# Petition for Writ of Certiorari — Motel 6 Operating L. P. v. Huttinger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1449%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 530 U.S. 1241 ## Text Ca 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, v. ART HUTTINGER and DONNA HUTTINGER, Respondents. MOTEL 6 OPERATING L.P. and ACCOR ECONOMY LODGING, INC., Petitioners, v. 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 i 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. il 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 Ls Sonn ea teak wk be Gk 0b h-oe$ «080 ll ee a aS has eon sale ceva a wes il 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 iv Contents Reasons for Granting the Writ ................. I. 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 14 18 19 20 20 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 ix 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 la 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 2 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 3 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 4 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). 5 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 6 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. Vi he ab ei pasha dae aia ee 7 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. 8 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. 9 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). 10 (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) 11 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. 12 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 \ 13 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”; 14 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 15 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. 16 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). 17 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. 18 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 19 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 20 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 21 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. 22 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 23 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. 24 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). LEE EIFS ERGO ES tet SDE RR Sie ca stg RRS RR FR te a TRIER RI nye ET BGM or Te Seg ASAE 25 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. 26 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 fa _ ¥ ' ia a . = Ms — . ue eS v weer APPENDIX la 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, V. MOTEL 6 OPERATING LP; MOTEL 6 GP INC.; JOHN DOES, 1-4, 5 Defendants — Appellees. 2a 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. 3a 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, 4a 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. Sa 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 6a 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. 7a 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 8a 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 9a 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, V. 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, v. 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 Huttinge [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1449%3A1. Public record. Not legal advice.