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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1149

## Text

me Court, vs
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No.00- @90 96 408 14mm
yirive OF TWe CLERK
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

163486 @ Counsel Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 + (800) 359-6859

°C ADA iP is tani i

i

QUESTIONS PRESENTED

1. Where this Court vacated the Ninth Circuit’s decision
in these two age-discrimination-in-employment cases and
remanded for further consideration in light of Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. mee i: eee
2097 (2000) was the Ninth Circuit correct on the remand in
reversing the trial court’s granting of judgment as a matter
of law and new trial where plaintiffs’ pretext evidence was
weak and there was no direct evidence 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 were substantial grounds 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. No publicly held company owns 10% or more
of the stock of either Petitioner.

iil

TABLE OF CONTENTS

Per ore y ire te ee i

Corporate Disclosure Statement Required by

De! ere ere eee ye errr ors oe il
po PPP PPT TT TUITE PT eee iil
Table of Cited Authorities ...............000.- vi
IEE 6 G55. 54 So vee evades sé 6ueeet ix
CE cdnwheGUisvecotudceevewens 7 is l
Statement of Jurisdiction ..............0.00005 l
Statutory Provisions Involved ................. l
i ci sche cadveseaeeeeeweds 2

Sip EL 0 dn ws cd ec ccctecedecedecese 2

TUNED GEGEN, occ ccccctvecccsccens 3

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

i ..Uiviessseeedewe os 5
or i ccc cebadaeetesaeess 9

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

iv

Contents

Reasons for Granting the Writ ................. 14

I. Ignoring This Court’s Directive In Reeves
That The Court Of Appeals Must Carefully
Consider The Probative Value Of The Proof
That The Employer’s Explanation Is False,
The Ninth Circuit For A Second Time Did
Not Address At All The Failure Of The >
Huttingers To Rebut Powerful Evidence
Showing That They Were Discriminating
Against Native Americans, And Also
Mischaracterized Undisputed Evidence
Supporting Motel 6’s Reasons For
Discharging The Fennerns And Huttingers.

cae SUED EA RARE EN SSO a Ce 14

A. Dee TM CORR. oi cn cccccecsies 16

ef SR eer ee oer 20

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 i
Substantial Ground For A Difference Of
RIES kod kak iuwaaenuseeaeus ieeieus 21 )

A. The District Court’s Order of |
RI oe ee 22 :

Vv

Contents
Page
B. The Court of Appeals Decision. ...... 23
C. The Court of Appeals Did Not Have
Jurisdiction to Hear the Fennerns’
Aappemh, ..cccvsccavuvess s¥atidesss 23
D. The Court’s Findings On Judicial
Economy and Party Fairness In Any
Event Do Not Satisfy The Stringent.
Requirements Under Section 1292(b).
Sbdbbs caeetteseskebs ened 25
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. .......... 26
Come ook ickctvcss tds 28

vi

TABLE OF CITED AUTHORITIES

Page
Cases:
Anderson v. Bessemer City, 470 U.S. 564 (1985) .. 26
Bullock v. Baptist Memorial Hospital, 917 F.2d 58
CO” Ob. TFGF) cickisicsstucesseeee ee 22, 24
Byrd v. Blue Ridge Rural Electric Cooperative, Inc.,
oe ee rere 18
Chesapeake & Ohio Ry Co. v. Martin, 283 U.S. 209
(3938) oie caccdcissaeceeses teen 17
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)
WETITITITTTitir ye Ti 25
DLC Management Corp. v. Town of Hyde Park,
163 F.3d 124 (2d Cir. 1998) ................. 18
Fisons, Ltd. v. United States, 458 F.2d 1241 (7 Cir.
EDUE) -ccccdsvadivcnsaewsde eto 25
Harris v. Secretary, United States Department of the
Army, 119 F.3d 1313 (8 Cir. 1997) .......... 18
In re Cement Antitrust Litigation, 673 F.2d 1020
( Cab. SUED siviicsacwseesat ee 23, 25

James v. New York Racing Association, _ F.3d
(2d Cir. 2000), 2000 WL 1752908 ........... 15

vii

Cited Authorities

Page

Katz v. Carte Blanche Corp., 496 F.2d 744 (3d Cir.
IOP cicccccccdcseccccdstsscksdsnsuecees 24

Lerner v. Atlantic Richfield Co., 690 F.2d 203
(Temp. Emer. Ct. of App. 1982) ............. 22, 24

Massey v. Blue Cross-Blue Shield of Illinois,
226 F.3d 922 (7® Cir. 2000) .............06-. 15

Massey v. Gulf Oil Corp., 508 F.2d 92 (5® Cir. 1975)
adcdecncdsbcncbidacnenvdadwestanveerrs 25

Nebel v. Avichal Enterprises, Inc., 125 F.R.D. 415
5 A rr rrrrrrrr Tr Tr re ree 25

Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333
SR ue Vivddeschvsccuuceesstweeetdsgarnee 17

Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. _, 120 S. Ct. 2097 (2000) ..........
Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000) 15

Shows v. Jamison Bedding, Inc., 671 F.2d 927
CPG GID ook abcess ceececccesinedesesei 25

Steele vy. Wiedmann Machine Company, 280 F.2d 380
CG CEE Sa ecdsonstuectisstegunsadesar 26

vill

Cited Authorities
Page
Stewart v. Adolph Coors Co., 217 F.3d 1285
EE ee cha eu tuwdkn a hesuceeee rs 16
Sulmeyer v. Coca Cola Company, 515 F.2d 835
aes PE 6 canes kN eaaneeskasdin ose ayaa 18
Taylor v. QHG of Springdale, Inc., 218 F.3d 898
SP ee ED A cducacussabesMaxerwadiciods 15, 16
Union Oil Co. of California v. John Brown E&C,
Soe Se ET Gs SED acces dsndeanvceen 22, 24
Williams v. Raytheon Company, 220 F.3d 16 (1* Cir.
EE 46s x ob ban eeneed (bee cone ies 15
Statutes:
ye ee Be Sr re ree rere oe 1
y Le tom By. re i, 1, 4, 21, 23, 24, 25, 26
SP hans SED: 6.4 kw eka ede as se heae es l
Idaho Human Rights Act, Section 67-5909 ....... 2

Rules:

ix

TABLE OF APPENDICES

Appendix A — Order Of The United States Court
Of Appeals For The Ninth Circuit Dated And Filed
DNEE TH Oe. 6 0:.0045040% 60 Rs ean ned

Appendix B — Order Of The Supreme Court Of The
United States Dated June 19,2000 ...........

Appendix C — Order Of The United States Court
Of Appeals For The Ninth Circuit Dated And Filed
gg REY Paeires Fee pe we fe aor

Appendix D — Order Of The United States Court
Of Appeals For The Ninth Circuit Dated And Filed
PU Fy RA okk 45a ia Wes 0 wkd eRe ens

Appendix E — Order Of Certification Of The United
States District Court For The District Of Idaho
Dated And Filed May 13, 1998 ..............

Appendix F — Memorandum Decision And Order
Of The United States District Court For The
District Of Idaho Dated And Filed January 20,
ia pirhas ie ths habs eek ae ohn Ce aus ke

Appendix G — Order Of The United States Court
Of Appeals For The Ninth Circuit Denying
Petition For Rehearing Dated And Filed
September 2, 1999

6a

1

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, 1la-
4a, 6a-20a, 72a-73a) are unreported. The opinions of the
district court. (Jd. at 21a-72a) are also unreported.

STATEMENT OF JURISDICTION

The court of appeals’ orders sought to be reviewed were
entered on September 15, 2000, July 6, 1999 and on June
10, 1998. (App., infra, 1a-14a). This Court’s order vacating
the court of appeals’ July 6, 1999 decision was entered on
June 19, 2000. (App., infra, 5a). The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 623(a) of the Age Discrimination in Employment
Act, 29 U.S.C. § 623(a)(1) (“ADEA”) provides, in relevant
part, that: “It shall be unlawful for an employer — (1)...
to discharge any individual or otherwise discriminate against
any individual . . . because of such individual’s age. .. .”

28 U.S.C. § 1292(b) provides that:

When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
involves a controlling question of law as to which
there is substantial ground for difference of
opinion and that an immediate appeal from the
order may materially advance the ultimate
termination of the litigation, he shall so state in
writing in such order. The Court of Appeals which

2

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 is based in Dallas, Texas, owns and
operates more than 750 budget motels throughout the United
States. At the time these cases were brought, the Motel 6
motels in question were run by a manager and assistant
manager, a wife and husband respectively. The manager had
the principal responsibility for the motel. (App., infra, 34a,
67a; 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, 1994,
Donna Huttinger, age 55, managed the Motel 6 motel in
Pocatello, Idaho, where her husband, Art Huttinger, age 68,

3

was the assistant manager. (App., infra, 34a, 36a).
The Huttingers were replaced by a manager who was 43 and
an assistant manager who was 45. /d. at 36a.

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,
34a, 36a). The Fennerns were replaced by a manager who
was 49 and an assistant manager who was 35. Jd. at 36a.

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. Jd. at 1729.

B. Proceedings Below.

The Fennerns and Huttingers brought separate actions
in federal district court in Pocatello, Idaho against Motel 6
alleging that they were discharged because of their age.
The Fennerns alleged that Motel 6 had violated the ADEA
and the Idaho Human Rights Act (“IHRA”). The Huttingers
brought their case under the IHRA.' On February 18, 1997,
the district court (Winmill, J.) consolidated the two cases
for trial. (App., infra, 34a-35a).

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, 35a).

1. The Huttingers and Fennerns had other claims that did not
survive summary judgment. (App., infra, 34a-35a).

4

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, 70a). In the Fennern case, the district court
granted Motel 6’s new trial motion on the basic ADEA
violation. Jd. 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. Jd.

The Fennerns petitioned the district court pursuant to
28 U.S.C. § 1292(b) to certify their case for an interlocutory
appeal. (App., infra, 25a). The Huttingers moved for
certification of their case pursuant to Rule 54(b),
Fed. R. Civ. P. Jd. at 23a. Motel 6 opposed the Fennerns’ .
petition but not the Huttingers’. Jd. On May 13, 1998,
the district court granted the Fennerns’ petition
and the Huttingers’ motion. Jd. at 3la. The Fennerns
thereupon petitioned the court of appeals pursuant to
28 U.S.C. § 1292(b) to hear their interlocutory appeal.
Id. at 20a. 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, 6a-19a). Motel 6’s petition for rehearing and
suggestion for rehearing en banc was denied on September 2,
1999. Id. at 72a-73a.

On December 1, 1999, Motel 6 filed a petition for writ
of certiorari. On June 19, 2000, the Court vacated the Ninth
Circuit’s judgment and remanded the case to the court of
appeals for further consideration in light of Reeves v.

5

Sanderson Plumbing Products, Inc., 530 U.S. __ (2000).
(App., infra, 5a).

Without seeking supplemental briefing or argument, the
court of appeals, in its September 15, 2000 unpublished
memorandum disposition reinstated its prior decision
reversing the trial court’s granting of judgment as a matter
of law and a conditional new trial with respect to the
Huttingers, and a new trial with respect to the Fennerns
(App., infra, 2a-4a).

C. Facts And District Court Findings.
1. The Huttingers.

The Huttingers were discharged for: (1) discrimination
against Native Americans and (2) violations of Motel 6’s
safety and security policy. Motel 6 also introduced evidence
of widespread employee complaints against the Huttingers.
(App., infra, 39a).

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, 51a; Tr. 1757, 1369).
Massman initially discussed the matter with regional vice
president Griffith. Tr. 1079. Griffith directed Massman to
go to the Huttingers’ motel and conduct an investigation. /d.
Massman proceeded to interview employees who had been
required by the Huttingers to carry out the Huttingers’
discriminatory policies against Native Americans. Id. at
1080-82. Massman then reported back to Griffith that his
investigation revealed the Huttingers were in fact
discriminating against Native Americans. Jd. at 1085-88.
At that point, Griffith and Massman decided to discharge
the Huttingers. Jd. After their return from vacation,
Massman met with the Huttingers and, during a face-to-face

6

meeting, informed them of their discharge. Jd. at 1091-92.
(App., infra, 51a).?

The district court found that, except for the Huttingers’
general denial, the Huttingers did not rebut documentary and
testimonial 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, 52a-55a).
The memoranda instructed desk clerks to check the
identification of prospective Native American guests more
closely than that of other prospective guests. /d. at 52a. One
memorandum referred to “people who are indians [sic] or
look questionable.” Jd. 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 53a. The fact that Jenson’s name
appeared on the second page of this memorandum provided
“compelling 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
had guided Jenson’s hand while she did so. Jd. at 54a. The
memorandum introduced into evidence bears the notation
“Teresa Jensen TJ.” Id. at 53a. The district court observed
that Donna Huttinger had testified that this notation was in
her own handwriting. (App., infra, 54a). The district court
also noted that Malone? and Jenson had both given unrebutted

2. The Huttingers actively attempted to persuade Massman to
change his mind. Ex. 75.

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, 53a-54a).

7

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. Jd. 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 52a n.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, 52a-53a). 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. Jd. at 54a.

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, 54a-55a). 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.” Jd. at 55a.

The district court also observed that Donna Huttinger
admitted to several security violations and Art Huttinger

4. At the time of the trial, Malone was employed as a school
bus driver. Tr. 1354-55. Neither she nor her husband was employed
by Motel 6. /d. Jensen also had no connection with Motel 6 at the
time of the trial. Tr. 1557.

8

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, 5Sa-56a).°

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, 57a). Judge Winmill observed that
Art Huttinger did not dispute that he had ordered Motel 6
employees to work on the Huttingers’ personal motor home.
Id. Donna Huttinger admitted that this was a Motel 6 policy
violation. Jd. The district court also observed that a former
area manager and Huttinger witness, Joe Demarest, testified
that this violation constituted grounds for discharge. /d.
The Huttingers did not introduce any direct evidence
that they were discriminated against on the basis of age.
(App., infra, 41a).

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, 59a).° Accordingly, the

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 and Massman testified that he made
Huttinger aware of all the violations during that first inspection.
Tr. 810-11, 1043; Pl. Exs. 85, 96.

6. The district court observed that the jury could not have
reasonably disbelieved Motel 6’s proffered reasons based on the
(Cont’d)

9

district court concluded that the Huttingers were entitled to
JAML. Id. at 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,
_45a). 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. Jd. Six months later, Massman
and Griffith inspected the Fennerns’ motel while the Fennerns
were on vacation. (App., infra, 44a; Tr. 1135). The motel failed
that inspection, mainly because the motel was insufficiently
clean to meet Motel 6 standards. (App., infra, 44a). 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 principally 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, 44a). 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. Jd. at 63a-64a. The district court found that at the
“leisurely rate of one room per day, the Fennerns could have
completed the task within three months.” Jd. at 65a.

(Cont'd)

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, 58a n.17).

10

The district court also found that Motel 6 presented
“convincing testimony to rebut” the Fennerns’ pretext evidence
(App., infra, 64a): A purchase requisition showed that the
Fennerms received more supplies than they admitted. /d. 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. Jd. 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.
Id. at 65a.’

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, 67a). 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). Jd. 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

7. The only direct evidence introduced by the Fennerns that Motel
6 intended to discriminate against them because of their age were
comments made on two occasions by Massman that he could replace
the Fennerns with college students at a lower wage. (App., infra, 41a).
The district court observed that Jim Fennern admitted the statements
were made at least six months before the Fennerns were discharged.
Id. Delores Fennern contradicted her husband, claiming the statements
were made three months prior to their discharge. (Tr. 180-82, 430).
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, 61a n.20).

——~ —

11

district court concluded, 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. Jd.

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, 68a).
First, Plaintiffs had represented to the court they would
put in evidence of a pattern of age discrimination. /d.
Over Motel 6’s objection, the district court permitted
consolidation. /d. Later, just before trial, Plaintiffs announced
that they did not intend to introduce pattern evidence.
(App., infra, 35a). 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., 68a). 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. . . .” Jd.

Secondly, upon learning that the Plaintiffs abandoned
their pattern 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, 69a). 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. Jd. The district court concluded that:
“Motel 6 was clearly prejudiced by this unintended result.”
Id.

12

D. The First Court Of Appeals Decision.

In its first decision, prior to this Court’s remand, the
court of appeals reversed ihe district court in both cases,
rejecting the district court’s reliance on uncontroverted
documentary and testimonial evidence (App., infra, 18a-19a).
With respect to the Huttingers, the court of appeals relied on
plaintiffs’ contentions that: (1) area manager Massman, who
terminated the Huttingers, held the area manager position
for one month before he discharged the Huttingers;
(2) Massman conducted “surreptitious” inspections;
(3) Massman never reviewed the Huttingers’ personnel files;
and 4) Massman never inquired about the Huttingers’ alleged
discriminatory policies before terminating them (App., infra,
14a). 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 15a.

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, 16a) The panel found that manager and assistant
manager were hired as teams, not individuals. Jd.

The court of appeals summarily rejected the district
court’s findings with respect to the Fennerns. (App., infra,
16a). The court observed that Motel 6 had hindered the
Fennerns’ ability to clean their motel after they took over,
that the relief managers were responsible for motel
cleanliness in the Fennerns’ absence. Jd. The court concluded
that the Fennerns were discharged because of their age. Jd.

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, 16a).
The panel gave three reasons for its conclusion: (1) each case
involved “similar allegations” against the motel managers;

RE ene ements ramen aR

13

(2) the cases had the same “pattern of furtive inspections”; and
(3) the inspections were followed by “instant terminations” in
both cases. Id.

Motel 6’s petition for rehearing and suggestion for rehearing
en banc was summarily denied. (App., infra, 72a-73a).

On this Court’s remand for further consideration in light of
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. __
(2000), the circuit court reinstated its earlier memorandum and
the jury verdicts. (App., infra, 4a). The court of appeals observed
that both the Huttingers and Fennerns presented strong prima
facie cases and produced evidence that the asserted justifications
for their firings were false. (App., infra, 3a). The court noted
that both couples were replaced by couples who were
“significantly younger, less experienced, and received
substantially lower salaries.” Jd. The Ninth Circuit observed
that both firings occurred after area manager Massman paid
“surprise visits” to the motels involved while the Huttingers
and Fennerns were away on vacation and fired them “without
warning” upon their return and without first looking at their
personnel files. (App., infra, at 3a-4a).

The court briefly reviewed plaintiffs’ evidence that the
reasons offered by Motel 6 for the discharges were pretextual.
(App., infra, 4a). The court noted that while Massman asserted
that the Huttingers were maintaining an unlawful policy of
discriminating against Native Americans, he did not give them
an opportunity to respond to the allegations and at trial the
Huttingers discredited the sources of this information, “both of
whom were disgruntled employees.” Jd. The court also observed
that while the Huttingers were also fired for mishandling keys,
a safety violation Massman testified he discovered in an earlier
inspection, he “never divulged” his earlier findings to the
Huttingers. Jd. The court of appeals did not review its reasons
for overturning the district court’s contingent new-trial ruling,
but instead relied on its previous decision.

VTS

RIE Matin a foe

14

The court of appeals also referred briefly to the Fennerns’
pretext evidence. (App., infra, 4a). It observed that, while
Massman claimed he discharged the Fennerns for failure to
keep the premises clean, they presented evidence that the
motel was filthy when the Fennerns took over, Motel 6
hindered their ability to clean the motel, and the relief
managers who were on duty while the Fennerns were on
vacation were responsible for the motel’s cleanliness at the
time of Massman’s inspection. Jd.

REASONS FOR GRANTING THE WRIT

I. IGNORING THIS COURT’S DIRECTIVE IN
REEVES THAT THE COURT OF APPEALS MUST
CAREFULLY CONSIDER THE PROBATIVE
VALUE OF THE PROOF THAT THE
EMPLOYER’S EXPLANATION IS FALSE, THE
NINTH CIRCUIT FOR A SECOND TIME DID NOT
ADDRESS AT ALL THE FAILURE OF THE
HUTTINGERS TO REBUT POWERFUL
EVIDENCE SHOWING THAT THEY WERE
DISCRIMINATING AGAINST NATIVE
AMERICANS, AND ALSO MISCHARACTERIZED
UNDISPUTED EVIDENCE SUPPORTING MOTEL
6°S REASONS FOR DISCHARGING THE
FENNERNS AND HUTTINGERS.

In Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. __ (2000), 120 S. Ct. 2097, 2109, this Court set out a
road map for the courts of appeals to follow in determining
whether a district court has properly granted judgment as a
matter of law under Rule 50, Fed. R. Civ. P. Among other
things, that directive required the court of appeals carefully
to consider the probative value of the plaintiff’s proof that
the employer’s explanation for the plaintiff’s discharge was
false and other evidence that supports the employer’s case.
The Ninth Circuit’s decision after this Court’s remand fails

15

utterly to do what the Reeves decision requires. Rubber
stamping its previous decision overturning the trial court’s
careful analysis of the evidence and JAML and new trial
findings, the court of appeals ignored for a second time the
critical, unrebutted evidence in the case showing that the
Huttinger plaintiffs were actively discriminating against
Native Americans — the principal basis for their discharge.
The Ninth Circuit’s perfunctory review of the evidence also
involved serious misstatements of the record that additionally
call into question the basis for its overturning the trial court’s
conclusions to grant Motel 6 JAML and a contingent new
trial with respect to the Huttingers and a new trial with respect
to the Fennerns.

In Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. __ (2000), 120 S. Ct 2097, 2109, the Court instructed
that whether JAML is appropriate depends upon a number
of factors, including:

.. . the strength of the plaintiff’s prima facie case,
the probative value of the proof that the
employer’s explanation is false, and any other
evidence that supports the employer’s case and
that properly may be considered on a motion for
judgment as a matter of law

Following this analysis, courts of appeals in post-Reeves
cases have affirmed trial courts’ JAML or summary judgment
findings for the defendant where the plaintiff’s pretext
evidence was not sufficient to permit a reasonable jury to
find that the employer’s asserted reason for a discharge was
false. See, e.g., Williams v. Raytheon Company, 220 F.3d 16,
19-20 (1% Cir. 2000); Schnabel v. Abramson, 232 F.3d 83
(2d Cir. 2000); James v. New York Racing Association, __
F.3d __ (2d Cir. 2000), 2000 WL 1752908; Massey v. Blue
Cross-Blue Shield of Illinois, 226 F.3d 922, 924-26 (7" Cir.
2000); Taylor v. QHG of Springdale, Inc., 218 F.3d 898, 899-

16

901 (8 Cir. 2000); Stewart v. Adolph Coors Co., 217 F.3d
1285, 1288-89 (10" Cir. 2000). While the pretext evidence
in the instant cases was considerably weaker than in those
cited above, the court of appeals here inexplicably overturned
a comprehensive and well-reasoned district court opinion
based on uncontroverted evidence fully justifying the
discharges of the Huttingers and Fennerns.

A. The Huttinger Case.

The Huttingers produced no direct evidence of Motel 6’s
intent to discriminate against them. Motel 6’s principal basis
for discharging the Huttingers was that they were
discriminating against Native Americans in renting rooms
at the Huttingers’ motel. The Huttingers did not dispute the
authenticity of desk-clerk memoranda discriminating against
Native Americans that the Huttingers authored and that relief
manager Malone found in the motel’s “training desk clerks”
file as well as in desk clerk Jenson’s personnel file and turned
over to Massman. Donna Huttinger admitted using the
memoranda until late 1990, when the previous area manager,
Bob Williams, instructed her to stop using them. /d.
She denied using them thereafter. (App., infra, 52a-53a).

Motel 6 introduced one of these memoranda
discriminating against Native Americans that bore desk clerk
Jenson’s handwritten name, which Donna Huttinger admitted
was in Huttinger’s handwriting. (App., infra, 53a). Jenson
was not hired until 1993, about one month before the
Huttingers were discharged. (App., infra, 54a). The
Huttingers could not explain how Jenson’s name came to be
on the memorandum. /d. Jenson, however, provided that
explanation.

Jenson testified that Donna Huttinger remonstrated with
her repeatedly for not following the Huttinger check-in
policies, including the policy discriminating against Native
Americans. (App., infra, 54a). On one such occasion, Donna

17

Huttinger took the discriminatory policy memorandum out
of the file, put a pen in Jenson’s hand, grasped Jenson’s hand
and guided it to write Jenson’s name on the memorandum.
Id. Jenson testified that the signed memorandum was then
returned to Jenson’s personnel file. Jd. Although the
Huttingers had the opportunity to rebut Jenson’s and
Malone’s testimony, they did not do so. Id.

The court of appeals ignored the failure of the Huttingers
to explain the presence of Jenson’s name on the
discriminatory memorandum. Instead, the court of appeals
summarily pronounced that the “Huttingers discredited the
sources of this information, both of whom were disgruntled
employees.” (App., infra, 4a).° In fact, the undisputed
testimony shows that neither Malone nor Jenson was
employed by Motel 6 at the time they testified. Tr. 1354-55,
1557. See Chesapeake & Ohio Ry Co. v. Martin, 283 U.S.
209, 216 (1931); Pennsylvania R. Co. v. Chamberlain, 288
U.S. 333, 343 (1933) (mere fact that a defense witness once
was employed by a defendant no basis for discrediting him).
Neither was there any evidence to show that Malone was
discontented as a result of anything the Huttingers had done
to her. While Jenson did not like Donna Huttinger, that is an
insufficient basis for not crediting a witness whose testimony
is independently corroborated by undisputed documentary
evidence. Particularly is this so where the witness’ antipathy
is grounded on her being forced to discriminate in violation
of federal and state law and Motel 6 policy. In light of this
undisputed evidence, no reasonable jury could have found
in the Huttingers’ favor.

Even more disturbing is the court of appeals’ overturning
of the trial court’s contingent new trial order. While the court
of appeals did not detail at all its reasons for doing so

9. In its earlier decision, the court of appeals found that Malone
was not disinterested because she took over as manager after the
Huttingers’ discharge. (App., infra, 14a).

18

(see App., infra, 15a) the reversal must have based at least
in part on the court of appeals’ unwillingness to accept
Malone’s and Jenson’s testimony. Judge Winmill saw
Malone, Jenson and the Huttingers testify; the court of
appeals did not. On a motion for a new trial, Judge Winmill
was entitled to evaluate their credibility. See, e.g., Byrd v.
Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525,
540 (1958); Harris v. Secretary, United States Department
of the Army, 119 F.3d 1313, 1318 (8" Cir. 1997); DLC
Management Corp. v. Town of Hyde Park, 163 F.3d 124, 134
(2d Cir. 1998). The scope of appellate review of the trial
court’s decision on a new trial motion is thus quite narrow.
Sulmeyer v. Coca Cola Company, 515 F.2d 835, 851-52
(S5" Cir. 1975). In this case, the court of appeals plainly
exceeded its authority in throwing out Jenson’s and Malone’s
testimony.

The court of appeals also relied on the fact that Massman
had held his position for less than a month before he
terminated the Huttingers, “never inquired about the
Huttingers’ alleged discriminatory policies before
terminating them... .” (App., infra, 14a), and never gave
them an opportunity to respond to the allegations (App., infra,
4a). In fact, the undisputed evidence shows that the decision
to terminate the Huttingers was made by Griffith, an
experienced executive, and Massman together. Tr. 920-21,
1079-80. 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. While Massman and Griffith decided to discharge
the Huttingers before they returned from vacation, Massman
met with the Huttingers after their return. Ex. 75. At that
time, the Huttingers could offer no more explanation for their
transgressions than they have to this day — a general denial
that they were discriminating against Native Americans. /d.

19

The court of appeals also observed that “without any
warning, Massman” discharged the Huttingers upon their
return from vacation, without first looking at their personnel
files. (App., infra, 3a-4a). The statement is at least partially
inaccurate. It is not disputed that the Huttingers were warned
by their previous area manager about discriminating against
Native Americans. (App., infra, 52a). Moreover, while review
of the Huttingers’ personnel file would have revealed good
prior evaluations, the Huttingers produced nothing from their
personnel file that would have permitted Massman to
overlook the Huttingers’ blatant discrimination. Surely in so
serious a matter as discrimination against Native Americans,
Motel 6 was entitled to act quickly and decisively, and no
reasonable jury could have found otherwise.

Motel 6 also relied on the fact that the Huttingers
committed numerous safety and security violations.
The district court found that Donna Huttinger admitted the
existence of some of the violations, some of which involved
violation of Motel 6’s key control policy, and was unsure of
the existence of others. (App., infra, 55a-56a). In reversing,
the court of appeals claimed that Massman discovered the
violations in an early inspection “but never divulged the
violations to the Huttingers.” (App., infra, 4a). Art Huttinger
denied that he had had a “discussion” with Massman
concerning the key policy. Tr. 812. Huttinger admitted,
however, that he had discussed with Massman Huttinger’s
violation of the blue tag “key policy” at an inspection on
May 13, 1993, four months before his discharge. Tr. 807-08,
812. Massman testified that on May 13 he spoke to Huttinger
about the violations and gave a copy of his May 13 action
report, which included a listing of the various key policy
violations, to the Huttingers. Pl. Ex. 85, 96: Tr. 1043. Thus,
the court of appeals mischaracterized the record. Huttinger
admitted he was aware of at least one key policy violation,
but had failed to rectify it in the four months preceding his
discharge.

20

The court of appeals did not address at all Motel 6’s third
reason for discharging the Huttingers: widespread employee
complaints. Among other things, the trial court found that
Art Huttinger admitted that he ordered an on-duty employee
to wash the Huttinger’s personal motor home, a clear
violation of Motel 6 policy. (App., infra, 57a; Tr. 818).

B. The Fennerns.

Observing that the Fennerns had made a strong prima
facie case, the court of appeals found that the Fennerns were
_ replaced by persons who were “significantly younger .. .”
than they. (App., infra, 3a). That is not correct. As the district
court found, Delores Fennern, age 58, was replaced by a
manager who was 49. (App., infra, 36a, 61a n.20). While
the Fennerns were hired and discharged as a team, the
undisputed evidence shows that the responsibility for running
the motel was the manager’s and that she was compensated
accordingly. Thus, the official job description for manager
states that the “manager is responsible for the implementation
of the standards and procedures at the property . . . to ensure
proper operations.” Pl. Ex. 29. The manager is also
responsible for the “[sJupervision of all aspects of
employment for motel staff... .” Jd. The assistant manager
“is an hourly employee who is assigned a variety of duties
by the Manager, based on the daily demands of the property.”
Id. Among these, he must “[h]andle duties of desk clerk as
needed.” Jd.

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, 15a). 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), the motel was filthy when the
Fennerns took over, and the relief managers on duty when

21

the Fennerns were on vacation were responsible for the
cleanliness of the motel. (App., infra, 4a).

There is no dispute that the motel was filthy when
the Fennerns took over. They were asked to bring it up to
standard within six months. (App., infra, 45a). There is also
no dispute that the Fennerns failed to do so. (App., infra,
44a). The district court relied on the fact that uncontroverted
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 the motel in one month (App., infra, 64a). The record
does support the court of appeals’ suggestion that the relief
managers who were at the Fennerns’ motel only for the three
weeks while the Fennerns were on vacation were responsible
for bringing a filthy motel up to standard. Their function
was limited to “conducting normal routine duties . . .” and
providing coverage while the regular managers were on
vacation. Pl. Ex. 27, Tr. 190-91. They were simply “baby-
sitting” the motel. Tr. 1135.

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 A DIFFERENCE OF OPINION.

While certifying the Fennerns’ 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, 26a, 31a). 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

22

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,
59-601 (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 Court’s consideration of the
appropriate procedures for appellate review and the potential
for abuse of the interlocutory appeal process.

A. The District Court’s Order of Certification.

In its Order of Certification, the district court considered
each of five legal issues that the Fennerns contended involved
a controlling question of law upon which there were
substantial grounds for difference of opinion. The district
court refused to certify the case on the basis of any of these
issues (App., infra, 26a-29a). 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 27a. 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. Jd. at 27a. The district court
concluded that it viewed “an interlocutory appeal of
any individual question of law to be unwarranted... .”
(App., infra, 30a).

23

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. /d.
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. Jd. at 29a. The court reasoned that if an interlocutory
appeal was not permitted now a “disturbing result” might
occur after the second trial. Jd. at 29a-30a. The court of
appeals might affirm the new trial order but order a new trial
on the willful violation issue, thus requiring a time-
consuming third trial. Jd. 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).
Id. at 31a.

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, 20a).

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 all the certification
requirements of the statute have been met. Jd. 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

24

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). Id. See Union Oil Co. of California v. John Brown
E&C, 121 F.3d 305, 311 (7® Cir. 1997) (appeal granted only
if district court believes an issue involves a controlling
question of law as to which there is substantial ground
for difference of opinion and “says so in writing... .”);
Bullock v. Baptist Memorial Hospital, 917 F.2d 58, 59-60
(8 Cir. 1987) (district court reliance on fact that immediate
appeal will enable court to hear action against all defendants
at one time and in one forum does not confer jurisdiction on
court of appeals under § 1292(b) in absence of district court
finding that there is a controlling question of law on
which there is substantial ground for difference of opinion);
Lerner v. Atlantic Richfield Company, 690 F.2d 203, 209
(Temp. Emer. Ct. of App. 1982) (dicta).

In our case, the district court specifically found that there
was no controlling issue of law on which there was
substantial ground for difference of opinion under Section
1292(b). Thus, the jurisdictional prerequisite for a petition
to the court of appeals had not been met and the Fennerns’
petition should have been dismissed. The district court could
not escape this jurisdictional requirement by relying solely
on judicial economy and fairness to the litigants. There is no
precedent for such an approach."

10. 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 is a policy favoring interlocutory appeal that may
impact on the controlling-question-of-law issue.

25

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 faimess might serve
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 y. Livesay, 437 U.S. 463, 475 (1978)
(emphasis added), quoting from Fisons, Ltd. y. United States,
458 F.2d 1241, 1248 (7 Cir. 1972). See the Ninth Circuit’s
decision in Jn 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.” Jd.
(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 ER.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, 29a-30a). 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

26

an interlocutory appeal. See Steele v. Wiedmann Machine
Company, 280 F.2d 380, 383-84 (3d 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 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.

Iti. 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 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
court, and did so after misstating the record in two crucial

respect.

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

27

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,
68a).'' In reversing the district court, the court of appeals relied
on the following: “[EJach case involved similar allegations
against the same Motel 6 managers, and the same patterns of
furtive inspections followed by instant terminations.” Jd. at 1 la.
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 court’s “substantial differences” finding was
not supported in the record. The court of appeals did not do
so. There is absolutely no 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 evidence to support another of the court of
appeals’ findings of similarities in the two cases: “the same

11. 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, more manageable motel
in Idaho Falls. (App. infra, 58a n.17).

28

pattern of furtive inspections. . . .” (App., infra, 11a). Massman
went openly to the Huttingers’ motel to investigate specific
complaints of discrimination by the Huttingers, a most serious
matter whose resolution he and Griffith nightly concluded should
not wait until the Huttingers’ return. (App., infra, 46a, 48a;
Tr. 1079, 1080-82). In contrast, Massman, along with Griffith,
did a complete inspection of the Fennerns’ motel after Massman
had stayed at the motel frequently but had not seen the process
of cleaning it up that he was expecting. Tr. 1129. 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 case to reject the district court’s finding
that Motel 6 was severely prejudiced by the district court’s
decision to preclude Motel 6’s statistical evidence on age
discrimination complaints. In sum, the court of appeals had no
significant basis for finding that the district court’s decision to
grant a new trial because the cases were wrongly consolidated
was an abuse of discretion or was otherwise incorrect.

CONCLUSION

For the foregoing reasons, the Court should grant Motel
6’s petition for certiorari in these cases and reverse the court of
appeals rulings on the issues presented in these cases.

Respectfully submitted,

MICHAEL F. MARINO
Counsel of Record
FREDERIC FREILICHER
HUNTON & WILLIAMS
Attorneys for Petitioners
Suite 1700

1751 Pinnacle Crive
McLean, Virginia 22102
(703) 714-7400

APPENDIX

la

APPENDIX A — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DATED AND FILED SEPTEMBER 15, 2000

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,
V.

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

Defendants- Appellees.

No. 98-35608
D.C. No. 95-CV-121-BLW

JAMES FENNERN, HUSBAND, AND
DELORES FENNERN, WIFE

Plaintiffs-Appellants,

Vv.

MOTEL 6 OPERATING LP; MOTEL 6 GP INC.;
JOHN DOES, 1-4,

Defendants-Appellees.

ee ee

hha sip ai aas acta

2a

Appendix A
ORDER

Before: B. FLETCHER, REINHARDT and THOMAS,
Circuit Judges

On July 6, 1999, we decided in an unpublished
memorandum disposition to reinstate the jury verdicts in
favor of the plaintiffs in the above captioned cases. The
Supreme Court granted a writ of certiorari, vacated the
memorandum disposition, and remanded for further
consideration in light of its recent opinion in Reeves v.
Sanderson Plumbing Products, 530 U.S. __, 120 S.Ct. 2097
(2000). See Motel 6 Operating L.P. v. Huttinger, 530 U.S.
__, 120 S.Ct. 2687 (2000). After due consideration, we
reinstate our memorandum disposition.

In Reeves, the Supreme Court held that “a plaintiff's
prima facie case, combined with sufficient evidence to find
that the employer’s asserted justification is false, may permit
the trier of fact to conclude that the employer unlawfully
discriminated.” 120 S.Ct. at 2109.

The district court granted judgment as a matter of law
to the defendant in the Huttingers’ case. To determine
whether, in a particular case, an employer is entitled to
judgment as a matter of law, Reeves instructs that we consider
“{1] the strength of the plaintiff's prima facie case, [2] the
probative value of the proof that the employer’s explanation
is false, and [3] any other evidence that supports the
employer’s case and that properly may be considered on a
motion for judgment as a matter of law.” 120 S.Ct. at 2109.
“Under Rule 50 a court should render judgment as a matter
of law when ‘a party has been fully heard on an issue and

3a

Appendix A

there is no legally. sufficient evidentiary basis for a reasonable
jury to find for that party an that issue.’ Fed. Rule Civ. Proc.
50(a); see also Weisgram vy. Marley Co., 528 U.S. pas
(2000) (slip op., at 5-7).” Id.

In addition to granting judgment as a matter of law against
the Huttingers, the district court also granted, in the alternative,
a new trial. The district court also granted a new trial to the

As set forth in our memorandum disposition, both the
Huttingers and the Fennerns presented strong prima facie
cases, and produced evidence that the employers’ asserted
justifications for their firings were false. The Huttingers were
sixty-eight and fifty-five, and the Fennerns were sixty and
fifty-eight when they were fired. Both husband and wife
management teams were replaced by couples who were
Significantly younger, less experienced, and received
substantially lower salaries. This establishes prima facie
cases of age discrimination as to both couples. See Wallis y.
J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994). The
plaintiffs also presented strong evidence that the reasons
given by Motel 6 for their firings were false. Both firings
Were precipitated when the Motel 6 area manager, Doug
Massman, paid surprise visits to the motels managed by the
Huttingers and the Fennerns while they were away on
vacation. In both cases, without any warning, Massman fired

4a

Appendix A

the plaintiffs immediately upon their return. Also, in both
cases Massman never looked at their personnel files before
firing the plaintiffs.

In the Huttingers’ case, one of the Massman’s reasons
for the firing was that the Huttingers purportedly mishandled
the keys, a violation that he claims to have discovered in an
earlier inspection but never divulged to the Huttingers.
Massman also asserted that the Huttingers maintained an
unlawful policy of discriminating against Native Americans,
but never gave them an opportunity to respond to the
allegations. At trial, the Huttingers discredited the sources
of this information, both of whom were disgruntled
employees. Massman claimed he fired the Fennerns for
failure to keep the premises clean but evidence presented to
the jury showed that the motel was filthy when the Fennerns
took over and that Motel 6 had hindered the Fennerns’ ability
to clean the motel, and that the relief managers who were on
duty when the Fennerns were on vacation were responsible
for the cleanliness at the time of Massman’s inspection.

We reinstate our holding that the district court erred in
granting judgment as a matter of law against the Huttingers
because, viewing the evidence in the light most favorable to
the Huttingers, the plaintiffs presented a strong prima facie
case and introduced weighty evidence demonstrating that
their employer’s stated rationales for firing them were false.
We also reinstate our reversal of the district court’s grant of
new trials for the Huttingers and Fennerns for the reasons
set forth in our prior memorandum.

MEMORANDUM AND JURY VERDICTS
REINSTATED

5a

APPENDIX B — ORDER OF THE SUPREME COURT
OF THE UNITED STATES DATED JUNE 19, 2000

SUPREME COURT OF THE UNITED STATES
No. 99-937

MOTEL 6 OPERATING L. P.,
and ACCOR ECONOMY LODGING, INC.,

Petitioners

Vv.

ART HUTTINGER, ET UX.,
and JAMES FENNERN, ET UX.

ON WRIT OF CERTIORARI to the United States
‘Court of Appeals for the Ninth Circuit.

THIS CAUSE having been submitted on the petition
for a writ of certiorari and response thereto.

ON CONSIDERATION WHEREOB. it is ordered and
adjudged by this Court that the judgment of the above court
is vacated with costs, and the case is remanded to the United
States Court of Appeals for the Ninth Circuit for further

consideration in light of Reeves y Sanderson Plumbing
Products, Inc., 530 U § __ (2000).

IT IS FURTHER ORDERED that the petitioners
Motel 6 Operating L. P., and Accor Economy Lodging, Inc.,
recover from Art Huttinger, et ux., and James F ennern, et ux.
Three Hundred Dollars ($300.00) for costs herein expended.

June 19, 2000
Clerk’s costs: $300.00

6a

APPENDIX C — 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,
v.
MOTEL 6 OPERATING LP; MOTEL 6 GP, INC.,

Defendants — Appellees.

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,

Defendants — Appellees.

Fe ee

OF Sere Meg AS OD oy HF,

7a

Appendix C
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.

8a

Appendix C

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,

9a
Appendix C

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 seg.? 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, et seq.

10a
Appendix C

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 clean 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

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Appendix C

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 verdict

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.

12a
Appendix C

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 seq. 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 seq., 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. Jd. at 891. The establishment

13a

Appendix C

of a prima face case “in effect creates a presumption that the
employer unlawfully discriminated against the employee.”
St. Mary’s Honor Center y. Hicks, 509 U.S. 502, 506 (1993).
The burden then shifts to the 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 vy. Pape Lift Inc., 115 F.3d
676, 680 (9th Cir. 1997). Judgment as a matter of law is
appropriate only where the evidence, construed in the light
most favorable to the nonmoving party, “permits only one
reasonable conclusion, and that conclusion is 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

l4a

Appendix C

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 v. 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 plaintiff. See St. Mary’s Honor Center, 509 U.S. at
511 (emphasis in original).

The sources of the evidence against the Huttingers —
a relief manager who took over the Huttingers’ managerial
role after their termination, and a disgruntied 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. Judgment
as a matter of law, therefore, was inappropriate.

15a
Appendix C

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 Oltz 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.

et rae a ee ae

16a
Appendix C

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

17a
Appendix C

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,
I.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 the ADEA was “in the 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

18a
Appendix C

“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

19a

Appendix C
damages under Idaho law and liquidated damages under the

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

REVERSED.

20a
APPENDIX D — 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).

2la

APPENDIX E — 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.

22a

Appendix E
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 because 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.

23a
Appendix E

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 is 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 54(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 disbelief of Motel 6’s proffered reasons
for discharging the plaintiffs was supported by the evidence
at trial. 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

24a
Appendix E

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 Court 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 is granted.

The Fennern Case

A new-trial order is interlocutory and not immediately
appealable. See Schudel v. General Elec. Co., 120 F.3d 991,

25a

Appendix E

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 In re Cement Antitrust
Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982).

A question of iaw is “controlling” if its “resolution on
appeal could materially affect the outcome of litigation in
the distric: court.” Jd. 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 Empleyment
Act.

26a

Appendix E

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.,

27a

Appendix E

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 it 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 Jn 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

at a ee ee ee

28a
Appendix E

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
aliow 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 /n
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

29a

Appendix E

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.

30a

Appendix E

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).

3la
Appendix E

Finally, the Court will stay the proceedings in the
Fennern case until the Ninth Circuit determines whether to
accept the interlocutory appeal.

ORDER

Based on the foregoing and the Court bemg 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 20, 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

32a
APPENDIX F — 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,
v.

MOTEL 6 OPERATING L.P., and
MOTEL 6 G.P., INC.,

Defendants.

33a

Appendix F
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 is 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 of this litigation.

34a

Appendix F
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 seg, 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

EE

35a
Appendix F

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 Fennerns 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:

che Sit) Dit, a eee

36a

Appendix F
Age | Replacement’s
Name (years) Age Differential
Delores Fenner 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

nt

37a
Appendix F

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 judgirent 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 is not openly sanctioned by Ninth Circuit case law, the Court
believes that doing so is 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 reject such evidence, they must accept it as true. Rendering trial

(Cont'd)

38a

Appendix F
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)

39a
Appendix F

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.

40a
Appendix F

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 intentional 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.

4la
Appendix F

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, an 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 Motel
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 vy. Farmers Ins. Group, 892
F.2d 1434, 1438 (9th Cir. 1990). Moreover, Massman’s
comment has no relevance here, since the Fennerns were
. hot 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 Fennerns 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1517%3A1. Public record. Not legal advice.