40 Fair empl.prac.cas. 1565, 40 Empl. Prac. Dec. P 36,168, 40 Empl. Prac. Dec. P 36,316 Jim Barber, David Tarter, & Raymond Bradley v. Am. Airlines, Inc., 791 F.2d 658 (8th Cir. 1986). · Go Syfert
40 Fair empl.prac.cas. 1565, 40 Empl. Prac. Dec. P 36,168, 40 Empl. Prac. Dec. P 36,316 Jim Barber, David Tarter, & Raymond Bradley v. Am. Airlines, Inc., 791 F.2d 658 (8th Cir. 1986). Cases Citing This Book View Copy Cite
“o inference of age discrimination can be drawn, for the simple reason that the employees who were allegedly given preferential treatment were not 'young.' they were in the same age group as plaintiffs.”
60 citation events (3 in the last 25 years) across 11 distinct courts.
Strongest positive: Ernst v. TIAA-CREF Individual & Institutional Services, LLC (moed, 2023-01-20)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
examined Cited as authority (quoted) Ernst v. TIAA-CREF Individual & Institutional Services, LLC
E.D. Mo. · 2023 · quote attribution · 1 verbatim quote · confidence low
o inference of age discrimination can be drawn, for the simple reason that the employees who were allegedly given preferential treatment were not 'young.' they were in the same age group as plaintiffs.
discussed Cited as authority (rule) Lightner v. City of Wilmington, North Carolina
E.D.N.C. · 2007 · confidence medium
Pruitt v. Howard County Sheriff’s Dept., 76 F.3d 374 , 1996 WL 37031, *4 (4th Cir.), cert. denied, 517 U.S. 1235 , 116 S.Ct. 1879 , 135 L.Ed.2d 175 (1996) (unpublished table opinion) (holding the white male plaintiffs failed to rebut their employer’s proffered nondiscriminatory reason for termination, abuse of leadership positions, because, in part, the plaintiffs’ own allegations showed that other white males were not disciplined for the same misconduct); Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986) (…
discussed Cited as authority (rule) Betty Widoe v. Otie Cty. School
8th Cir. · 1998 · confidence medium
In a footnote, the Ryther en banc court highlighted Rothmeier and Barber v. American Airlines, Inc., 791 F.2d 658 (8th Cir.), cert. denied, 479 U.S. 885 (1986),6 as examples of cases in which the plaintiff’s evidence of pretext was not enough to create a submissible question of fact on the ultimate issue of intentional discrimination 6 In Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 (1986), the circumstances were inconsistent with a finding of age discrimination because the individuals whom the plaintiffs identified as receiving preferential tre…
discussed Cited as authority (rule) Betty J. Widoe v. District 111 Otoe County School
8th Cir. · 1998 · confidence medium
In Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986), the circumstances were inconsistent with a finding of age discrimination because the individuals whom the plaintiffs identified as receiving preferential treatment were within the same age group as the plaintiffs. 7 .
discussed Cited as authority (rule) C. Thomas Ryther v. KARE 11
8th Cir. · 1996 · confidence medium
Therefore, this case presents the same situation we faced in Barber v. American Airlines, Inc., 791 F.2d 658, 661 (8th Cir.), cert. denied, 479 U.S. 885 (1986): We have carefully read every page of the testimony at this trial, and we are persuaded that this stringent standard [for setting aside a jury verdict] has been met.
discussed Cited as authority (rule) C. Thomas Ryther v. Kare 11, an Nbc Affiliate Gannett Co., Inc. (2×)
8th Cir. · 1996 · confidence medium
Therefore, this case presents the same situation we faced in Barber v. American Airlines, Inc., 791 F.2d 658, 661 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986): We have carefully read every page of the testimony at this trial, and we are persuaded that this stringent standard [for setting aside a jury verdict] has been met.
discussed Cited as authority (rule) Bradford v. Norfolk Southern Corp.
8th Cir. · 1995 · confidence medium
Even if we assume that the transfer constituted an adverse employment action, compare Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.) (finding adverse action in forced transfer to another city or retirement with no right to bump into different positions in the same location), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986) with Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (reassignment with no diminution of “title, salary, or benefits” insufficient to establish adverse action) and Crady, 993 F.2d at 135-36 (finding no adverse actio…
discussed Cited as authority (rule) Bradford v. Norfolk Southern Corporation
8th Cir. · 1995 · confidence medium
Even if we assume that the transfer constituted an adverse employment action, compare Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.) (finding adverse action in forced transfer to another city or retirement with no right to bump into different positions in the same location), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986) with Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (reassignment with no diminution of "title, salary, or benefits" insufficient to establish adverse action) and Crady, 993 F.2d at 135-36 (finding no adverse action in…
cited Cited as authority (rule) Stokes v. City of Omaha
8th Cir. · 1994 · confidence medium
Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
cited Cited as authority (rule) Stokes v. City Of Omaha
8th Cir. · 1994 · confidence medium
Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited as authority (rule) Robert BEITH, Appellant, v. NITROGEN PRODUCTS, INC., Appellee
8th Cir. · 1993 · confidence medium
Where a case was tried on the merits and the trier-of-faet heard evidence on both sides, we “need not concern [ourselves] with the order of proof and presumptions, but, rather, should ‘simply study the record with a view to determining whether the evidence is sufficient to support whatever finding was made at trial.’ ” Hall v. American Bakeries Co., 873 F.2d 1138 , 1135 (8th Cir.1989) (quoting Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986)).
discussed Cited as authority (rule) 61 Fair empl.prac.cas. (Bna) 941, 59 Empl. Prac. Dec. P 41,752 Sherri Finley v. Empiregas, Inc. Of Potosi, a Delaware Corp., and Empire Gas Corporation, a Missouri Corporation
8th Cir. · 1992 · confidence medium
Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 , 103 S.Ct. 1478, 1481-82 , 75 L.Ed.2d 403 (1983); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 726-27 (8th Cir.1992); Barber v. American Airlines, Inc., 791 F.2d 658, 659-60 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited as authority (rule) James Williams, Appellee/cross-Appellant v. Valentec Kisco, Inc., Appellant/cross-Appellee
8th Cir. · 1992 · confidence medium
As we said in Barber v. American Airlines, Inc., 791 F.2d 658, 659 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986), in considering submissibility of an age case: [W]e are concerned primarily with the simple question whether the record contains enough evidence to justify a rational jury in finding that age was a determining factor in what happened to plaintiff[], a factor in the absence of which the employer would not have taken the adverse action it did.
discussed Cited as authority (rule) Dalmer RADEMAKER, Bill Dittmer, Appellees, v. STATE OF NEBRASKA, Appellant
8th Cir. · 1990 · confidence medium
On review of a judgment entered on a verdict favorable to plaintiff, however, the McDonnell Douglas presumptions “fade away,” Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 (1986), and the *1312 task of the appellate court “is simply to decide whether the record supports the ultimate finding of discrimination.” MacDissi v. Valmont Industries, Inc., 856 F.2d 1054, 1057 (8th Cir.1988) (citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-16 (1983)).
discussed Cited as authority (rule) Alex Ingram, Jr., Appellee/cross-Appellant v. Missouri Pacific Railroad Co., Appellant/cross-Appellee
8th Cir. · 1990 · confidence medium
We have “studped] the record with a view to determining whether the evidence is sufficient to support ... the finding[s] ... *1455 made at trial.” Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
cited Cited as authority (rule) Landals v. George A. Rolfes Co.
Iowa · 1990 · confidence medium
Barber v. American Airlines, Inc., 791 F.2d 658, 659-660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited as authority (rule) 52 Fair empl.prac.cas. 171, 52 Empl. Prac. Dec. P 39,607 Robert W. Smith v. Goodyear Tire & Rubber Company, Robert W. Smith v. Goodyear Tire & Rubber Company
8th Cir. · 1990 · confidence medium
In Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986), this court stated that "[i]n general, if the employer's asserted nondiscriminatory reason for taking the action of which a plaintiff complains can be shown not to be the true reason, or not to have been consistently applied in the past, an inference of discrimination can rationally be drawn by the trier of fact." However, this court made clear that in certain situations, an inference of age discrimination from discredited testimony would be impermissible.
discussed Cited as authority (rule) Smith v. Goodyear Tire & Rubber Co.
8th Cir. · 1990 · confidence medium
In Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986), this court stated that “[i]n general, if the employer’s asserted nondiscriminatory reason for taking the action of which a plaintiff complains can be shown not to be the true reason, or not to have been consistently applied in the past, an inference of discrimination can rationally be drawn by the trier of fact.” However, this court made clear that in certain situations, an inference of age discrimination from discredited testimony would be impermissible…
discussed Cited as authority (rule) Pritchett v. Green Bay Food Co.
E.D. Ark. · 1989 · confidence medium
The factfinder cannot draw an inference of unlawful age discrimination if “the employees who were allegedly given preferential treatment were not ‘young.’ ” Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.1986), cert denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited as authority (rule) William K. HALL, Appellant, v. AMERICAN BAKERIES COMPANY, Appellee
8th Cir. · 1989 · confidence medium
Where, as here, a finding of discrimination vel non has been made, the appellate court need not concern itself with the order of proof and presumptions, but, rather, should “simply study the record with a view to determining whether the evidence is sufficient to support whatever finding was made at trial.” Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited as authority (rule) 44 Fair empl.prac.cas. 1204, 44 Empl. Prac. Dec. P 37,381, 45 Empl. Prac. Dec. P 37,650, 2 indiv.empl.rts.cas. 734 Charles H. Bethea v. Levi Strauss & Co.
8th Cir. · 1987 · confidence medium
This is the teaching of Aikens." Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986). 8 Levi offered evidence of a legitimate nondiscriminatory reason for discharging Bethea, in claiming that the reduction in force was necessary and that Bethea did not have major metropolitan accounts, the focus of the reorganized marketing structure.
cited Cited as authority (rule) Bethea v. Levi Strauss & Co.
8th Cir. · 1987 · confidence medium
This is the teaching of Aikens.” Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, — U.S.-, 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited as authority (rule) William E. Gilliam v. Armtex, Inc., William E. Gilliam v. Armtex, Inc.
4th Cir. · 1987 · confidence medium
Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.), cert. denied, — U.S.-, 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986); Bemdt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253 , 257 (3d Cir.1986).
cited Cited as authority (rule) Castle v. Sangamo Weston, Inc.
M.D. Fla. · 1986 · confidence medium
This is the teaching of Aikens, supra.” Barber v. American Airlines, Inc., 791 F.2d 658, 659-60 (8th Cir.1986). 5 .
cited Cited "see" McGill v. Reynolds Metals Co.
W.D. Ark. · 2001 · signal: see · confidence high
See Barber v. American Airlines, Inc., 791 F.2d 658 (8th Cir.1986).
discussed Cited "see" West v. Conopco Corp. (2×) also: Cited "see, e.g."
Mo. Ct. App. · 1998 · signal: see · confidence high
See Barber v. American Airlines, Inc., 791 F.2d 658 (8th Cir.), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 (1986).
discussed Cited "see" Jin Ku Kim, Appellant/cross-Appellee v. Nash Finch Company, Appellee/cross-Appellant (2×)
8th Cir. · 1997 · signal: see · confidence high
See Ryther, 108 F.3d at 837 n. 4 (discussing cases in which evidence showing employer’s proffered reason was false was inconsistent with reasonable inference of unlawful discrimination and citing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir.1996) (evidence showed real reason for discharge was confrontation about SEC violations), Barber v. American Airlines, Inc., 791 F.2d 658, 660 (8th Cir.) (evidence showed real reason for disparate treatment was not age discrimination), ce rt. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986), and Visser v. Packer Engineer…
discussed Cited "see" Jin Ku Kim v. Nash Finch Co.
8th Cir. · 1997 · signal: see · confidence high
See Ryther, 108 F.3d at 837 n.4 (discussing cases in which evidence showing employer’s proffered reason was false was inconsistent with reasonable inference of unlawful discrimination and citing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. -29- 1996) (evidence showed real reason for discharge was confrontation about SEC violations), Barber v. American Airlines, Inc., 791 F.2d 658 , 660 (8th Cir.) (evidence showed real reason for disparate treatment was not age discrimination), cert. denied, 479 U.S. 885 (1986), and Visser v. Packer Engineering Assocs., 924 F.2d 655, 6…
cited Cited "see" Humphrey v. Nebraska Public Power District
Neb. · 1993 · signal: see · confidence high
See Barber v. American Airlines, Inc., 791 F.2d 658 (8th Cir. 1986), cert. denied 479 U.S. 885 , 107 S. Ct. 278 , 93 L.
cited Cited "see" Burger v. McGilley Memorial Chapels, Inc.
8th Cir. · 1988 · signal: see · confidence high
See Barber v. American Airlines, Inc., 791 F.2d 658 (8th Cir.1986), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
discussed Cited "see" 47 Fair empl.prac.cas. 433, 47 Empl. Prac. Dec. P 38,143 Equal Employment Opportunity Commission, Plaintiff-Appellee/cross-Appellant v. Sperry Corporation, Defendant-Appellant/cross-Appellee
10th Cir. · 1988 · signal: see · confidence high
See Barber v. American Airlines, Inc., 791 F.2d 658, 661 (8th Cir.) (favoritism toward younger employees lacking; hence no inference of age discrimination), cert. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986). 17 Second, the ADEA does not require special treatment for older workers, which EEOC implicitly demands for Koyen.
discussed Cited "see" Equal Employment Opportunity Commission v. Sperry Corp.
10th Cir. · 1988 · signal: see · confidence high
See Barber v. American Airlines, Inc., 791 F.2d 658, 661 (8th Cir.) (favoritism toward younger employees lacking; hence no inference of age discrimination), cer t. denied, 479 U.S. 885 , 107 S.Ct. 278 , 93 L.Ed.2d 254 (1986).
Retrieving the full opinion text from the archive…
40 Fair empl.prac.cas. 1565, 40 Empl. Prac. Dec. P 36,168, 40 Empl. Prac. Dec. P 36,316 Jim Barber, David Tarter, and Raymond Bradley
v.
American Airlines, Inc.
85-1507.
Court of Appeals for the Eighth Circuit.
May 28, 1986.
791 F.2d 658

791 F.2d 658

40 Fair Empl.Prac.Cas. 1565,
40 Empl. Prac. Dec. P 36,168,
40 Empl. Prac. Dec. P 36,316
Jim BARBER, David Tarter, and Raymond Bradley, Appellees,
v.
AMERICAN AIRLINES, INC., Appellant.

No. 85-1507.

United States Court of Appeals,
Eighth Circuit.

Submitted Nov. 11, 1985.
Decided May 28, 1986.

Thomas L. Case, Dallas, Tex., for appellant.

Philip E. Kaplan, Little Rock, Ark., for appellees.

Before ARNOLD and WOLLMAN, Circuit Judges, and REGAN,[*] Senior District Judge.

ARNOLD, Circuit Judge.

[*~658]1

This is an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq. The jury returned a verdict for all three plaintiffs. From the judgment entered on this verdict, the defendant appeals. We hold that there was insufficient evidence to make a jury question of age discrimination and therefore reverse.

2

We state the facts in the light most favorable to plaintiffs, who won the verdict. On January 5, 1983, the defendant, American Airlines, Inc., notified the three plaintiffs, Jim Barber, David G. Tarter, and Raymond Bradley, that it had decided to transfer some of its operations from Little Rock to the Dallas-Fort Worth Airport. This change, which defendant characterized as a consolidation of "operations" functions for its southern region, meant that the jobs plaintiffs had been performing, or at any rate a substantial portion of the duties of those jobs, would no longer exist in Little Rock. Barber, who was 51 at the time, and Bradley, who was 58, were given a choice between taking early retirement and moving to Dallas, where they would be given jobs equal in pay and benefits to their Little Rock positions. Tarter, who was only 49, was not eligible for early retirement, and he was told simply that he would have to move to Dallas if he wished to continue full-time employment with the defendant. Faced with this choice, Barber and Bradley took early retirement, and Tarter moved to Dallas, where, at least as of the time of the trial, he still worked for American. All three plaintiffs then brought this action, claiming that their employer's decision to confront them with the choice described was based at least in part on their age, and was therefore a violation of the ADEA, which provides, in general, that employers may not discriminate against employees between the ages of 40 and 70 on account of age.

3

As the case was put to the jury by the District Court--and neither party now complains of any error in the jury instructions--plaintiffs' contentions were summarized as follows. In their view, they should have been permitted to "bump" other, less senior employees who were working on the ticket counter in Little Rock, instead of being forced either to retire early or go to Dallas. American's reply to this claim is simply that under its personnel practices in effect at the time, no employee could exercise his "bumping" rights under the seniority system unless he was qualified to perform the job into which he wished to "bump," or could become qualified within five days. In American's view, the three plaintiffs were not sufficiently proficient in the computerized business of issuing tickets to justify allowing them to displace full-time ticket agents already on the job. Plaintiffs say that they were sufficiently qualified, and that American refused to allow them to "bump" because of their age. In the alternative, plaintiffs claim that they could have become sufficiently qualified, through study or on-the-job training, if they had been given more advance notice of American's plan to consolidate functions at the Dallas-Fort Worth Airport. When plaintiffs got notice of the planned consolidation on January 5, 1983, they were given only three days to make up their minds whether to retire or move to Dallas. Other employees in the past, plaintiffs argued, had been given more time to prepare for such a situation and had been permitted to educate themselves sufficiently to "bump" ticket agents even though they were no more qualified to perform ticket-agent functions than plaintiffs.

4

In this appeal from a jury verdict, we are concerned primarily with the simple question whether the record contains enough evidence to justify a rational jury in finding that age was a determining factor in what happened to plaintiffs, a factor in the absence of which the employer would not have taken the adverse action it did. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 135 (8th Cir.1985). The three-stage order of proof and the presumptions described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (claim of racial discrimination under Title VII), an analytical scheme which is applied also in age-discrimination cases, is useful to the court in structuring the proof while the trial is in progress, and, in cases tried to the court without a jury, as a framework against which the court can view the evidence in making its findings. But once a finding of discrimination vel non has been made, and the resulting judgment is being evaluated on appeal, these presumptions fade away, and the appellate court should simply study the record with a view to determining whether the evidence is sufficient to support whatever finding was made at trial. This is the teaching of Aikens, supra.

[*~658]5

Here, plaintiffs are members of the protected age group, and the employer did take adverse action against them. The employer's asserted reason for not permitting them to "bump" is that they were not qualified to do so under its personnel regulations. To this plaintiffs reply that these regulations have not been uniformly applied, and that other employees no more skilled than they were permitted to remain in Little Rock in the past in a similar situation. In general, if the employer's asserted nondiscriminatory reason for taking the action of which a plaintiff complains can be shown not to be the true reason, or not to have been consistently applied in the past, an inference of discrimination can rationally be drawn by the trier of fact. See, e.g., Dace v. ACF Industries, Inc., 722 F.2d 374, 378-79 (8th Cir.1983), modified per curiam, 728 F.2d 976 (8th Cir.1984). But here, plaintiffs' theory--that others were permitted to "bump" in the past in a similar situation--contains the seeds of its own refutation. For the other employees who were allegedly given the privilege that plaintiffs now claim were also within the protected age group and, in fact, were reasonably close in age to the plaintiffs themselves.[1] In these unusual circumstances, an inference of age discrimination is plainly impermissible. For even if plaintiffs were unfairly treated, and even if others were unjustly favored in the past, no inference of age discrimination can be drawn, for the simple reason that the employees who were allegedly given preferential treatment were not "young." They were in the same age group as plaintiffs. If any kind of discrimination is operating here, therefore, it is not age discrimination, and that is all this case is about.

6

Similarly, we can accept plaintiffs' position that the evidence was sufficient to persuade a rational jury that they in fact were qualified to "bump" in 1983, and that, under American's personnel regulations, they ought to have been allowed to do so. But again, no inference of age discrimination can rationally be drawn, because the employees whom American chose to retain in Little Rock, the ticket agents whom plaintiffs wished to "bump," were also in the same general age bracket as plaintiffs.[2] Not a single one of them was outside the protected age group, and Jim Hicks, the person who would have been "bumped" first, was 48 years old, almost the same age as the plaintiff Tarter. The three ticket agents who were permitted to remain in Little Rock, to be sure, had somewhat less seniority with the company than the plaintiffs (combined seniority of 57 years as opposed to plaintiffs' combined seniority of 84 years), and seniority may in some circumstances be a proxy for age for purposes of evaluating age discrimination. Here, however, that reasoning will not work, because, as already noted, the employees whom plaintiffs wished to displace were substantially the same age as plaintiffs themselves.

[*~659]7

In reviewing a judgment entered on the verdict of a jury, we are mindful that we must view the evidence in the light most favorable to the party winning the verdict, here plaintiffs, according them the benefit of every reasonable inference that can be drawn from the evidence, and setting aside the verdict only if the evidence points all one way. Dace, supra, 722 F.2d at 375-76. We have carefully read every page of the testimony at this trial, and we are persuaded that this stringent standard has been met. The jury could rationally have believed that plaintiffs ought in good conscience to have been permitted to stay in Little Rock, and that American had violated its own personnel practices in demanding their transfer, but there is absolutely no substantial evidence in this record that would justify attributing American's actions to plaintiffs' age.

8

We have considered Thornbrough v. Columbus & Greenville R.R., 760 F.2d 633 (5th Cir.1985), stressed by plaintiffs' counsel at the oral argument. In our opinion, the case does not stand for any proposition helpful to plaintiffs' position here. It states, for example, that "[i]n a reduction-in-force case, what creates the presumption of discrimination [created when plaintiff has made a prima facie case] is not the discharge itself but rather the discharge coupled with the retention of younger employees." Id. at 644. It is exactly this latter element--favoritism towards younger employees--that is missing here. See also Bell v. Gas Serv. Co., 778 F.2d 512 (8th Cir.1985); Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1163 (8th Cir.1985) (judgment on jury verdict reversed in reduction-in-force situation even though plaintiff's position was "combined ... with that of a younger man"). We add, in fairness to the District Court, that Bell and Holley were both decided after this cause was tried.

[*~660]9

The judgment is reversed, and the cause remanded with directions to dismiss the complaint with prejudice.

*

The Hon. John K. Regan, Senior United States District Judge for the Eastern District of Missouri, sitting by designation

1

The ages of the allegedly favored employees ranged from 46 to 54

2

The ages of these employees ranged from 45 to 48