned from

vacation. Jim was sixty years old and Delores was fifty-eight.

Massman never looked at their personnel files before firing

Appendix A

them. He did not know that the Fennerns had successfully

cleaned up motels in other cities, and opened new motels.

Mike and Loree Shearouse relatively inexperienced

managers, replaced the Fennerns. Michael was thirty-five

and Loree was forty-nine. Michael had two months of

experience managing motels for Motel 6 and Loree had six

months of experience. The Shearouses received cleaning

support that the Fennerns did not receive. Delores Fennern

had received a biweekly salary of $820; Loree Shearouse

received a biweekly salary of $346.40. Jim Fennern received

an hourly wage of $4.25, the same as Michael Shearouse.

The Fennerns filed claims under the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and

the IHRA. The jury returned a verdict in favor of the

Fennerns, finding that age was a motivating factor in their

termination and that Motel 6 had willfully violated the

statute. The jury awarded Jim Fennern $15,583 in back pay,

$12,323.70 in front pay, and $15,583 in exemplary damages’

for a total award of $43,489.70. The jury awarded Delores

Fennern $64,471 in back pay, $57,622.30 in front pay, and

$64,471 in exemplary damages for a total award of

$186,564.30.

The district court denied Motel 6’s motion for judgment

as a matter of law as to liability, but granted a new trial,

finding the evidence insufficient to justify a favorable veidict

3. The district court ruled separately that liquidated damages

under the ADEA and punitive damages under the Idaho Human

Rights Act were duplicative, and awarded only the higher ADEA

damages.

Appendix A

for the Fennerns, and concluding that consolidating the trials

had been an error that severely prejudiced Motel 6. The court

also granted judgment as a matter of law and a conditional

new trial on Motel 6’s willful violation of the statutes. The

district court certified its order as appealable under 28 U.S.C.

§ 1292(b) and this court accepted the appeal. The Fennerns

timely appealed.

ANALYSIS

1. Age Discrimination Claims

The Age Discrimination in Employment Act, 29 U.S.C.

§ 621, et seg. forbids an employer from discriminating

against employees over the age of forty on account of age.

See 29 U.S.C. §§ 623, 631. The Idaho Human Rights Act,

67-5901 et seqg., similarly protects older employees and

employs the same legal standards as the ADEA. See O'Dell

v. Basabe, 119 Idaho 796, 811, 810 P.2d 1082 (1991). The

Huttingers and the Fennerns, both over age forty, argue that

Motel 6 terminated them because of their age.

Age discrimination claims are subject to the same,

familiar burden-shifting analysis articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See

Wallis v. J.R. Simplot Co., 26 F.3d 885, 888-89 (9th Cir.

1994). The plaintiff has the initial burden of establishing a

prima facie case of discrimination and must prove that she

was (1) a member of a protected class, age 40-70; (2)

performing her job in a satisfactory manner; (3) discharged;

and (4) replaced by a substantially younger employee with

equal or inferior qualifications. /d. at 891. The establishment

Appendix A ~

of a prima face case “in effect creates a presumption that the

employer unlawfully discriminated against the employee.”

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).

The burden then shifts te ihe employer to show a legitimate,

nondiscriminatory reason for its employment decision. See

McDonnell-Douglas, 411 U.S. at 802. The burden then shifts

back to the plaintiff to show that the employer's stated reason

was pretextual. See id. at 804. The ultimate burden of

persuading the trier of fact remains at all times with the

plaintiff. See St. Mary's Honor Center, 509 U.S. at 507.

Both sets of plaintiffs undisputedly established a prima

facie case of discrimination. Motel 6 met its burden by

advancing nondiscriminatory reasons for its decisions to

terminate the Huttingers and Fennerns. Because the plaintiffs

retain the burden of persuasion, we must determine whether

the plaintiffs produced evidence that undermined Motel 6's

alleged nondiscriminatory reasons for termination and

whether that evidence supported the jury's conclusion that

age was a motivating factor in each plaintiffs’ termination.

See e.g., St. Mary's Honor Center, 509 U.S. at 511.

1. Judgment as a Matter of Law Against the Huttingers

We review de novo a district court's decision to grant

judgment as matter of law. EEOC v. Pape Lift Inc., 115 F.3d

676, 680 (9th Cir. 1997), Judgment as a matter of law ts

appropriate only where the evidence, construed in the light

most favorable to the nonmoving party, “permits only one

reasonable conclusion, and that conciusion ts contrary to that

of the jury.” Forrett v. Richardson, 112 F.3d 416, 419 (9th

Cir. 1997); accord Omega Envil., Inc. v. Gilbarco, Inc., 127

Appendix A

F.3d 1157, 1161 (9th Cir. 1998). Judgment as a matter of

law may not be used simply because of disagreement with a

jury's verdict.

The standard for granting judgment as a matter of law is

the same as that for granting summary judgment. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If a plaintiff

succeeds in raising a genuine factual issue regarding the

authenticity of the employer's stated motive, . . . it is for the

trier of fact to decide which story is to be believed.”

Washington vy. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993).

A fact finder’s “rejection of the defendant's proffered reasons

will permit the trier of fact to infer the ultimate fact of

intentional discrimination,” but it does not compel judgment

for the plainuff. See St. Mary's Honor Center, 509 U.S. at

511 (emphasis tn original).

The sources of the evidence against the Huttingers —

a relief manager who took over the Huttingers’ managerial

role after their termination, and a disgruntled employee —

were not “disinterested” witnesses as the district court

concluded. The evidence that the area manager who

terminated the Huttingers held that position for less than one

month before conducting his surreptitious inspections, never

reviewed their personnel files, and never inquired about the

Huttingers’ alleged discriminatory policies before

terminating them was before the jury. Although the evidence

could have supported a jury verdict in favor of either party,

it does not compel a verdict in favor of Motel 6. Juugment

as a matter of law, therefore, was inappropriate.

10a

Appendix A

2. New Trial for the Huttingers and the Fennerns

We review for an abuse of discretion a district court’s

grant of a new trial. Anheuser Busch v. Natural Beverage

Distrib., 69 F.3d 337, 346 (9th Cir. 1995); Roy v. Volkswagen

of America, Inc., 896 F.2d 1174, 1176 (9th Cir. 1990),

amended, 920 F.2d 618 (1991). We also review for an abuse

of discretion a district court’s conditional grant of a new

trial pursuant to Federal Rule of Civil Procedure 50(c)(1).

Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1248 (9th Cir.

1998).

The district court may grant a new trial only if “the

verdict is contrary to the clear weight of the evidence, or is

based upon evidence which is false, or to prevent, in the

sound discretion of the trial court, a miscarriage of justice.”

Roy, 896 F.2d at 1176; see also Olitz v. St. Peter's Community

Hosp., 861 F.2d 1440, 1452 (9th Cir. 1988). We must uphold

the district court if any of its grounds for granting a new

trial are reasonable. Oltz, 861 F.2d at 1452. However, a

district court may not grant or deny a new trial merely

because it would have arrived at a different verdict. Wilhelm

v. Associated Container Transp. (Australia) Ltd., 648 F.2d

1197, 1198 (9th Cir. 1981).

The jury’s verdict in favor of the Huttingers is not against

the clear weight of the evidence, the reason advanced by the

district court. Although the jury could have believed Motel

6, there was ample evidence supporting the jury’s favorable

verdict for the Huttingers. A conditional new trial should

not have been granted.

lla

Appendix A

We disagree with the district court’s conclusion that a

new trial was warranted in the Fennern case because the

evidence “strongly indicates that a mistake was committed

by the jury in rendering its verdict,” that the jury incorrectly

inferred the ultimate fact of age discrimination, and that

Motel 6 was prejudiced by the consolidation of the trials.

Although there was evidence to suggest that Motel 6 may

have had valid reasons to terminate the Fennerns because

they did not keep the motel clean, there was ample evidence

showing that Motel 6 had hindered the Fennerns’ ability to

clean the filthy motel they took over, that relief managers

were responsible for cleanliness in the managers’ absence,

and that the Fennerns were fired because of their age.

We reject the district court’s unsupported “alternative

and better view” for deciding to grant a new trial. The court

also erred in comparing only the relative ages of the Mrs.

Fennern and Mrs. Shearouse to find a weak inference of age

discrimination. The couples were hired as teams, not

individuals. We conclude that the verdict was not contrary

to the clear weight of the evidence.

We also reject the district court’s decision to grant a

new trial because it reconsidered the wisdom of consolidating

the cases. A district court has broad discretion to consolidate

similar cases. Jnvestors Research Co. v. United States Dist.

Court, 877 F.2d 777 (9th Cir. 1989). Here, each case involved

similar allegations against the same Motel 6 managers, and

the same pattern of furtive inspections followed by instant

terminations. The parties extensively briefed the issue of

consolidation before the district court decided to consolidate

the cases. Given the similarities between the cases, Motel 6

12a

Appendix A

was not severely prejudiced by the plaintiffs’ decision not

to offer statistical evidence of a pattern and practice of age

discrimination throughout Motel 6’s operations.

3. Willful violation

The jury also determined that Motel 6 had willfully

violated both statutes and awarded liquidated damages under

the ADEA to the Fennerns pursuant to 29 U.S.C. § 626(b),

and punitive damages to the Huttingers pursuant to IHRA,

1.C. § 67-5908(3)(e). The district court granted judgment as

a matter of law in favor of Motel 6 against both parties, and

in the alternative, a new trial pursuant to Rule 50(c)(1).

An ADEA violation is “willful” if the employer “knew

or showed reckless disregard for the matter of whether its

conduct was prohibited by the ADEA.” Hazen Paper Co. v.

Biggens, 507 U.S. 604, 614 (1993). It is not “willful” if the

employer merely knew that tiie ADEA was “inthe picture.”

Id. “Once a ‘willful’ violation has been shown, the employee

need not additionally demonstrate that the employer’s

conduct was outrageous, or provide direct evidence of the

employer's motivation, or prove that age was the

predominant, rather than a determinative, factor in the

employment decision.” /d. at 617.

The district court relied on Seventh Circuit case law to

conclude that both parties had failed to prove Motel 6’s

“intent to recklessly flaunt the ADEA’s requirements.” See

Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216 (7th Cir.

1991). The Ninth circuit does not use a “recklessly flaunt”

standard. To recover punitive damages, a plaintiff must

13a

Appendix A

“make a showing beyond the level of intentional

discrimination required for compensatory damages.” See Ngo

v. Reno Hilton Resort Corp., 156 F.3d 988 (9th Cir. 1998),

amending 140 F.3d 1299, 1304 (9th Cir. 1998).

Here, the jury was properly instructed that “‘a defendant’s

conduct is willful if the defendant knew or showed reckless

disregard for whether the discharge of plaintiff because of

his/her age was prohibited by the law.” A jury could have

reasonably concluded that a new area manager who never

reviewed the files of ADEA-protected employees, and

summarily dismissed them upon their return from vacation

after conducting inspections in their absence satisfied the

threshold for a willful violation. We conclude that the

Huttingers and the Fennerns made the requisite showing that

Motel 6 knew or showed reckless disregard for whether its

actions violated the ADA. Liquidated damages under the

ADEA and punitive damages under the Idaho statute were

properly awarded.

CONCLUSION

We conclude that the district court erred in vacating the

jury verdicts. The evidence did not compel a finding against

the Huttingers, nor was the clear weight of the evidence in

favor of Motel 6 in either case. We find no error in the

consolidation or the evidence admitted. The jury instructions

were proper and no objections were made to them. We

reverse the district court’s grant of judgment as a matter of

law and a conditional new trial in the Huttinger case. We

reverse the court’s grant of a new trial in the Fennern case.

In both cases, we reverse the court’s rulings denying punitive

PS IRE LEEIELE SI GEOL PGS OE OG SE EES GASSER RS EL PARE IRR hE EEE Std Ep PE ENN

l4a

Appendix A

damages under Idaho law and liquidated damages under the

ADEA to the parties. We reinstate the jury verdicts in both

cases.

REVERSED.

15a

APPENDIX B — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

DATED AND FILED JUNE 10, 1998

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 98-80387

DC# CV-95-121-BLW

Idaho (Boise)

JAMES FENNERN,; et al.,

Plaintiffs-Appellants,

VS.

MOTEL 6 OPERATING LP; et al.,

Defendants- Appellees.

ORDER

Before: REINHARDT and THOMPSON, Circuit Judges

The petition for permission to appeal pursuant to 28

U.S.C. § 1292(b) is granted. Within 10 days of this order,

petitioner shall perfect the appeal pursuant to Federal Rule

of Appellate Procedure 5(d).

l6a

APPENDIX C — ORDER OF CERTIFICATION OF

THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF IDAHO DATED AND

FILED MAY 13, 1998

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Civil No. 95-0121-E-BLW

JAMES FENNERN AND DELORES FENNERN,

husband and wife,

Plaintiffs,

MOTEL 6 OPERATING L.P., and

MOTEL 6 G.P., INC.,

Defendants.

ART HUTTINGER AND DONNA HUTTINGER,

husband and wife,

Plaintiffs,

Vv.

MOTEL 6 OPERATING L.P., and

MOTEL 6 G-P., INC.,

Defendants.

17a

Appendix C

ORDER OF CERTIFICATION

The Court has before it the plaintiffs’ motion for an order

certifying these consolidated cases for appeal to the Ninth

Circuit.’ An abbreviated recitation of the background of this

litigation follows:

The Fennern plaintiffs and the Huttinger plaintiffs are

former employees of Motel 6. They were discharged by

Motel 6 and, as a result, filed separate age-discrimination

claims against Motel 6. Over the objection of Motel 6, the

Court consolidated the cases for trial, at the conclusion of

which the plaintiffs obtained verdicts in their favor. Motel 6

moved alternatively for judgment as a matter of law or for a

new trial in both cases. The Court granted judgment as a

matter of law in favor of Motel 6 in the Huttinger case in its

entirety and on one issue in the Fennern case, and it granted

a new trial on the remainder of the Fennern case.

It appears that the plaintiffs presumed that the Court’s

ruling could be immediately appealed to the Ninth Circuit.

However, the new-trial order in the Fennern case is not

immediately appealable without an order of certification

1. The plaintiffs also filed a motion to expedite the decision of

their motion for certification. Despite the motion to expedite, the

Court allowed Motel 6 to have the ordinary time for response

permitted by the Local Rules becan’se of the lack of a demonstrable

need for an earlier decision. However, because the Court has decided

to grant the motion for certification after reviewing the plaintiffs’

and Motel 6’s initial briefs, the Court will grant the motion to

expedite in the sense that it will not await a reply brief from the

plaintiffs prior to rendering decision.

18a

Appendix C

under 28 U.S.C. § 1292(b) and, consequently, the entry of

judgment as a matter of law in the Huttinger case is not

appealable without the issuance of a Rule 54(b) certificate.

The plaintiffs now seek such orders of certification. The

Court will grant the motion for certification in both cases,

and its reasoning follows.

The Huttinger Case

An appeal from a final order in one of multiple

consolidated cases 1s permitted only upon certification under

Rule 54(b) of the Federal Rules of Civil Procedure. See

Huene v. United States, 743 F.2d 703 (9th Cir. 1984). Thus,

since a new trial was ordered in the Fennern case, the Court

must issue a Rule 54(b) certificate before the Huttinger case

may be appealed. Under Rule 54(b), the Court may enter

a final judgment in the Huttinger case under these

circumstances “only upon an express determination that there

is no just reason for delay and upon an express direction for

entry of judgment.” Fed.R.Civ.P. 54(b). As a threshold

matter, the Court notes that Motel 6 does not object to the

issuance of a Rule $4(b) certificate in the Huttinger case.

The Court agrees with the Huttingers, and with Motel 6,

that there is no just reason for delay of the appeal of the

Huttinger case. The most significant issue in both of the cases

is Whether the jury's disbehef of Motel 6's proffered reasons

for discharging the plaintiffs was supported by the evidence

at tnal. The proffered reasons in each case were entirely

dissimilar, and there was little, if any, overlap in the evidence

presented by the Fennerns and the Huttingers at trial.

Therefore, the result on appeal of one case is not in any

19a

Appendix C

necessary sense linked with the result of the other, despite -

the fact that there is some potential that certain common legal

issues could be involved in the appeal of both cases.

Moreover, in granting a new trial in the Fennern case,

the Couri noted its opinion, aided by the hindsight acquired

by having gone through trial, that the cases should not have

been tried together in light of the plaintiffs’ morning-of-trial

abandonment of their attempt to put on pattern-and-practice

evidence of age discrimination on the part of Motel 6. Part

of the Court’s rationale was that the similarities of the cases

are largely superficial and not particularly significant. The -

Court adheres to that opinion at this time.

For these reasons, the Court finds that there is no just

reason for delay of the appeal of the Huttinger case.

Upon granting judgment as a matter of law in favor of

Motel 6 in that case, the Court entered an Amended Judgment

reflecting its ruling. The Court did so because it presumed

the Huttinger case to be appealable at that point without a

Rule 54(b) certificate, regardless of the pendency of the

Fennern case. The Court now directs the parties to consider

the Amended Judgment to be a final judgment in satisfaction

of Rule 54(b)'s requirement of an “express direction for entry

of judgment.” The motion for a Rule 54(b) certificate in the

Huttinger case ts granted.

The Fennern Case

A new-trial order is interlocutory and not immediately

appealable. See Schudel v. General Elec. Co., 120 F.3d 991,

20a

Appendix C

994-95 (9th Cir. 1997). The Fennerns seek certification of

the new-trial order, as well as the partial grant of judgment

as a matter of law against them, for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b). The Court may only certify

a ruling for interlocutory appeal under that statute if it meets

the following requirements: (1) it must involve a controlling

question of law; (2) there must be substantial grounds for

differences of opinion regarding that question; and (3) an

immediate appeal may materially advance the ultimate

termination of the litigation. See /n re Cement Antitrust

Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982).

A question of law is “controlling” if its “resolution on

appeal could materially affect the outcome of litigation in

the district court.” /d. The Fennerns assert the existence of

five such controlling questions of law about which there are

substantial grounds for differences of opinion: (1) whether

the Court applied the correct standard in deciding to grant a

new trial; (2) whether the Court properly required the

Fennerns to discredit all of Motel 6’s proffered reasons for

discharge; (3) whether the Court was permitted to determine

whether the jury reasonably inferred age discrimination from

its disbelief of the proffered reasons and the other evidence

at trial; (4) whether the Court was permitted to consider the

consolidation of the Fennern and Huttinger cases for trial,

which the Court perceives by way of hindsight to have been

prejudicial to Motel 6, as a reason for granting a new trial;

and (5) whether the Court correctly granted judgment as a

matter of law in favor of Motel 6 on the Fennerns’ claim for

a willful violation of the Age Discrimination in Employment

Act.

21a

Appendix C

As to each of the questions of law raised by the Fennerns,

the Court concludes that the first and third elements of the

In re Cement Antitrust Litigation test are largely satisfied

because a decision favorable to the Fennerns could materially

affect the necessity of a retrial or the law to be applied upon

retrial. However, as discussed below, the Court concludes

that only the third issue identified by the Fennerns raises a

question of law upon which there are substantial grounds

for a difference of opinion. However, even though there may

be substantial grounds for a difference of opinion as to that

issue, the resolution of that question of law was not essential

to the Court's decision to grant a new trial. The Court is

therefore reluctant certify its ruling on that particular issue

for interlocutory appeal.

Regarding the Fennerns’ first assignment of error, the

new-trial standard the Fennerns assert was applicable is that

the Court could only have granted a new trial if the verdict

were against the “great weight” of the evidence. The standard

the Court applied used the word “clear” in place of “great.”

The Court is unable to perceive any meaningful difference

between the two standards, and the Court can confidently

State that it would have reached the same result by applying

the “great weight” standard.

As to the second assignment of error, the Fennerns argue

that the Court improperly required the Fennerns to discredit

each of Motel 6’s proffered reasons for discharge because

those reasons were shifting and varied over time. Were they

not shifting, the Fennerns concede that it would have been

appropriate to require the plaintiff to discredit each of the

proffered reasons under Odima v. Westin Tucson Hotel Co.,

22a

Appendix C

991 F.2d 595, 598 (9th Cir. 1993). The Court required the

Fennerns to discredit each proffered reason because the

evidence did not support a finding that the proffered reasons

were shifting or varied over time in any meaningful way.

Accordingly, the Fennerns’ argument regarding the law to

be applied where the proffered reasons are shifting is

inapplicable.

As to the third assignment of error, the Court agrees that

whether it was permitted to examine the inference of

discrimination drawn by the jury is a legal question about

which there is a substantial grounds for a difference of

opinion. Here, however, that question need not be answered.

The Court stated three independent grounds for granting a

new trial in the Fennern case, the overriding one of which

was that the evidence did not support the jury’s disbelief of

the proffered reasons for discharge. In light of that ruling,

the jury had no sound evidentiary basis from which to

legitimately infer discrimination. Thus, the Court would still

have granted a new trial even if ‘* had concluded that it lacked

the power to examine the inference of unlawful

discrimination drawn by the jury from its disbelief of the

proffered reasons. As such, the result appealed by the

Fennerns did not turn on this question of law.

The fourth assignment of error also fails to meet the

second prong of the /n re Cement Antitrust Litigation test.

As its third independent ground for granting a new trial, the

Court posited that Motel 6 was prejudiced by having the

Huttinger and Fennern cases tried together, in light of the

plaintiffs’ morning-of-trial abandonment of their attempt to

put on pattern-and-practice evidence of age discrimination

23a

Appendix C

by Motel 6 in its employment decisions. Motel 6 had earlier

unsuccessfully fought the consolidation. In addition to the

prejudice of consolidation, the Court determined that Motel

6 was prejudiced by the Court’s decision not to admit Motel

6’s statistical evidence tending to disprove a pattern and

practice of such discrimination because the unforeseen result

of the consolidation and this evidentiary decision was to

allow the plaintiffs to argue a “pattern” of discrimination

based upon their two cases, but to disallow Motel 6 from

rebutting the existence of such a pattern. The effect was

plainly prejudicial. The Court does not see a substantial

ground for a difference of opinion on whether it has the

discretion to consider the result of pretrial rulings and

evidentiary rulings during trial in deciding a motion for a

new trial, nor does it see a reasonable basis on which the

Fennerns can assert that the Court abused its discretion in

doing so.

Finally, the Court also has trouble fitting the Fennerns’

fifth assignment of error within the requirements of the Jn

re Cement Antitrust Litigation test. While the Court granted

a new trial on the issue of whether Motel 6 committed a

basic ADEA violation in discharging the Fennerns, the Court

instead granted judgment as a matter of law in favor of Motel

6 regarding whether Motel 6 committed a willful violation

of the ADEA. Noting that proving a willful violation requires

satisfaction of a standard in addition to that which must be

satisfied in proving a basic violation, even though the same

evidence may be used to meet prove both sorts of violations,

the Court concluded that no reasonable jury could have found

a willful violation based upon the evidence at trial. Although

the Fennerns question whether the Court applied the correct

24a ~

Appendix C

standard because of its use of the phrase “recklessly flaunt”

as a judicial gloss on the applicable “reckless disregard”

standard, the Court does not perceive the use of this phrase

to have significantly impacted its application of the “reckless

disregard” standard, or in any way to have heightened that

standard. Rather, the Court perceives the only question about

which there could be substantial grounds for a difference of

opinion is whether there was evidence from which the jury

could have reasonably concluded that the “reckless

disregard” standard had been met. This question is not

properly certifiable under ordinary circumstances.

However, the partial grant of judgment as a matter of

law is significant here in a separate respect. Were the Court

to refuse to certify the Fennern case for interlocutory appeal,

a new trial could be held in the next few months and would

likely consume approximately one week of the Court’s

calendar. It is most likely that a final judgment would be

entered shortly after the new trial that would be immediately

ripe for appeal.’ Had the Court granted a new trial as to all

issues, then regardless of whether the new-trial order were

affirmed or reversed on appeal, the case would in all

likelihood be finally decided by the appeal. However,

because the Court granted judgment as a matter of law on

the willful-violation issue, that issue will not be submitted

to the jury at the second trial. Thus, if the new-trial order is

not appealed until after the second trial, a disturbing result

could occur: were the Ninth Circuit to affirm the new-trial

order, but reverse the entry of judgment as a matter of law

2. Of course, the same result at the second trial as occurred at

the first trial — a verdict unsupported by the evidence — is

theoretically possible.

25a

Appendix C

and order a new trial as to the willful-violation issue, the

parties would then be forced to bear the expense of a third

trial because the willful-violation issue would not have been

presented to the jury at the second trial. Since essentially

the same evidence would be used by the Fennerns to prove

both a basic and a willful violation, the third trial would be

precisely as broad and time-consuming as the second.

This possible result favors allowing an immediate appeal

of the Fennern case. See 16 Charles Alan Wright et al,

Federal Practice and Procedure § 3930 n. 23 (1995 supp.)

(citing William Inglis & Sons Baking Co. v. ITT Continental

Baking Co., 652 F.2d 917 (9th Cir. 1981), as suggesting that

the Ninth Circuit considers allowing an interlocutory appeal

to be appropriate in circumstances very similar to those

presented here). Although the Court views an interlocutory

appeal of any individual question of law to be unwarranted

under these circumstances, the Court is of the opinion that,

as a matter of judicial economy and fairness to the litigants,

an interlocutory appeal of all issues presented by the Fennern

case is merited. While the Court has difficulty fitting the

Fennern case within the strictures of the Jn re Cement

Antitrust Litigation test, the Court concludes that Section

1292(b) allows consideration of the factors of judicial

economy and the burden to the litigants that might result

from repeated, protracted proceedings. See 16 Charles Alan

Wright et al, Federal Practice and Procedure § 3929 (1977)

(citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754-56

(3rd Cir. 1974)). Because failure to certify this case for

interlocutory appeal may well result in multiple new trials,

the Court will certify the Fennern case in its entirety for

interlocutory appeal under Section 1292(b).

26a

Appendix C

Finally, the Court will stay the proceedings in the

Fennern case until the Ninth Circuit determines whether to

accept the interiocutory appeal.

ORDER

Based on the foregoing and the Court being fully advised

in the premises,

NOW THEREFORE IT IS HEREBY ORDERED, that

Plaintiffs’ motion for expedite the hearing of their motion

for certification (Docket No. 260) shall be, and the same is

hereby, GRANTED.

IT IS FURTHER ORDERED, that Plaintiffs’ motion for

certification (Docket No. 258) shall be, and the same is

hereby, GRANTED. The Amended Judgment entered on

January 26, 1998, in the Huttinger case is to be considered a

final judgment, and the Court finds pursuant to Rule 54(b)

there to be no just reason for delay of its appeal. The Fennern

case is certified for interlocutory appeal under 28 U.S.C. §

1292(b).

IT IS FURTHER ORDERED, that this case shall be,

and the same is hereby, STAYED until the Ninth Circuit

determines whether to accept the interlocutory appeal.

Dated this 13th day of May, 1998.

s/ B. Lynn Winmill

B. LYNN WINMILL

UNITED STATES DISTRICT

COURT

27a

APPENDIX D — MEMORANDUM DECISION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO DATED AND

FILED JANUARY 20, 1998

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Civil No. 95-0121-E-BLW

JAMES FENNERN AND DELORES FENNERN,

husband and wife,

Plaintiffs,

MOTEL 6 OPERATING L.P., and

MOTEL 6 G.P., INC.,

Defendants.

ART HUTTINGER AND DONNA HUTTINGER,

husband and wife,

Plaintiffs,

Vv.

MOTEL 6 OPERATING L.P., and

MOTEL 6 G.P., INC.,

Defendants.

28a

Appendix D

MEMORANDUM DECISION AND ORDER

The Court has before it Defendants’ motion for judgment

as a matter of law or, in the alternative, for a new trial. The

Court heard oral argument on the alternative motions on

September 15, 1997, and they are now at issue. At the

conclusion of oral argument, the Court took the alternative

motions under advisement, and now issues the following

decision. As to the Huttinger claim, the Court will grant

Motel 6’s motion for judgment as a matter of law. As

provided by Rule 50(c)(1), the Court also determines that

the alternative motion for new trial should be granted if the

Court's decision entering judgment as a matter of law for

Motel 6 on the Huttinger claim 1s vacated or reversed on

appeal. As to the Fennern claims, the Court denies Motel

6's motion for judgment as a matter of law as to the Fennern’s

basic ADEA and IHRA claim, but grants it as to the jury’s

finding of willfulness and award of liquidated damages.

However, the Court grants Motel 6’s motion for a new trial

as to the Fennern’s basic ADEA and IHRA claim, and

determines, as provided by Rule 50(c)(1), that the alternative

motion for new trial on the issues of willfulness and

liquidated damages should be granted if the Court's decision

entering judgment as a matter of law for Motel 6 on those

claims is vacated or reversed on appeal. Finally, the Court

concludes that the Plaintiffs’ motion for attorney fees is

rendered moot by the Court's decision vacating the

judgments entered in favor of Plaintiffs. This Memorandum

Decision will explain the Court's reasoning after reviewing

the background o* this litigation.

29a

Appendix D

LITIGATION BACKGROUND

Plaintiffs James and Delores Fennern (“the Fennerns”’)

managed the Motel 6 establishment in Idaho Falls, Idaho, as

a husband-and-wife team for several months until their

discharge on January 18, 1994. They had over 10 years of

experience managing other Motel 6 establishments.

Similarly, Plaintiffs Art and Donna Huttinger (“the

Huttingers”) managed Motel 6’s Pocatello, Idaho,

establishment for several years until their discharge on June

2, 1993. Both the Fennerns and the Huttingers were

discharged shortly after their returns from vacation, in part

as a result of investigations into their performance and

conduct as motel managers performed by Motel 6 officials

during those vacations. In both situations, the wives were

regarded as the “key” employees and were compensated

accordingly, while the husbands were minimum-wage

employees. Both the Fennerns and the Huttingers were

replaced as managers by somewhat younger and less

experienced husband-and-wife teams.

The Fennerns and the Huttingers brought separate

actions against Defendants Motel 6 Operating L.P. and Motel

6 G.P., Inc. (“Motel 6”), alleging that their discharges were

motivated by age discrimination. The Fennerns’ complaint

asserted claims under the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. §§ 621 ef seq, and the Idaho

Human Rights Act (“IHRA”), along with other claims that

did not survive summary judgment. The Huttingers brought

a claim pursuant to the IHRA, but were apparently foreclosed

from pursuing an ADEA claim because they did not timely

file their grievance with the Equal Employment Opportunity

30a

Appendix D

Commission. The Huttingers’ complaint also included other

claims that were dismissed on summary judgment. The Court

denied summary judgment on the age discrimination claims,

largely because the plaintiffs presented some evidence of a

pattern and practice of age discrimination by Motel 6 in its

employment decisions, including evidence that Motel 6

‘wished to project a more youthful image and tailored its

employment practices accordingly. Partly in anticipation of

this evidence, the Court consolidated the separate actions

for trial on February 18, 1997. However, on the morning of

trial, the plaintiffs abandoned any attempt to put on such

pattern-and-practice evidence.

After a 10-day trial, the jury returned verdicts in favor

of both the Fennerns and the Huttingers, finding that age

was a motivating factor in Motel 6’s decision to discharge

each of them. Moreover, the jury found that Motel 6 acted

“willfully” in discriminating against both the Fermerns and

the Huttingers. The Court entered judgments on the jury

verdicts, which awarded the Fennerns front pay and back

pay, as well as liquidated damages under the ADEA, and

awarded the Huttingers front pay and back pay, as well as

punitive damages under the IHRA. The Fennerns and_the

Huttingers subsequently moved for an award of attorney fees,

and Motel 6 moved for judgment as a matter of law or, in

the alternative, for a new trial on both actions.

The following table sets forth the ages of the Fennerns

and the Huttingers at the time of discharge, the ages of their

replacements at that time, and the number of years by which

the plaintiffs’ ages exceeded the ages of their replacements:

3la

Appendix D

Age | Replacement’s ;

Name (years) Age Differential

Delores Fennern 58 49 9

Jim Fennern 60 35 25

Donna Huttinger 55 43 12

Art Huttinger 68 45 23

As the table indicates, Delores Fennern and Donna Huttinger

were approximately 10 years older than their replacements,

but their husbands were more than 20 years older than their

replacements.

MOTION FOR JUDGMENT AS A MATTER OF LAW

Standard Applicable to Motions for Judgment

as a Matter of Law

By its renewed motion for judgment as a matter of law

pursuant to Rule 50(b) of the Federal Rules of Civil

Procedure, Motel 6 requests the Court to reverse the jury’s

verdicts in favor of both the Fennerns and the Huttingers. A

jury verdict may be reversed if it is not supported by

substantial evidence. See Neibel v. TransWorld Assurance

Co., 108 F.3d 1123, 1128 (9th Cir. 1997). “Substantial

evidence” is admissible evidence that reasonable minds

might accept as adequate to support a conclusion, even if it

is possible to draw multiple, inconsistent conclusions from

the evidence. See id. Thus, judgment as a matter of law in

favor of Motel 6 is proper only if the evidence, construed in

32a

Appendix D

the light most favorable to the nonmoving party, permits only

‘one reasonable conclusion, and that conclusion is contrary

to the one reached by the jury.' See Forrett v. Richardson,

112 F.3d 416, 419 (9th Cir. 1997).

The parties, in their briefing, disagreed as to the extent

and nature of the evidence that the Court may consider in-

ruling on Motel 6’s motion for judgment as a matter of law.

Without entering that fray, the Court finds it sufficient to

state that in deciding whether the evidence presented at trial

is sufficient to withstand a Rule 50(b) motion, the Court is

not free to weigh the evidence or pass on the credibility of

witnesses. See 9A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2524 (2d ed. 1994).

Instead, it must view the evidence is a light most favorable

to the plaintiffs and give the plaintiffs the benefit of all

reasonable inferences that may be drawn from the evidence.

See id. On the other hand, the jury is not free to disregard

uncontradicted and unimpeached evidence from disinterested

witnesses, and such evidence will be considered by the Court

in ruling on Motel 6’s motion for judgment as a matter of

law.’ See id. § 2527.

1. The standard for granting judgment as a matter of law is

equivalent to that for granting summary judgment. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

2. Although the propriety of considering such evidence in this

context 1s not openly sanctioned by Ninth Circuit case law, the Court

believes that doing so 1s not inconsistent with the Ninth Circuit's

admonition to trial judges to avoid weighing the evidence and

assessing its credibility. Since juries are not endowed with the power

to reyect such evidence, they must accept it as true. Rendering trial

(Cont'd)

33a

Appendix D

The Burden-Shifting Analysis

Because the Fennerns’ and the Huttingers’ cases are

based upon claims of disparate treatment, they are analyzed

under the McDonnell-Douglas burden-shifting analysis.’ See

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

Under this analysis, the Fennerns and the Huttingers bear

the burden of making out prima facie cases of discrimination,

which create a presumption of unlawful discrimination. See

Id. A prima facie case of age discrimination requires the

plaintiffs to show that they were (1) members of the protected

class (aged 40-70), (2) performing their jobs in a satisfactory

manner, (3) discharged, and (4) replaced by substantially

younger employees with equal or inferior qualifications. See

Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th

Cir. 1997). Here, the Fennerns and the Huttingers

unquestionably met the first and third requirements. Motel

6 strenuously contests that the second requirement was met,

and the plaintiffs’ showing on the fourth requirement was

less than overwhelming.‘

(Cont'd)

courts powerless to consider, in the context of a motion for judgment

as a matter of law, evidence that the jury must accept as true would

not only be incongruous, but would have the effect of voiding a

desirable check on jury discretion.

3. Although St. Mary’s involved a Title VII racial

discrimination claim, the burden-shifting analysis undertaken in that

case applies to both ADEA claims and IHRA claims as well. See

Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994).

4. Delores Fennern and Donna Huttinger were the “key”

employees, and their replacements were only about 10 years younger

(Cont'd)

34a

Appendix D

Assuming that the Fennerns and the Huttingers

established prima facie cases of age discrimination, the

burden shifted to Motel 6 to produce evidence that it had

legitimate, nondiscriminatory reasons for discharging them.

See Nidds, 113 F.3d at 916. Motel 6 presented multiple

nondiscriminatory reasons for doing so. With respect to the

Fennerns, Motel 6 produced evidence that it discharged them

for the following reasons, among others: (1) they failed a

motel inspection; (2) they improperly checked employment

references; and (3) they left for vacation with Room 114 at

their motel “down” (i.e. unrentable). Motel 6 produced

evidence that it terminated the Huttingers for the following

reasons: (1) they implemented a desk-clerk policy that

discriminated against prospective Native American guests;

(2) they violated Motel 6’s safety and security policies; and

(3) there were numerous employee complaints about the

Huttinger’s performance as managers, including complaints

that the Huttingers had employees work on their private

motor home on Motel 6’s time.

The burden of production having been met, the

presumption of unlawful discrimination vanished, and the

plaintiffs bore the ultimate burden of persuading the jury

(Cont'd)

and were also members of the protected class. On the other hand,

their husbands’ replacements were more than 20 years younger. In

any event, the Court will assume the somewhat slight age difference

of the wives to be sufficient to meet the “substantially younger”

requirement, but will consider it as bearing on the reasonableness

of the inference of intentional discrimination drawn by the jury in

considering the alternative motion for a new trial in the Fennern’s

case.

35a

Appendix D

that they were victims of unlawful discrimination. See id.

This could have been accomplished by producing sufficient

evidence to allow the jury to conclude either (1) that the

true reason for their discharge was age discrimination or (2)

that Motel 6’s proffered nondiscriminatory reasons for their

discharge were false. See id. at 918. The former means of

proof involves traditional direct evidence of discriminatory

intent. The latter means of proof would satisfy the plaintiffs’

burden of persuasion because the jury’s disbelief of Motel

6’s stated reasons for discharge, coupled with the elements

of the prima facie case, would permit the jury to infer the

ultimate fact of intentional discrimination.* See St. Mary’s,

509 U.S. at 511; Nidds, 113 F.3d at 918 n. 2. Thus, in gauging

the adequacy of the plaintiffs’ evidence, the Court must

consider both the direct evidence of discriminatory intent

and the evidence supporting a conclusion that Motel 6’s

stated reasons for discharging the plaintiffs were pretextual.

5. This is not to say, however, that a jury is required to infer

intentional discrimination from its disbelief of an employer's

proffered reasons for the employee's discharge. For example, a weak

prima facie case may lead the jury to conclude that, although the

employer's proffered reasons were pretextual, age discrimination

was not the real reason for discharge. In the same light, the prima

facie case may be so weak in a particular case that the court may

conclude that it cannot be coupled with evidence of pretext to permit

the trier of fact to infer the ultimate fact of intentionai discrimination.

In such a case, evidence sufficient to support a finding of pretext

would not be sufficient to resist an employer’s Rule 50(b) motion.

However, that case is not presented here.

36a

Appendix D

Plaintiffs’ Direct Evidence of Discriminatory Intent

_ The Fennerns’ only “direct” evidence of Motel 6’s intent

to discriminate based upon age consisted of comments made

to them on two occasions by Doug Massman, @n Area

Manager for Motel 6, to the effect that he could replace them

with college students at a lower wage. Jim Fennern admitted

that Massman made the statements at least six months before

the Fennerns were discharged and prior to their transfer from

Motel 6’s Jackson, Wyoming, establishment to its Idaho Falls

establishment; neither of the Fennerns testified that a Motel

6 official ever commented directly about their ages. These

passing remarks are the nearest approximation of direct

evidence of age discrimination against the Fennerns by Motei

6. Such passing remarks have routinely been held to be

insufficient to establish age discrimination. See e.g., Nidds,

113 F.3d at 918-19; Nesbit v. Pepsico, Inc., 994 F.2d 703,

705 (9th Cir. 1993); Merrick v. Farmers Ins. Group, 892

F.2d 1434, 1438 (9th Cir. 1990). Moreover, Massman’s

comment-has no relevance here, since the Fennerns were

not replaced by college students, but by a wife and husband

aged 49 and 35, respectively.

The Huttingers failed to introduce even a passing

comment like Massman’s “college student” remark.

Accordingly, the Court holds that, as a matter of law, neither

the Fenne,*s nor the Huttingers introduced sufficient direct

evidence that Motel 6’s true reason for discharging them was

age discrimination to support a finding by the jury to that

effect. As such, the Court can allow the verdicts to stand

only if the plaintiffs adduced substantial evidence to support

a finding by the jury that Motel 6’s proffered reasons for

37a

Appendix D

discharge were false, and that such a finding, in combination

with the plaintiffs’ prima facie cases, reasonably gives rise

to an inference of unlawful discrimination.

Plaintiffs’ Evidence that the Proffered Reasons

for Discharge were Pretextual

For the jury to have reasonably disbelieved Motel 6’s

proffered reasons, the Fennerns and the Huttingers must have

introduced evidence sufficient to demonstrate that (1) the

proffered reasons are factually baseless; (2) the proffered

reasons were not the actual motivation for the discharge; or

(3) the proffered reasons were insufficient to motivate the

discharge.’® Wolf v. Buss (America) Inc., 77 F.3d 914, 919

(7th Cir. 1996). If the Fennerns and the Huttingers made at

least one of the three demonstrations required by Wolf for

any particular reason, the Court would be required, in the

context of a motion for judgment as a matter of law, to accept

the jury’s disbelief of that proffered reason. However, unless

the multiple reasons for discharge are “ ‘. . . so intertwined,

or the pretextual character of one of them so fishy and

suspicious ...’,” the plaintiffs must cast doubt on each

proffered reason. Wolf, 77 F.3d at 920 (holding that, under

the circumstances of the case, the plaintiff's success at

discrediting four of the six proffered reasons was not enough

6. Although Wolf is a Seventh Circuit decision and therefore

not binding, the Court adopts the Wolf framework for the purposes

of analysis of the demonstration necessary to properly discredit

Motel 6’s proffered reasons. The Court does so because Wolf applies

the burden-shifting analysis consistent with Ninth Circuit authority,

and it provides a comprehensive means by which to analyze the

issue of the jury’s disbelief of the proffered reasons.

38a

Appendix D

to carry his burden of proof) (quoting Russell v. Acme-Evans

Co., 51 F.3d 64, 70 (7th Cir. 1995)).

The only area in which the Fennern and the Huttinger

cases significantly differ is in Motel 6’s proffered reasons

for discharge. The Court will treat each case separately,

seeking to determine whether the plaintiffs introduced

substantial evidence from which a reasonable jury could have

concluded that Motel 6’s proffered reasons for discharge

were false and pretextual.’

7. As the plaintiffs suggest, in some cases effective

cross-examination of defense witnesses by itself may suffice to discredit

the proffered reasons. See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 255 n. 10 (1981). This was not such a case. The numerous

“inconsistencies, contradictions and outright falsehoods” in the

testimony of Massman and Scott Griffith, Motel 6’s Regional Vice

President that the plaintiffs claim to have brought out during

cross-examination of them (Pls.” Opp’n Br. at 11-20) do not strike at

the heart of their testimony. At most, they demonstrate Massman’s and

Griffith’s inability to perfectly recall a sequence of events that occurred

over three years prior to trial. For this reason, the Court finds it

unnecessary to examine each such inconsistency. Similarly, the plaintiffs

argue that the investigation into their managerial conduct performed

by Massman and Griffith was cursory, which gives rise to an inference

that the proffered reasons were pretextual. Although a cursory

investigation in certain cases can support such an inference, see

Rademaker v. Nebraska, 906 F.2d 1309, 1312 (8th Cir. 1990), the

evidence at trial simply does not bear out the plaintiffs’ assertion that

Massman and Griffith decided to discharge them after only a minimal

inquiry. The record is replete with evidence of motel inspections by

Massman and Griffith, of communications between Massman and

Griffith and the staff at the motels managed by the plaintiffs regarding

the plaintiffs’ managerial conduct and performance, and of discussion

between Massman and Griffith themselves analyzing the findings of

their investigation.

39a

Appendix D

The Fennern Case

As earlier stated, Motel 6 offered three principal reasons

for its discharge of the Fennerns: (1) they failed a motel

inspection; (2) they improperly checked employment

references; and (3) they left for vacation with Room 114 at

their motel “down” (i.e. unrentable).* These reasons were

set forth in a memorandum authored by Massman, which

was presented to the Fennerns upon their discharge. The

Court will consider each stated reason in turn.

Failed Motel Inspection

It was undisputed at trial that the Idaho Falls

establishment managed by the Fennerns failed an inspection

by Massman and Griffith on January 6, 1994, some 12 days

before their discharge. As earlier stated, the inspection

occurred while the Fennerns were on vacation. Both of the

Fennerns admitted that the motel was insufficiently clean to

meet Motel 6 standards. As such, this proffered reason for

discharge clearly has a basis in fact.

Moreover, there could be no reasonable doubt, based

upon the Fennerns’ own testimony, that failure to meet Motel

8. In addition to these reasons, Motel 6 proffered three

additional reasons for the discharge, which arose or were discovered

by Motel 6 before the Fennerns were discharged but, after the

decision to discharge them had been made. Motei 6 considered these

additional reasons to be less weighty. Because they arose after Motel

6 made the decision to discharge the Fennerns, the Court will not

consider these additional reasons in ruling on Motel 6’s Rule 50(b)

motion.

40a

Appendix D

6’s cleanliness standards amounted to grounds for discharge.

Thus, the jury could only have reasonably disbelieved this

proffered reason by concluding that it was not one of Motel

6’s actual reasons for discharge, but was instead a pretext

used by Motel 6 to disguise some other motive.

The Fennerns took over management of the Idaho Falls

establishment some six months prior to their discharge. At

that time, the motel was, by all accounts, filthy. The Fennerns

testified at trial that it was impossible to meet Motel 6’s

cleanliness standards within six months and that they had

_made reasonable progress toward doing so. They also

testified that Motel 6 had given them inadequate support to

complete the task. In support of these assertions, the Fennerns

adduced the testimony of Louis Turman and Chery! Mower,

two of their subordinates at the Idaho Falls establishment.

Turman testified that the supplies given the Fennerns by

Motel 6 were inadequate to complete the task. Mower

testified that the motel’s rooms could not be deep-cleaned at

the beginning of the Fennerns’ management tenure because

the motel was at full occupancy during that summer.

Thus, the evidence at trial, although disputed, was

sufficient to support a finding by the jury that Motel 6

provided the Fennerns with inadequate supplies and

insufficient tirme to bring the Idaho Falls establishment into

compliance with its cleanliness standards. From such a

finding, a possible inference was that Motel 6 was attempting

to manufacture a performance deficiency to justify a decision

to discharge the Fennerns and to disguise some other motive

for doing so. Viewing the evidence is a light most favorable

to the Fennerns and giving them the benefit of all reasonable

4la

Appendix -D

inferences that may be drawn from the evidence, the jury

could have reasonably concluded that Motel 6 did not

discharge the Fennerns for failing a motel inspection, but

used that as a pretext to fire them for some other unstated

reason.

Improper Checking of References

Motel 6 also claimed that it discharged the Fennerns

because Delores Fennern failed to properly check

employment references prior to hiring a desk clerk, Beth

Sutherlin. Sutherlin was hired by the Fennerns on December

17, 1993, three days before the Fennerns left for the vacation

during which Massman and Griffith conducted the motel

inspection. Delores Fennern admitted that, according to

Motel 6 policy, she was required to verify two positive

empioyment references prior to hiring a new employee.

The Fennerns admitted that Sutherlin had been

previously employed by Motel 6’s Idaho Falls establishment

the year before her hiring by them, and that her personnel

file indicated that she had been fired for excessive

absenteeism. Delores Fennern testified that such a notation

in Sutherlin’s file meant little her because absenteeism was

a common problem among Motel 6 employees. However true

that statement may be, it does not demonstrate compliance

with Motel 6’s reference-checking policy — Sutherlin was

fired by Motel 6 for having a poor performance record. Motel

6, therefore, could not possibly have been a “positive”

employment reference. Moreover, Franci McLaws,

Sutherlin’s former manager at Motel 6, would not have

42a

Appendix D

recommended rehiring Sutherlin had she been contacted by

the Fennerns, because she believed Sutherlin to be a thief.”

It was also undisputed at trial that Sutherlin’s most recent

employer, Melaleuca International, an Idaho Falls-based

business, had also fired Sutherlin for excessive absenteeism.

Delores Fennern testified to having knowledge of the reason

Melaleuca fired Sutherlin.

By all accounts, the two references “checked” by the

Fennerns were Motel 6 and Melaleuca International. Motel

6’s policy undisputedly required verification of two positive

employment references, not merely that a prospective hire

had held two previous jobs at some point in her life. The

Fennerns introduced insufficient evidence that they properly

checked Sutherlin’s references, especially given the

undisputed evidence that Sutherlin had been fired by the two

references “checked” by Delores Fennern for excessive

absenteeism. Thus, the trial record, construed in a light most

favorable to the Fennerns, establishes that Motel 6 had an

adequate factual basis for concluding that the Fennerns did

not properly check Sutherlin’s employment references.

The Fennerns’ failure to check Sutherlin’s references

proved damaging to the Idaho Falls establishment. Marge

9. There was testimony from the Fennerns that they believed

Franci McLaws to be mentally ill. However, this opimon about

McLaws’ mental health would not excuse a decision not to comply

with Motel 6's policy that no job applicant be hired without checking

references from their prior employers. Moreover, the Fennerns

presented no evidence that they attempted to contact Willard

McLaws, who co-managed the Idaho Falls establishment with Franc:

McLaws. :

43a

Appendix D

Geiger, the relief manager during the Fennerns’ vacation,

testified that she caught Sutherlin stealing from Motel 6 on

two occasions, both within 10 days after her hiring.'® This

evidence was unrefuted by the Fennerns. On the other hand,

the evidence presented by the Fennerns suggested that many

Motel 6 employees were hired without adequate references

and with marginal backgrounds. Additionally, the negative

references that Sutherlin’s former employers would have

given related to absenteeism rather than dishonesty or theft.

Accordingly, if the evidence is viewed in a light most

favorable to the Fennerns, and they are given the benefit of

all reasonable inferences that may be drawn therefrom, one

must conclude that the jury could have reasonably found that

Motel 6 did not consider the improper checking of references

to be serious enough to justify discharging the Fennerns.

For the same reasons, the jury could have reasonably

concluded that the failure to check Sutherlin’s references

was not the actual reason for the Fennerns’ termination, but

a pretext for some other unstated reason.

Leaving Room 114 “Down’

Motel 6 also indicated that the Fennerns were fired

because they left for vacation with Room 114 in unrentable

condition. Delores Fennern and Jim Geiger'' testified that

Motel 6's policy against “down” rooms was very strict.

Delores Fennern herself testified that Motel 6 would not

10. Marge Geiger no longer worked for Motel 6 at the time of

trial and was therefore a disinterested witness.

11. Jum Geiger had left Motel 6's employ by the time of trial

and was therefore a disinterested witness.

44a

Appendix D

tolerate down rooms and that managers were required to

return a down room to rentable condition as soon as possible.

Given this testimony, the jury could not have concluded that

Motel 6 perceived that having “down” rooms in violation of

Motel 6 policy was insufficient reason to discharge a

manager. '?

The evidence at trial was undisputed that, when the

Fennerns left for vacation, Room 114 was being used to store

boxed handicapped toilets and other supplies. It was also

undisputed that relief managers Jim and Marge Geiger, upon

discovering that Room 114 was being used for storage,

informed Massman of that fact, and removed the items being

stored on or about January 3, 1994.

However, the Fennerns testified that Room 114 was not

truly “down” because the items could be easily removed,

the carpet vacuumed, and the room would be ready to return

to service. They also testified that both Massman and Bob

Patrick, a ‘fotel 6 Regional Maintenance Engineer, were

aware that Room 114 was being used for storage and had

given them permission to do so. Patrick admitted to having

given them permission to use Room 114 for storage, at least

for a short-period of time. Further, Louis Turman, who did

12. The undisputed occupancy reports covering the period of

the Fennerns’ vacation indicate that the Idaho Falls establishment

had vacancies every day except January 7, 1994. Since the Geigers

had restored Room 114’s rentability by that date, it appears that

Motel 6 did not lose revenue because the Fennerns left for vacation

with Room 114 down. However, the fact that the motel was at its

capacity on that date indicates that leaving Room 114 down had

potential loss-of-revenue consequences for Motel 6.

45a

Appendix D

most of the maintenance work at the motel, testified that

Jim Fennern instructed him to remove the items stored in

Room 114 so that it could be rented if that became necessary.

As such, the Fennerns adduced substantial evidence that

Room 114 was not unrentable and that Motel 6 condoned

the Fennerns’ use of it to store the handicapped toilets in

any event. Again, if the jury viewed the evidence in a light

most favorable to the Fennerns and gave them the benefit of

all reasonable inferences that could be drawn therefrom, they

could have concluded that Motel 6 lacked an adequate factual

basis for discharging the Fennerns on account of the

condition of Room 114.

The same evidence which provides a basis for the jury

to conclude that there was no factual basis for relying upon

the condition of Room 114 as justification for the Fennern’s

discharge would also support a jury’s conclusion that this

breach of Motel 6’s policies was not sufficient to justify

termination of a motel manager. The Fennerns’ evidence that

Massman and Patrick knew and acquiesced in the Fennerns’

conduct is certainly sufficient to justify a jury’s finding that

leaving Room 114 ina “down” condition, was not sufficiently

egregious to justify the Fennerns’ termination. It necessarily

follows that the jury could also have concluded that this

stated reason for termination was pretextual.

The Huttinger Case

As earlier stated, Motel 6 proffered three main reasons

for its discharge of the Huttingers: (1) they implemented a

desk-clerk policy that discriminated against prospective

Native American guests; (2) they violated Motel 6’s safety

46a

Appendix D

and security policies; and (3) they caused numerous

employees to complain about their performance as managers,

including by having Motel 6 employees work on their private

motor home on Motel 6’s time. Motel 6 presented these

reasons to the Huttingers at a “termination meeting” held to

effect and to explain their discharge. Among them, the first

is perhaps the most significant.

Discrimination Against Prospective

Native American Guests"

Aileen Malone, Donna Huttinger’s replacement and part

of the relief management team during the Huttingers’

vacation, testified at trial that one of the desk clerks on duty

during the Huttingers’ vacation woke her and her husband

at night to obtain their approval of prospective Native

American guests, pursuant to a policy initiated by the

Huttingers. Another desk clerk, Teresa Jenson, testified that

the Huttingers instructed her not to rent rooms to Native

Americans without their prior approval and that she was

reprimanded for renting rooms to Native Americans without

doing so.

13. The Court notes that Motel 6 also purported to have

discharged the Huttingers for discriminating against localiy-residing

prospective guests on much the same basis as it purports to have

discharged them for discriminating against Native Americans.

Because the issue of discrimination against “locals” is largely

subsumed by the issue of discrimination against Native Americans

and was regarded by the parties to some degree as a less serious

form of discrimination, the Court will not separately address the

“locals” issue.

47a

Appendix D

The Huttingers admitted to authoring desk-clerk

memoranda that instructed desk clerks to check the

identification of prospective Native American guests more

closely than that of other prospective guests.'* One of those

memoranda was in use in the late 1980s and into 1990, and

specifically referred to “people who are indians [sic] or look

questionable.” Donna Huttinger testified that a Motel 6 Area

Manager that preceded Massman, Bob Williams, instructed

the Huttingers to cease using it in late 1990. She testified

that shortly thereafter the Huttingers rewrote the

memorandum to be more “politically correct,” put the

rewritten version in effect, and kept it in effect until their

discharge.'® Donna Huttinger testified, somewhat

equivocally, that the memorandum that specifically referred

to “indians” ceased to be used at that time and was not in

14. Neither Malone nor Jenson remained Motel 6 employees

at the time of trial and were, therefore, disinterested witnesses.

Moreover, the Huttingers did not retake the stand to rebut their

testimony. As will be discussed shortly, the Huttingers’ testimony

on the guest-discrimination issue was at times equivocal and at times

inculpatory. Even if they had unequivocally denied both once

discriminating against Native Americans and continuing in their

discriminatory policies, the Court would conclude that such denials

do not constitute a sufficiently head-on contradiction of the testimony

of Malone and Jenson to preclude the Court from considering it in

deciding Motel 6’s motion for judgment as a matter of law. To

preclude such consideration, the Huttingers were require” to

contradict the specific incidents related by Malone and Jenson — it

was not enough merely to offer a blanket denial that they had

abandoned their discriminatory practices prior to their discharge.

15. Donna Huttinger testified that she never sought Williams’s

approval of the rewritten version.

48a

Appendix D

use in 1993. This equivocal testimony was flatly contradicted

by Jenson, who did not begin working at Motel 6 until one

month prior to the Huttingers’ discharge. Jenson testified

that in that time frame, the Huttingers personally instructed

her to comply with the policies stated in both memoranda,

that she was reprimanded on two occastons for renting rooms

to Native American guests without doing so, and that the

Huttingers threatened to fire her if her noncompliance with

the memoranda continued. Thus, this proffered reason clearly

had a basis in fact.

Donna Huttinger testified that she retained a copy of the

memorandum that specifically referred to “indians” in her

files, despite the fact that Williams had warned her not to

use it. She testified that the copy could only have come into

possession of Motel 6 by someone searching her files without

her permission, which she contends gives rise to an inference

that Motel 6 officials searched her files in an effort to unearth

something to support a decision to discharge to her. This

inference is unreasonable, and\contradicts the sworn and

uncontradicted testimony Geiger and Jenson that (1) copies

of the policy were kept in file folder marked “training desk

clerks,” (2) additional copies were located in Jenson’s

personnel file, and (3) it was Geiger, and not Massman or

some other member of Motel 6’s management, who

discovered the policy in the desk clerk training file and

forwarded it on to Massman.

The most compelling evidence that the policy was still

in effect at the time Motel 6 decided to discharge the

Huttingers is provided by the written"document itself. The

notation or signature “Teresa Jenson TJ” appears on the

49a

Appendix D

second page of the memorandum. As previously noted,

Jenson started working for the Huttingers approximately one

month prior to their termination. When confronted with this

inconsistency on cross examination, Donna Huttinger

indicated that the writing was in her handwriting, and that

she had no idea when the notation was written on the policy.

On redirect examination, counsel for the plaintiffs opted not

to explore the issue, and that was where it was left until

Geiger and Jenson took the stand during Motel 6’s case. At

that time, Aileen Geiger testified as to how she learned of

the Huttinger’s discriminatory policies, and Jenson testified

that she had been repeatedly beratéd by Donna Huttinger for

not following the Huttinger’s check-in policies, including

the policy which discriminated against Native Americans.

Jenson further testified that on one such occasion, Donna

Huttinger took the offensive policy out of the file, put a pen

in Jenson’s hand, grasped that hand and guided Jenson’s hand

as she wrote her name on the paper. This was apparently

done to stress that Jenson was like a child who could not

follow simple directions. In any event, Jenson testified that

the copy of the policy with her name on it was then put in

Jenson’s personnel file, where it was later discovered by

Geiger. Although they had the opportunity to retake the

witness stand and contradict this testimony, neither of the

Huttingers took the stand on rebuttal. Thus, Geiger’s and

Jenson’s testimony was left unrebutted and uncontradicted.

No reasonable jury could have found that the Huttinger’s

discrimination policy had been abandoned in 1990, in the

face of the disinterested and uncontradicted testimony of

Aileen Malone and Teresa Jenson, the presence of the written

policy in the Huttingers’ files in 1993, and the signature or

50a

Appendix D

notation indicating that it was shown to an employee less

than one month prior to the Huttingers’ termination.

The Huttingers introduced no evidence suggesting that

Motel 6 condoned racially discriminatory guest approval

policies. Quite to the contrary, Donna Huttinger testified that

a Motel 6 official ordered them to cease applying such

policies three years prior to their discharge. Thus, the jury

could not have reasonably concluded that Motel 6 would

not consider such discrimination serious enough to warrant

discharge.

Moreover, the jury could not have reasonably concluded

that Motel 6 did not in fact discharge the Huttingers in part

for this reason. The Huttingers’ policies with regard to

prospective Native American guests were flagrant violations

of the law and of Motel 6 policy. There is simply no evidence

in the trial record that Motel 6 used those violations as a

convenient facade to mask a discriminatory motive, nor is

there any apparent reason for it to have done so.

Safety and Security Policy Violations

At the termination meeting, Massman and Griffith also

explained to the Huttingers that their violations of Motel 6’s

safety and security policies in part accounted for their

discharge. Among these were violations of the “key control”

policy and of the policy regarding overgrown shrubs and

trees. At trial, Donna Huttinger admitted the existence of

some of the violations and testified that she was unsure of

the existence of others. Art Huttinger testified that Griffith,

after conducting an inspection of the premises, told him four

Sla

Appendix D

months prior to their discharge that their failure to utilize

“blue tags” was a violation of the “key control” policy. Art

Huttinger further testified that he was in possession of the

blue tags, but failed to utilize them. Jim and Aileen Malone,

the Huttingers’ replacements, corroborated several of the

violations.'®

The Huttingers’ evidence on the issue of the proffered

safety and security violations consisted largely of their own

testimony denying the importance of some of the violations,

attesting to the ease of remedying others, and denying the

existence of still others. In combination with their admissions

and the disinterested, unrefuted testimony of the Malones,

the jury could not have reasonably concluded that there was

no basis in fact for at least some of the violations.

Further, there was ample testimony from several sources

— including the Huttingers themselves — that Motel 6 took

its safety and security policies very seriously and that

violations of them constituted grounds for immediate

discharge. Jim Malone testified, and the Huttingers did not

contradict this testimony, that Massman told him to

immediately cure these violations upon replacing the

Huttingers. As such, the jury could not have reasonably

concluded that the safety and security violations were not

serious enough to Motel 6 to warrant the Huttingers’

discharge.

From these facts, it follows that the jury could not

reasonably have concluded that Motel 6 did not discharge

16. Jim Malone also had ceased working for Motel 6 at the

time of trial.

52a

Appendix D

the Huttingers in part for these violations. Motel 6 need not

create a pretext to disguise another motive in a situation in

which it had, beyond any reasonable dispute, ample cause

for dissatisfaction with the Huttingers’ job performance.

Widespread Employee Complaints

Finally, Motel 6 officials informed the Huttingers at the

termination meeting that one of the reasons for their

discharge was that there were widespread employee

complaints about the Huttingers. Aileen Malone testified that,

shortly after the Malones began working as relief managers

while the Huttingers were on vacation, several Motel 6

employees submitted oral and written complaints about the

Huttingers to the Malones. She further testified that they

passed on the complaints to Massman on or before May 28,

1993, which was the date on which Massman met with

Griffith to recommend the Huttingers’ discharge. As such,

the proffered reason had a basis in fact.

The Huttingers did not dispute the accuracy of the

complaints at trial. Art Huttinger admitted that he ordered

employees of the Pocatello establishment to work on the

Huttingers’ personal moter home. Donna Huttinger admitted

that doing so violated Motel 6 policy. Further, Joe Demarest,

one of the Huttingers’ witnesses, testified that this violation

constituted grounds for discharge.

The Huttingers’ only real response was that the

complaints were not sufficiently serious to jeopardize their

jobs. In support of this assertion, they cite Massman’s

testimony that he did not need evidence of employee

53a

Appendix D

complaints to justify discharging the Huttingers in light of

the seriousness of the other reasons for discharge. However,

the fact that other deficiencies in the Huttingers’ performance

were more serious does not support an inference that

employee complaints was not a sufficient justification for

the Huttingers’ discharge.

Given the undisputed fact that the complaints were

spontaneously generated by the Motel 6 employees in the

Huttingers’ absence, the jury could not have reasonably

concluded that Motel 6 concocted this problem as a facade

to hide some other motive for discharging the Huttingers.

This is particularly true when these complaints are considered

in conjunction with the Huttingers’ problems with Motel 6’s

discrimination and security policies.

In summary, the jury could not have reasonably

concluded in the face of evidence from disinterested

witnesses which supported Motel 6’s proffered reasons for

termination and the Huttingers’ inability to contradict or

rebut those stated reasons, that any of Motel 6’s reasons for

discharge were pretextual.'’ As earlier stated, unless the

17. The Court notes that the jury could not have reasonably

disbelieved the proffered reasons in the Huttinger case based upon

similarities between the manner in which Massman and Griffith went

about discharging the Huttingers and the Fennerns. Although there

were certain similarities (e.g., the temporal proximity of the

discharges to the plaintiffs’ vacations), those similarities do not rebut

the existence of the serious conduct violations committed by the

Huttingers. Moreover, at approximately the time Massman and

Griffith discharged the Huttingers, Massman and Griffith granted

(Cont'd)

54a

Appendix D

multiple proffered reasons for discharge are intertwined, or

one of them is “fishy,” the plaintiffs must cast doubt on each

proffered reason. See Wolf, 77 F.3d at 920. The Court

concludes that the multiple proffered reasons are not so

intertwined, nor is any one of them so suspicious, that the

Huttingers should be absolved from their obligation to cast

doubt on each reason. Each proffered reason has an

independent basis in fact, and none is so farfetched as to

give the impression that it must have been manufactured for

the purpose of hiding an unspoken motive. Even if a

reasonable jury could have concluded that the Huttingers

were able to cast doubt on one of the proffered reasons, no

reasonable jury could have concluded that they discredited

all of them. For this reason, Motel 6 is entitled to judgment

as a matter of law on the Huttinger case.

The Plaintiffs are Not Entitled to Liquidated Damages'*

A willful violation of the ADEA gives rise to liquidated

damages, see 29 U.S.C. § 626(b), much as a willful violation

(Cont'd)

the Fennerns a transfer from a larger motel to the smaller (and

therefore more manageable) Idaho Falls establishment. If Massman

and Griffith held the same motivation in each case, they would have

discharged the Fennerns at that time instead of granting them a

transfer.

18. The Court declines to foreclose Motel 6 from pursuing

judgment as a matter of law on the “willfulness” issue for the

technical reason suggested by the plaintiffs — that Motel 6 did not

move for judgment as a matter of law on that particular issue at trial

(Cont'd)

55a

Appendix D

of the IHRA gives rise to punitive damages.'® See I.C.

§ 67-5908(3)(e). The jury found that Motel 6 willfully

discriminated against both the Fennerns and the Huttingers,

which resulted in awards of liquidated damages to the

Fennerns and of punitive damages to the Huttingers. An

ADEA violation is “willful” “if the employer knew or showed

reckless disregard for the matter of whether its conduct was

prohibited by the ADEA.” Hazen Paper, 507 U.S. at 614.

This standard applies whether the plaintiffs prove their case

by direct or by circumstantial evidence. See id. Of course,

some, but not all, ADEA violations give rise to liquidated

damages. See id.

Although the plaintiffs need not prove the employer’s

conduct to have been outrageous, or even need provide direct

evidence of the employer’s motivation, a violation is not

wiliful merely because the employer knew that the ADEA

was “in the picture.” Jd. at 614-15. Otherwise, the distinction

between willful and non-willful violations would be

(Cont'd)

as required by Rule 50(a)(2). Before submission of the case to the

jury, Motel 6 moved for judgment as a matter of law as to whether

it committed a “basic” (i.e. non-willful) violation of the ADEA, but

did not specifically move for judgment as a matter of law as to the

“willfulness” issue. Clearly, if Motel 6 did not commit a basic ADEA

violation, it could not have committed a willful one. For that reason,

_ the Court will not interpret Rule 50(a)(2) so literally as the plaintiffs

suggest.

19. As in all other parts of this Memorandum Decision, the

Court considers the ADEA and the IHRA to apply coextensively in

this regard. Accordingly, any reference to the ADEA applies to the

IHRA with equal force.

56a

Appendix D

obliterated. See id. In attempting to ensure that the distinction

between the two is meaningful, the Ninth Circuit recently

held that “[flor the employer to be in willful violation of the

ADEA it must do more than act unreasonably; it must act

with knowing or reckless disregard of the ADEA’s

requirements. Baker v. Delta Air Lines, Inc., 6 F.3d 632,

644 (9th Cir. 1993). As stated by the Seventh Circuit, to

show willfulness, the plaintiffs must show the employer’s

“intent to recklessly flaunt the ADEA’s requirements.”

Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216 (7th Cir.

1991).

If there is to be any meaningful distinction between

willful and non-willful violations, this is clearly a case in

which the plaintiffs have not proved willfulness. The

Fennerns and the Huttingers adduced no evidence that could

reasonably give rise to an inference that Massman and

Griffith discharged them while “recklessly flaunting the

ADEA’s requirements.” Certainly Massman and Griffith

were aware of the existence of the ADEA, but it is a quantum

leap from mere awareness of the ADEA to an intent to flaunt

it — especially where Motel 6 demonstrated that it had

legitimate concerns about the plaintiffs’ job performance and

where it replaced them with employees relatively near to

their ages and within the protected class.” The fact that

Massman and Griffith did not contact Motel 6’s human

20. Again, the Court notes that this goes only for the Fennern

and Huttinger wives, who were the high-salaried employees. The

husbands and their replacements were significantly more separated

in years. However, the husbands were minimum-wage employees

and, as such, were not nearly so responsible as were their wives for

the job-performance problems of concern to Motel 6.

57a

Appendix D

resources personnel prior to discharging the plaintiffs is

insignificant evidence of reckless disregard under the

circumstances. The Court is not persuaded that there was

any evidence to support the jury’s finding of willfulness.

MOTION FOR A NEW TRIAL

Remaining is Motel 6’s alternative motion for a new irial

pursuant to Rule 59. The Court has the discretion to grant a

new trial if “the verdict is contrary to the clear weight of the

evidence ... or to prevent ... a miscarriage of justice.”

Rattray v. City of National City, 51 F.3d 793, 800 (9th Cir.

1994). Unlike in the context of a motion for judgment as a

matter of law, the “existence of substantial evidence does

not ... prevent the court from granting a motion for a new

trial. . .” Landes Constr. Co., Inc. v. Royal Bank of Canada,

833 F.2d 1365, 1371 (9th Cir. 1987). The Court can “weigh

the evidence and assess the credibility of witnesses, and need

not view the evidence from the perspective most favorable

to the prevailing party.” /d. “If, having given full respect to

the jury’s findings, the judge on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed, it is to be expected that he will grant a new trial.”

Id.

Because of the Court’s extensive discussion of the

reasons for its decision to grant Motel 6’s Rule 50(b) motion,

it is not necessary to discuss in any detail Motel 6’s

alternative motion for a new trial in the Huttinger case.

Although Motel 6 dd offer evidence in support of its

proffered reasons for discharge that the Court found to be

credible, but could not consider in the context of a motion

58a

Appendix D

for judgment as a matter of law, the Court need not discuss

any such evidence because the evidence previously

considered is sufficient to leave the Court with the definite

and firm conviction that the jury mistakenly inferred age

discrimination against the Huttingers on the part of Motel 6.

Accordingly, pursuant to Rule 50(c)(1), the Court

conditionally grants a new trial in the Huttinger case to the

extent that the Court’s entry of judgment as a matter of law

in favor of Motel 6 does not survive appeal.

With regard to the Fennern case, the Court will grant

Motel 6’s motion for a new trial for a variety of reasons.

First, the Court has reviewed the evidence offered by Motel

6 in support of its stated reasons for discharge, but which

the Court was precluded from considering in deciding Motel

6’s Rule 50(b) motion, and concludes that the evidence was

credible and strongly indicates that a mistake was committed

by the jury in rendering its verdict. Second, the Court finds

that the jury incorrectly inferred the ultimate fact of age

discrimination. Finally, the Court concludes that Motel 6

was prejudiced in the Fennern case by the consolidation of

that case for trial with the Huttinger case.

As earlier established, there could be no reasonable doubt

based upon the evidence at trial that the Fennerns failed to |

meet Motel 6’s cleanliness standards?! and that Motel 6 took

its cleanliness standards seriously enough to discharge its

motel managers for failing to comply with them. However,

21. The Court notes that this evidence of poor performaiice by

the Fennerns as managers goes not only toward the reasonableness

of the jury’s disbelief of Motel 6’s proffered reasons for discharge,

but also toward the strength of the Fennerns’ prima facie case.

59a

Appendix D

the jury could have concluded that Motel 6 provided the

Fennerns with inadequate support and time to comply with

its cleanliness standards, and could have inferred from this

conclusion that Motel 6 used this as a pretext to hide some

other motive for discharging them.

Motel 6 brought forth convincing testimony to rebut the

Fennerns’ claim of inadequate support for their clean-up

effort and in support of its business decision to discharge

them for failing to meet the cleanliness standards. With

regard to the adequacy of support, Motel 6 introduced

purchase requisitions demonstrating that the Fennerns

received more supplies than they admitted to receiving.

Further, Delores Fennern admitted to having access to a

carpet shampooer, which she used for a time to clean four

rooms per day — had she done so long enough, the carpets

of the 80-room motel would have been cleaned within a

month. Finally, Loree Shearouse, Delores Fennern’s

replacement, testified that she was able to clean the motel

using the same supplies provided to the Fennerns.

More importantly, the testimony of Massman and

Griffith amply demonstrated that Motel 6 reasonably

believed that six months was an adequate period of time for

the Fennerns to meet Motel 6’s cleanliness standards,

especially since the Fennerns had more than 10 years of

experience managing other Motel 6 establishments and since

the Idaho Falls establishment had only 80 rooms, far fewer

than the Jackson Hole establishment from which the Fennerns

had transferred. At issue is not whether Motel 6 was correct

in believing that the Fennerns could have properly cleaned

the Idaho Falls establishment within six months. Instead,

60a

Appendix D

the issue is whether Motel 6 had a reasonable basis for that

belief. As a matter of logic, six months appears to be

sufficient time in which to clean an 80-room establishment;

at the leisurely rate of one room per day, the Fennerns could

have completed the task within three months. Further, Loree

_Shearouse testified that she was able to thoroughly clean

the motel in less than six months, despite her lack of

_managerial experience. “Granny” Seelke, a subordinate of

both the Fennerns and the Shearouses, testified that the

Shearouses kept the motel much cleaner than did the

Fennerns, in part because of Loree Shearouse’s active style

of management.

The Court concludes, on the strength of that evidence,

that the jury was mistaken in disbelieving that Motel 6

discharged the Fennerns in part for failing the motel

inspection. The Fennerns’ failure to comply with Motel 6’s

cleanliness standards was clearly Motel 6’s primary concern

and was unquestionably sufficient in itself to justify their

discharge. Massman and Griffith discovered the improper

checking of references and the condition of Room 114 in

the cays surrounding the motel inspection that revealed the

serious violations of Motel 6’s cleanliness standards. The

reasonable inference to be drawn was that Motel 6 considered

these other reasons for discharge to be serious enough to

bolster its main reason — the Fennerns’ failure to comply

with the cleanliness standards. There is nothing suspicious

in Motel 6’s decision to state all of its reasons for discharge,

even if one of them was the overriding concern and was

sufficient in itself.

6la

Appendix D

Moreover, even if the Fennerns successfully discredited

all of Motel 6’s proffered reasons except for their failure to

comply with Motel 6’s cleanliness standards, their failure to

discredit that principle reason is enough to foreclose the

reasonableness of any belief that they were not among Motel

6’s actual reasons for discharge. As earlier stated, unless the _

multiple proffered reasons for discharge are intertwined, or

one of them is inherently suspicious, ihe plaintiffs must cast

doubi on each proffered reason. See Wolf, 77 F.3d at 920.

As in the Huttinger case, the Court concludes that the

multiple proffered reasons are not so intertwined, nor is any

one of them so suspicious, that the Fennerns should be

excused from their obligation to cast doubt on each reason.

Each proffered reason has a completely independent basis

in fact, and none is so farfetched as to give the impression

that it was manufactured in an effort to disguise an unspoken

motive.

It is important to remember that this is an ADEA case

reasons for discharge need not be so unassailable as to

amount to “cause” for discharge. An employer is free to

replace employees with those it subjectively believes will

do a better job. See Turner v. North Am. Rubber, Inc., 979

F.2d 55, 60 (Sth Cir. 1992). Otherwise, employers “. . . ‘could

do nothing to correct unsatisfactory performance in senior

management, most of whom will always be within the

ADEA’s protection.’ ” Jd. (emphasis in original) (quoting

Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567

(Sth Cir. 1983)). Motel 6’s evidence strongly demonstrates

its unhappiness with the Fennerns’ clean-up efforts and its

subjective belief that the Shearouses would do a better job.

62a

Appendix D

Massman and Griffith simply took action to remove

managers thai they perceived to be under-performing.

Even if the Fennerns’ evidence of pretext were more

compelling, the Court concludes that the jury made a mistake

in inferring the ultimate fact of age discrimination from that

evidence. As previously indicated, Motel 6 replaced Delores

Fennern with a woman who was only nine years younger

and who was also in the protected class. Delores Fennern

bore the primary responsibility for the perceived performance

deficiencies as the highly-compensated half of the

management team. The inference of age discrimination is

quite weak where a 58-year old, with perhaps satisfactory

performance, has been replaced by a 49-year old. While such

a personnel change can constitute age discrimination, the

evidence that the proffered reasons for discharge constitute

a pretext for unlawful discrimination must be stronger than

in a case in which a 58-year old, with outstanding

performance, has been replaced by a 29-year old. The

Fennerns simply did not prove that age discrimination was

the “real reason” for their discharge, as they were required

to do by the Supreme Court in St. Mary’s and by the Ninth

Circuit’s implementation of the St. Mary’s decision.”

22. The Court recognizes that the Supreme Court’s decision

in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) and the

Ninth Circuit’s decision in Nidds v. Schindler Elevator Corporation,

113 F.3d 912 (9th Cir. 1997), suggest that the prima facie case,

coupled with evidence from which the jury could conclude that the

reasons for discharge were pretextual, may be sufficient to defeat

summary judgment or a Rule 50(b) motion. However, an alternative,

and better view, of those decisions is that the trial court can still

(Cont'd)

63a

Appendix D

Moreover, the Court firmly believes that Motel 6 was

severely prejudiced by the consolidation of the Fennern and

Huttinger cases for trial, in light of the plaintiffs’ failure to

put on pattern-and-practice evidence of age discrimination.

The Court would never have allowed the consolidation in

the absence of the plaintiffs’ representation that they would

base their case on such evidence. The Court assumed that

such pattern-and-practice evidence would necessarily lead

to evidence relating to the Fennerns’ termination being

presented during the Huttinger case, and vice-versa. For

reasons of judicial economy and the lack of prejudice to

Motel 6 in that setting, the Court permitted the joinder of

the two cases for trial.

However, without this evidence, the cases were

insufficiently similar to justify joinder. The similarities

regarding the age differentials of the plaintiffs and their

replacements, the temporal proximity of the firings, and the

fact that the firings occurred subsequent to the plaintiffs’

vacations pale by comparison to the substantial differences

in the reasons for discharge proffered by Motel 6. Without

pattern-and-practice evidence, the Court would not have

permitted the Huttingers to testify in the Fennern case, and

vice-versa. It appears, however, that the jury may well have

found a “pattern” in the two cases because of the relatively

~ (Cont'd)

assess whether that combination gives rise to a reasonable inference

of discrimination which would justify a jury in returning a verdict

for the party claiming discrimination. On the other hand, it seems

clear that the reasonableness of the jury’s inference of discrimination

may be properly assessed in the context of a Rule 59 motion for

new trial. :

64a

Appendix D

inconsequential similarities and rendered its verdict on that

basis.

Additionally, the Court precluded Motel 6 from offering

statistical evidence on its hiring and discharge patterns to

demonstrate a lack of statistical support for any practice of

age discrimination upon learning that the plaintiffs’ had

abandoned their pattern-and-practice argument. The Court

reasoned that the plaintiffs would be unfairly prejudiced by

such broad evidence of lack of discriminatory practices where

the plaintiffs would no longer attempt to demonstrate age

discrimination outside the context of their two particular

cases. The unforeseen effect of this ruling was to permit the

plaintiffs to argue a pattern and practice of age discrimination

based upon their two cases, but to disallow Motel 6 to rebut

that argument. Motel 6 was clearly prejudiced by this

unintended result.

In summary, the Court has the definite and firm

_ conviction that the jury mistakenly disregarded Motel 6’s

proffered reasons for discharging the Fennerns, that the jury

mistakenly inferred unlawful age discrimination on the part

of Motel 6, and that joinder of the two cases for trial

prejudiced Motel 6. Accordingly, the Court will grant a new

trial in the Fennern case as to whether Motel 6 committed a

basic violation of the ADEA. Pursuant to Rule 50(c)(1), the

Court will conditionally grant a new trial in the Fennern case

on the issue of whether Motel 6 willfully violated the ADEA

in the event that its entry of judgment as a matter of law in

favor of Motel 6 on that issue does not survive appeal.

65a

Appendix D

Finally, because the Court has decided either to grant

judgment as a matter of law in favor of Motel 6 or a new

trial with regard to all claims of both the Fennerns and the

Huttingers, the Court need not reach the issue of whether

the measure of damages awarded by the jury was justifiable.

Also, because the Court must vacate the jury’s verdicts in

favor of the plaintiffs, the plaintiffs’ motion for attorney fees

must be denied.

ORDER

In accordance with the views expressed in the

Memorandum Decision above,

NOW THEREFORE IT IS HEREBY ORDERED, that

Defendants’ motion for judgment as a matter of law (Docket

No. 227, part 1) shall be, and the same is hereby, GRANTED

IN PART and DENIED IN PART. Defendants are granted

judgment as a matter of law in the Huttinger case in its

entirety and in the Fennern case on the issue of whether

Defendants committed a willful violation of the ADEA.

IT IS FURTHER ORDERED, that Defendants’

alternative motion for a new trial (Docket No. 227, part 2)

shall be, and the same is hereby, GRANTED IN PART and

CONDITIONALLY GRANTED IN PART. Defendants are

granted a new trial in the Fenner case on the issue of whether

Defendants committed a basic violation of the ADEA.

Pursuant to Rule 50(c)(1), Defendants’ alternative motion

for a new trial in both the Fennern and Huttinger cases is

conditionally granted to the extent that its entry of judgment

as a matter of law does not survive appeal.

66a

Appendix D

IT IS FURTHER ORDERED, that the judgments entered

in favor of Plaintiffs (Docket Nos. 217 and 218) are hereby

VACATED. Pursuant to Rule 58, the Court will enter an

amended judgment in favor of Defendants in the Huttinger

case by means of a separate document in accordance with

this Memorandum Decision and Order.

IT IS FURTHER ORDERED, that Plaintiffs’ motion for

attorney fees (Docket No. 219) shall be, and the same is

hereby, rendered MOOT.

Dated this 20th day of January, 1998.

s/ B. Lynn Winmill

B. LYNN WINMILL

UNITED STATES DISTRICT

COURT

67a

APPENDIX E — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

DENYING PETITION FOR REHEARING DATED

AND FILED SEPTEMBER 2, 1999

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 98-35533

D.C. No. 95-CV-262

Art Huttinger, husband; and Donna Huttinger, wife

Plaintiffs — Appellants

Motel 6 Operating LP; Motel 6 GP, INC.,

Defendants — Appellees.

No. 98-35608

D.C. No. 95-CV-121

James Fennern, husband, and Delores Fennern, wife

Plaintiffs — Appellants

Vv.

Motel 6 Operating LP; Motel 6 GP INC.;

JOHN DOES, 1-4,

Defendants — Appellees.

68a

Appendix E

Before: B. FLETCHER, REINHARDT and THOMAS,

Circuit Judges

The panel has voted unanimously to deny the petition

for rehearing. Judges Reinhardt and Thomas voted to deny

the petition for rehearing en banc and Judge B. Fletcher so

recommended.

The full court has been advised of the petition for an

en banc rehearing, and no judge of the court has requested a

vote on the petition for rehearing en banc. Fed. R. App. P.

35(b).

The petition for rehearing is denied and the petition for

rehearing en banc is rejected.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.