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March 31, 1982


The opinion of the court was delivered by: POLLAK

Plaintiff Frank Trainer ("Trainer") brought this action to recover damages, claiming that the defendant, Philadelphia National Bank (the "Bank") had, in terminating his employment, discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). *fn1" The trial of plaintiff's claim was bifurcated pursuant to an agreement of counsel and trial on the issue of liability commenced before an eight-person jury on August 17, 1981. At the close of plaintiff's evidence and again at the close of all evidence, the defendant moved pursuant to Federal Rule of Civil Procedure 50(a) for a directed verdict and the court in both instances reserved its decision on the motions. Following the trial, the jury returned a verdict for plaintiff, finding the Bank liable under the ADEA. The defendant has moved pursuant to Federal Rules of Civil Procedure 50(b) and 59 for judgment notwithstanding the verdict and, alternatively, for a new trial.

At the outset, a brief review of the basic outlines of Trainer's tenure with the Bank is necessary. Trainer was employed by the Bank from May 16, 1955 until May 1, 1979-the date of his discharge. In 1968, Trainer was promoted to banking officer status and served as the branch manager at the Trooper Branch office. Trainer became manager in December 1970 of a newly opened branch at Village Green, located in the Bank's Southwestern Region. During the period from 1970 to 1976, while Trainer continued to manage the Village Green branch, he received periodic salary increases and his job performance was generally considered to be good, according to the Bank's employee evaluation reports and the audit reports for his branch.

 In April 1976, John Rusnak was named Regional Vice-President for the Bank's Southwestern Region. After a period of exposure to the region, Mr. Rusnak decided upon several assignment changes for various management personnel within the region. Rusnak planned to reassign Trainer to the Primos-Secane branch and assign Richard Hood, another Bank employee, to the Village Green branch. After learning of the Bank's proposed transfer, Trainer was decidedly dissatisfied with the new assignment and, at least in the view of his superiors, his conduct opposing the planned reassignment disrupted operations at the Village Green branch.

 Ultimately, Mr. Hood was assigned to the Primos-Secane branch; another bank employee, Mary Davis, replaced Trainer as bank manager at Village Green; and Trainer was reassigned as a "floater." In this capacity, he moved around to various branch offices in different regions, providing assistance to those offices which were short-handed or substituting for employees who were on vacation. This arrangement continued until September 1978. Trainer's status as a banking officer was maintained; he was, however, only occasionally performing duties normally performed by an officer. Apparently, because of Trainer's "floater" status, the Bank no longer provided plaintiff with the same formal evaluations of his job performance after 1976 that he had been receiving, although his supervisors did discuss his performance with him informally during the period from his reassignment to "floater" status in 1976 until his termination in 1979.

 Trainer was still officially assigned to the Southwestern region when Mary Louise Lilius replaced John Rusnak as Regional Vice President for that region. In order to determine whether Trainer's probationary "floater" status should be ended and whether he should be assigned to some permanent position within the Bank, Ms. Lilius decided to assign Trainer on a temporary basis to the Bank's Bankcard Sales Department-an assignment which was to last for approximately six months. During the two-year period in which Trainer had served as a floater, several reports of unsatisfactory performance had been filed by supervisors for whom he worked. In describing to Trainer the Bankcard Sales assignment, Ms. Lilius recited the problems with his recent record and explained that the new assignment was to give him a fresh start and that, therefore, he was expected to turn in a strong performance.

 Trainer began work as a Bankcard Salesman in September, 1978. After a period of evaluation, the Bank decided in April, 1979, to terminate Trainer's employment, citing his failure to perform in the temporary Bankcard assignment up to expectations, his performance problems as a floater, and certain irregularities which had been discovered concerning his management of the Village Green branch. Trainer's discharge became effective on May 1, 1979.

 Generally, in considering a motion for judgment notwithstanding the verdict, a trial court must view the evidence in the light most favorable to the party against whom the motion is made and must give that party the benefit of all reasonable inferences. And in determining whether there is sufficient evidence to raise a question of fact for the jury, a trial court may not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury. If the evidence is such that reasonable minds may reach different conclusions, then the jury's verdict must be left undisturbed. Nevertheless, the federal courts do not follow the rule that a "scintilla of evidence" is enough to survive a motion for judgment notwithstanding the verdict. The proper question is not whether there is literally no evidence supporting the party against whom the motion is made but whether there is evidence upon which the jury could properly find a verdict for that party. See Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978); Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir. 1978); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).

 As stated earlier, Trainer's claim is brought under the Age Discrimination in Employment Act which prohibits an employer from discharging an employee "because of (his) age." 29 U.S.C. § 623(a)(1). Thus, in order to recover under the ADEA, a plaintiff has the ultimate burden of proving that his age was "a determining factor" in the decision to discharge him. See Smithers v. Bailar, 629 F.2d 892, 896-98 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1009 (1st Cir. 1979).

 In the absence of any direct evidence that age was a factor in the Bank's decision to terminate him, Trainer undertook at trial to present a prima facie case of age discrimination. Under this approach, a plaintiff sets out to establish the general circumstances under which he was discharged in order to justify an inference of illegal discrimination. See Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 919 (2d Cir. 1981). This method of proving a prima facie case under the ADEA is borrowed from doctrine developed under Title VII of the Civil Rights Act of 1964. Because of the similarities of purpose and language in these two statutes, courts have held that the order and allocation of burdens of proof which govern cases arising under Title VII are generally applicable to age discrimination cases. See Smithers v. Bailar, supra, 629 F.2d at 894. Thus, under the ADEA and Title VII, the presentation of proof follows three procedural steps:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reasons for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

 Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981) (citations omitted).

 In cases where the plaintiff alleges that his employer's decision to discharge him was motivated by age discrimination, he must prove the following four elements to establish a prima facie case:

1. that he was a member of the statutorily protected age group-i.e., ...

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