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Bartek v. Urban Redevelopment Authority

argued: March 3, 1989.

JOSEPH P. BARTEK
v.
URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, APPELLANT NO. 88-3463; JOSEPH P. BARTEK, APPELLANT NO. 88-3485 V. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH



On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil Action No. 84-2788.

Higginbotham, Stapleton and Cowen, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This is both an appeal and cross appeal from the judgment of the district court awarding compensatory and liquidated damages in an age discrimination suit. Upon our review of the record, we find sufficient evidence to support a jury finding of discrimination. We find, however, insufficient evidence to support a jury finding of willful discrimination. Accordingly, we will affirm that part of the district court's judgment order awarding compensatory damages, but will vacate that portion of the judgment order awarding liquidated damages.

I.

Joseph P. Bartek ("Bartek") brought this suit under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (1982 & Supp. IV 1986) ("ADEA"), against his employer, the Urban Redevelopment Authority of Pittsburgh, Pennsylvania ("URA"), a quasi-governmental agency that receives substantial federal funding through the Department of Housing and Urban Development.

In his amended complaint, Bartek, then age 65, alleged that he began his employment with URA in 1964 as a cost estimator, and was promoted in 1966 to the position of Deputy Director of the Housing Rehabilitation Department. In March, 1979, the Executive Director of the URA, Paul Brophy ("Brophy"), informed Bartek that his position was being eliminated for budgetary reasons, and that he had the choice of resigning or taking a subordinate position. Bartek alleged that he took the latter option conditional upon his being fairly considered for a promotion in the future, and that the URA had subsequently denied him certain job promotions on the basis of his age in violation of the ADEA.

Issues of liability were tried before a jury. Upon answering special interrogatories, the jury returned verdicts in favor of Bartek on three of the seven counts in his complaint. With respect to count I, the jury found that the URA willfully discriminated against Bartek in its promotion of Mary Marquis Evenson ("Evenson") to Administrator of the Mortgage/Home Improvement Loan Program ("HILP") on January 3, 1984. With respect to count V, the jury found that URA willfully discriminated against Bartek in its promotion of Evenson to Residential Finance Section Manager on January 1, 1985, in its promotion of Joseph Pivarnik ("Pivarnik") to Manager of the Multi-Family Program in January, 1985, and in its promotion of Joseph Fiori ("Fiori") to Administrator of the Agency/Emergency Loan Program on April 8, 1985. Finally, with respect to count VI, the jury found that URA willfully discriminated against Bartek in its promotion of John Posteraro ("Posteraro") to Manager of the Multi-Family Program on July 1, 1985.

As per agreement of the parties, the damages phase of the trial was conducted without a jury. Bartek proffered evidence to the court on the positions held by Evenson. Since the jury had found that Bartek was discriminated against in January 1984 when the URA promoted Evenson to Administrator of Mortgage/HILP and in January 1985 when the URA promoted Evenson to Residential Finance Section Manager, the court assumed, for purposes of calculating damages, that Bartek would have held these positions. Moreover, the court found that, although Evenson resigned in August 1985 and was not replaced, her position remained in the URA's administrative budget through the end of 1986, when it was eliminated as a result of the URA's restructuring. Consequently, the court awarded Bartek the difference between his salary and that of the Administrator of Mortgage/HILP in 1984, and that of the Residential Finance Section Manager in 1985 and 1986. That sum equalled $20,928. The court then awarded Bartek statutory liquidated damages, in the amount of his back pay, to reflect the jury finding that the URA had willfully violated the ADEA. See 29 U.S.C. § b626(b). Bartek's total award was $41,856.

Subsequently, the URA filed motions for a judgment notwithstanding the verdict, new trial, remittitur of liquidated damages, and stay of the enforcement of the judgment pending appeal. Bartek also filed a motion to alter or amend the judgment. The district court denied both parties' motions, and these timely appeals followed. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (1982).

II.

A.

The URA's principal contention on appeal is that the district court erred in denying its motion for judgment notwithstanding the verdict since there was no evidence upon which the jury could have found that it violated the ADEA. We review a district court's denial of a motion for judgment notwithstanding the verdict to determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict. Kinnel v. Mid-Atlantic Mausoleums, Inc., 850 F.2d 958, 961-62 (3d Cir. 1988).

The ADEA broadly proscribes discrimination against any individual over 40 with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a); see Id. § 631(a) (Supp. IV 1986). To recover, "a plaintiff must prove by a preponderance of the evidence that age was the determinative factor in the employer's decision." Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256 (3d Cir. 1986) (citation omitted).

In allocating the burdens of proof in an ADEA suit alleging disparate-treatment on the basis of circumstantial evidence, we follow the formula enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), for cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982). See Chipollini v. Spencer Gifts, Inc., 814 ...


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