a large amount of business preventing the lapsing of policies while also soliciting new business.
Kull testified that, prior to the commencement of this lawsuit, he had no knowledge of the ADEA. This testimony would support several conflicting inferences. One who has no knowledge of the ADEA might be more likely to discriminate on the basis of age because he or she does not know that such discrimination is against the law. One who has no knowledge of the ADEA might be less likely to commit a willful violation of the Act on the basis that he or she knew that his or her conduct was prohibited by the Act, but more likely to commit a willful violation on the basis that he or she showed reckless disregard for the matter whether his or her conduct was prohibited by the Act. Finally, a jury could believe that a person professing no knowledge of the Act is simply lying, and such testimony could support an inference of willful violation.
In sum, weighing all of the evidence, including that discussed above, there is ample evidence to support the jury's verdict finding age discrimination and a willful violation of the ADEA. To the extent defendant seeks a new trial or judgment notwithstanding the verdict on the basis that discrimination was not proved and that there was insufficient evidence of willfulness, defendant's motions must be denied. This was a classic example of a case with evidence adequate to support a verdict for either plaintiff or defendant. The jury weighed the evidence and reached its verdict, and there is no basis for overturning its decision.
Defendant contends that plaintiff cannot recover for a violation the ADEA because he was not an "employee" protected by the Act. Defendant admitted in its answer to the complaint, in deposition testimony read into the record at trial and in its pretrial memorandum read into the record at trial that plaintiff was employed by defendant. These admissions preclude defendant from asserting now that plaintiff was an independent contractor and not an employee.
Defendant also contends that the court should have held that defendant could not recover damages for any period after his last contact with another insurance company about employment because defendant failed to mitigate damages after that point. The issue of mitigation was appropriately submitted to the jury. Certainly plaintiff's efforts to mitigate damages go beyond his contact with other insurance companies. He increased his hours on his second job at the Philadelphia Inquirer, and did so to such a successful degree that the jury awarded only $177 in front pay. The jury appropriately determined the amount of damages taking into account plaintiff's duty to mitigate and his obtaining alternate employment.
Finally, the defendant contends that the court erred in its instructions to the jury regarding willfulness of an ADEA violation. The instruction to the jury followed the precise language approved by the Supreme Court in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985). The defendant did not object to that instruction. Defendant's objection at this point is barred under Federal Rule of Civil Procedure 51. Regardless of that procedural bar, it is clear there was no error.
For the reasons stated above, all of defendant's post trial motions will be denied. In addition, defendant's counsel will be required to pay plaintiff's expenses incurred with respect to his motion to strike or dismiss defendant's post trial motions.
Upon consideration of defendant's motions for judgment notwithstanding the verdict, for a new trial and/or to amend the verdict and plaintiff's motion to strike or dismiss defendant's post trial motions and all supporting and opposing memoranda of law, for the reasons stated in the accompanying memorandum,
It is Ordered that:
(1) defendant's motion for judgment notwithstanding the verdict is denied;
(2) defendant's motion for a new trial is denied;
(3) defendant's motion to amend the verdict is denied; and
(4) defendant's counsel shall pay plaintiff three hundred and fifty dollars ($350) in expenses incurred with respect to plaintiff's motion to strike or dismiss defendant's post trial motions, provided that either party may, within five (5) days of the date of this order, file a request for a hearing to determine the amount of reasonable expenses in the event that it believes the figure of $350 is inappropriate.
It is further Ordered that if no request for a hearing is filed, the $350 shall be paid within twenty (20) days of the date of this order. It is further Ordered that defendant's counsel shall not directly or indirectly pass the cost of this sanction on to his client.
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