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November 19, 1992

WESTON CONTROLS, A Division of Fairchild Weston Systems and Schlumberger Ltd. Defendant

The opinion of the court was delivered by: RICHARD P. CONABOY

 The Plaintiff began her employment at Defendant's plant in Archbald, Pennsylvania on April 13, 1956 and continued in that employment until her termination on November 11, 1986.

 On August 12, 1988, the Plaintiff filed a three-count complaint against the Defendant, alleging causes of action pursuant to (1) the Age Discrimination and Employment Act; (2) Title VII of the Civil Rights Act, alleging sex discrimination; and (3) a pendent state tort claim alleging negligent misrepresentation. The Defendant filed an answer denying liability on February 13, 1989.

 On August 20, 1991, the Plaintiff filed a Motion to Bifurcate the Title VII claim from the Age Discrimination and state tort claim actions. The Defendant opposed the bifurcation and eventually a stipulation was entered into that all issues would be tried to a jury.

 After a considerable amount of discovery, the issues in the case were joined. Extensive settlement discussions ensued, but were futile and trial began on September 24, 1991. On September 30, 1991, the jury entered an award for the Plaintiff on all three counts, awarding her a total of $ 548,652.00. *fn1" Following the entry of judgment on the verdict, on October 10, 1991, the Defendant filed a Motion for Judgment Notwithstanding the Verdict or in the alternative a Motion for a New Trial. Thereafter, Defendant also filed a Motion for a Remittitur. *fn2" Following allowance for time to receive the transcripts of the testimony in the case, the parties have fully briefed the motions. *fn3"

 In the interim following the verdict award, the parties have engaged, with the assistance of the Court, in extensive settlement discussions. However, the Court was recently informed that these discussions have failed to develop an amicable resolution and, thus, we will dispose of the motions by this Opinion.

 Because we find there was an abundance of evidence in the record on which the jury's verdict was based and because we find no errors in the trial meriting the grant of judgment N.O.V. or a new trial or a remittitur, we will deny the Defendant's motions.


 Because we must look at the facts of the case in a light most favorable to the verdict winner, and because we find the record supports the factual recitation submitted by the Plaintiff, we will adopt and repeat here the Plaintiff's factual submission as constituting the pertinent factual background submitted to and apparently believed by the jury.

 On November 10, 1986, Plaintiff Joan Palmiero was terminated from her employment as a manufacturing supervisor for Weston Controls, a Division of Fairchild Weston, a subsidiary of Schlumberger, Ltd. (Vol. 1, p. 62). Plaintiff was 54 years of age at the time of her termination and had been employed by the Defendant for in excess of 30 years. (Vol. 1, p. 60). At all times during the her employment up until the time of her termination, her work performance was satisfactory or better. (Vol, 1, p. 43).

 Defendants primarily performed assembly work at their Archbald facility Working with various electronics, circuit boards or equipment. (Vol. 1, p. 43). The assembly line that Plaintiff supervised for in excess of 25 years of her total employment of 31 years was known as the potentiometer line ("Pots"). (Vol. 1, p. 60).

 During the early 1980s, the parent company, Schlumberger, Ltd. made a decision to transfer the assembly line of potentiometer (both commercial and military) from their wholly owned subsidiary Fairchild Weston to another wholly owned subsidiary known as Sangamo Weston. (Vol. IV, p. 109). At the aforementioned time, a decision was made to establish a commercial line assembly of potentiometer in Juarez, Mexico. (Vol. IV, p. 109). Plaintiff, although remaining on the payroll at the Archbald facility, worked a considerable period of time at the Juarez facility between the years 1981 and 1984 as a supervisor on the potentiometer line. (Vol. III, p. 99). Upon successful establishment of the Juarez potentiometer line, Plaintiff was then requested by her Archbald employer to assist in the movement of the military potentiometer Line from the Archbald facility to the Sangamo Weston facility in Pickens, South Carolina. (Vol. III, p. 101). Plaintiff remained at the Pickens, South Carolina facility as supervisor in 1986. (Vol. III, p. 112).

 Upon her return to the Archbald facility in June, 1986, Plaintiff was assigned as a supervisor on the newly created Syossett line. (Vol. 3, p. 114). At the time Plaintiff commenced employment on the Syossett line, there were three assemblers. (Vol. 3, p. 115). Several months later, at the time of her termination in November of 1986, Plaintiff had increased the production on the line to a point where 25 employees were assigned as assemblers. (Vol. III, p. 117). Plaintiff's work performance on the Syossett line was satisfactory or better at all times. (Vol. III, p. 118). On November 11, 1986, Plaintiff was called to the personnel office and was informed by the operations manager, Joe Kuenzig, as well as personnel director at the time, Gary McKinney, that Plaintiff's services with the company would no longer be needed. (Vol. III, p. 122). When Plaintiff inquired as to why she was being terminated, she was informed that her duties as a supervisor would be assumed by Harry Jenkins and Carl Martini; both of whom were not within the protected class. (Vol. III, p. 127). In the Answer to Plaintiff's Complaint, as well as during the course of depositions and other discovery, and also stated during trial, Defendants have advanced three reasons as to why Plaintiff was terminated rather than one of the other two male, younger employees (Martini and Jenkins). First, Defendants contend that a significant reduction of the work force was occurring at the Archbald facility in November, 1986. (Vol. I, p. 163). Secondly, Defendants contend that Martini and Jenkins had superior educational requirements which factored into the decision. (Vol. I, p. 164). Third, Defendants contend that Martini and Jenkins has superior technical skills to supervise the relevant assembly lines within the Archbald facility. (Vol. I, p. 164).

 At the time of trial, Plaintiff submitted the testimony of Joan Palmiero to establish her prima facie case with respect to both the age and sex claims as well as the negligent misrepresentation claims. (Vol. I, p. 59-61). Plaintiff testified at the outset of the trial that on November 11, 1986, her job performance was satisfactory, that she was terminated and that she was replaced by two men who are not within the protected class, Jenkins and Martini. (Vol. I, p. 61). Additionally, Plaintiff presented testimony as to representations made by the former plant manager at the Archbald facility, Ray Sterling, as well as a former personnel director, Joe Owens, that Plaintiff would have a job available to her upon the completion of her duties in Juarez and Pickens and upon the elimination of the potentiometer line. (Vol. I, p. 162). Plaintiff also testified that she relied upon this representation in guiding her employment decision making process. (Vol. 1, p. 62). Defendants then presented their testimony in an attempt to articulate a legitimate non-discriminatory reason for the termination. Defendants first called the plant manager at the time of Plaintiff's termination, Edward Moody. (Vol. I, p. 136). Moody testified that he has been employed at the facility since 1980. (Vol. I, p. 136). Mr. Moody testified that the two primary consideration given to the retention of the two younger male employees over the Plaintiff were job skills and education. (Vol. I, p. 164). Mr. Moody testified that no objective testing was performed to determine the relative job skills of the three individuals. (Vol. I, p. 100). Furthermore, upon cross examination, Mr. Moody was not able to articulate the particular skills which he believed Joan Palmiero lacked that the other two male individuals allegedly had possessed. (Vol. 1, p. 186). Furthermore, Mr. Moody testified that he was not aware that Joan Palmiero had previously been certified to work on the IBM assembly line. (Vol. p. 191).

 Mr. Moody further testified that the organization had to replenish their work force. (Vol. 1, p. 203). Furthermore, he indicated that the organization kept statistics on the average age of the work force and that the organization would have to become lean and mean. (Vol. 1, p. 203). Furthermore, in his subjective judgment, Harry Jenkins was a "young comer" within the organization. (Vol. I, p. 200). Mr. Moody testified that Jenkins was encouraged for his pursuing a college degree within the organization. However, Mr. Moody acknowledged that no job analysis was ever performed to relate a college degree with any of the supervisory or any other management position within the organization. (Vol. I, p. 204). Moody also acknowledged that Schlumberger, the parent company, was directing their subsidiaries to hire individuals who were "fresh out" of college. (Vol. I, p. 204).

 Moreover, although Mr. Moody implied on direct examination that the company was going through a significant reduction in work force, the documented evidence in the EEO reports indicated that the size of the work force in the 1984 report was 836, in the 1985 Report 879 and in the 1986 report 909. (Vol. I, p. 197). Also, Mr. Moody implied that the company was loosing significant revenues during this period, the evidence in fact indicated that in 1980, the amount of revenues at the Archbald facility were $ 50,000,000 and in 1986 at the time of Joan's termination were up to $ 58,000,000. (Vol. I, p. 205).

 Defendant next presented the testimony of the operations manager Joe Kuenzig by way of deposition in light of the fact that Mr. Kuenzig had passed away prior to the time of trial. Mr. Kuenzig testified that he had been employed at the Weston facility for only six months prior to Joan's termination. He testified that the IBM assembly line had been building the same components for years, that Mr. Jenkins assemblies were "not complex" and that Joan's work performance was well on the Syossett line. He further testified that he became aware that Archbald was to go through a reduction in force in April 1986 and that early retirement was a part of this reorganization. Furthermore, he testified that the company in considering the termination of Joan, was looking down the road for Jenkins and Martini.

 Defendants next presented the testimony of William Ratchford who was manufacturing manager at the time of Joan's termination. (Vol. II, p. 117). William Ratchford testified that he had been an assembler on the potentiometer lines until 1978. (Vol. II, p. 113). He had no accredited schooling nor any technical training. (Vol. II, p. 113). In 1980, Mr. Ratchford went to Juarez, Mexico as a manufacturing manager of the potentiometer line. (Vol. II, p. 113). He testified that he, as well as Mr. Marra and other supervisors on the potentiometer line, had an agreement that there would be a job available for them upon their return to the Archbald facility. (Vol. II, p. 119). When Mr. Ratchford returned to the Archbald facility in 1985, he assumed the position as a manufacturing manager of the IBM line. (Vol. II, p. 119). Mr. Ratchford had no prior experience on the IBM line as Joan Palmiero had. (Vol. II, p. 119). Mr. Ratchford testified that when he returned to the Archbald facility in 1986, his salary was $ 36,000. His salary at the time of his termination was $ 55,000. (Vol. II, p. 125).

 Mr. Ratchford further testified that there were no job descriptions for any supervisors on the IBM line. (Vol. II, p. 126). Mr. Ratchford further testified that Joan would have had a problem on the IBM line but was not able to articulate the nature of the problem that she would have had on the line. (Vol. II, p. 131). Finally, Mr. Ratchford testified that he was not consulted regarding Joan's termination contrary to the testimony of Mr. Moody, Penzek and McKinney. (Vol. II, p. 125). Defendants next presented the testimony of John Laboranti who was the plant manager of the Juarez facility. (Vol. II, p. 154). Mr. Laboranti testified that he was a sheet metal mechanic in 1977 at the Archbald facility and was the plant manager of the Juarez facility through the year 1972. (Vol. II, p. 158). Mr. Laboranti indicated that the company wanted to develop his talents and that the company was grooming Mr. Laboranti for management positions. (Vol. II, p. 162). Upon his return from the Juarez facility, the parent company, Schlumberger, offered him a position with the parent organization. (Vol. II, p. 164). Also, Mr. Laboranti testified that Joan Palmiero's work performance at the Juarez facility was excellent. (Vol. II, p. 157).

 Defendant next presented the testimony of Gary McKinney, the personnel director at the Archbald facility at the time of Plaintiff's termination. (Vol. II, p. 15). Mr. McKinney had testified that it was the policy of the parent company, Schlumberger, to transfer personnel director from one subsidiary corporation to another every two years in order to implement the Schlumberger personnel policy. (Vol. II, p. 16). He further testified that the parent organization requested reports from the subsidiaries concerning statistics (age) in relation to the work force. (Vol. II, p. 17). With respect to any reduction in force, Mr. McKinney indicated that the personnel department did not perform an analysis to determine if a reduction in force would have an adverse impact on the protected class, either age or sex. (Vol. III, p. 34). Furthermore, Mr. McKinney indicated that there was no skills analysis performed upon the work force, that skills were transferable among the various assembly lines, that there were no updated job descriptions, that the lions share of the business of Fairchild Weston was with the federal government in defense contracts and as a result the federal money mandated affirmative action. (Vol. III, p. 22-36). Furthermore, Mr. McKinney indicated that the EEO reports required that opportunities be developed for female employees and that the only affirmative action that he had given to Joan Palmiero was to "try to keep the facility in business". (Vol. III, p. 35).

 Defendants next witness was the personnel director at the time of trial, Barbara Chruschiel. Ms. Chruschiel testified that a review of Carl Martini's performance appraisals at the time of Joan's termination indicated that he had problem areas in adaptability and ability to work under pressure. (Vol. III, p. 61). Furthermore, she conceded that management had a plan for development for Carl Martini at the time of Joan's termination. (Vol. III, p. 63). Furthermore, she confirmed that the job descriptions for supervisors at the Archbald facility were outdated. (Vol. III, p. 64). Plaintiff then called Diane Bracey, a woman in her 20s, who testified that she was an assembler on Pots and rose to the level a supervisor on the IBM line without any special training in electronics. (Vol. III, p. 70-72). Joan Palmiero testified as to her employment history with the organization, her position as electrical assembler on the potentiometer line. (Vol. III, p. 85, etc.). She detailed the type and models of the various potentiometer for which she assembled. (Vol. III, p. 85, etc.). She rose from the position of an assembler to that of a group leader. (Vol. III, p. 86). In 1965, Joan was promoted to a supervisor on the, potentiometer line. (Vol. III, p. 86). Furthermore, during that time she worked on the IBM line for approximately one and one-half years. (Vol. III, p. 86) Joan testified that in 1980 she went to Juarez, Mexico as a supervisor. (Vol. III, p. 92). She further testified that she was surprised and disappointed that Mr. Ratchford was going to Juarez as a manager and she was not considered for the position. (Vol. VII, p. 93). She testified that she had learned Spanish in order to assist the Mexican assemblers in the production of the potentiometer. (Vol. III, p. 95). Further, she testified that in 1984, while on assignment in Juarez, she learned through Mr. Ratchford that the military end of all the potentiometer was going to be moved to Pickens, South Carolina. (Vol. III, p. 102).

 Plaintiff next called an economist, Dr. Harriet Zellner, to project Plaintiff's loss of earning but for the discriminatory termination. (Vol. IV, p. 20, etc.). Dr. Zellner projected Plaintiff's earning streams but for the termination, from the date of termination to the date of trial and from the date of trial to age 65. (Vol. IV, p. 32). The economist then factored in a downward adjustment of the stream to reflect present value. (Vol. IV, p. 40). The economist also calculated a downward reduction taking in the possibility that Plaintiff might leave the labor force prior to age 65 and also might pass away prior to age 65. (p. 41). The economist testified that he opinions were extremely conservative because of the mortality probabilities and the labor force withdrawal probabilities. (Vol. IV, p. 42). The economist also projected an earning stream that plaintiff will receive from her new employer, Gentex, to age 65. (Vol. IV, p. 42). Plaintiff's economist calculated Plaintiff's conservative back pay award to be in the amount of $ 150,926. (Vol. IV, p. 40). The front pay award was calculated in the amount of $ 196,800. (Vol. IV, p. 64).

 Plaintiff then called as a final witness, Joseph Owen, the personnel director at the Archbald facility during the year 1984. Owen testified that he was 38 at the time of Joan's termination. (Vol. IV, p. 107). He also testified that in the year 1984, in addition to announcing the phasing out of the potentiometer line, a new company policy was implemented regarding early retirement known as "the rule of 85". (Vol. IV, p. 112). Also, during the same time period Schlumberger had a practice of hiring individuals into the organization that were "fresh out" of college. (Vol. IV, p. 112). Finally, Mr. Owens testified that the job description regarding the IBM line had not changed in over 20 years. (Vol. IV, p. 125). Upon a return of verdict, the jury found that age was a determining factor in the Defendants decision to terminate Plaintiff's employment. Furthermore, the jury found that the Defendant wilfully discriminated against the Plaintiff on the basis of her age. Further, the jury found that sex made a difference in Plaintiff's promotion but not in her termination or salary. The jury then awarded back pay in the amount of $ 150,926, front pay in the amount of $ 196,800 and liquidated damages in the amount of $ 150,926. Finally, the jury found that the Defendant negligently misrepresented that Plaintiff would remain employed at the Archbald facility upon completion of her duties in Juarez, Mexico and Pickens, South Carolina and awarded her $ 50,000 in damages for this negligent misrepresentation.

 The Defendant's position against the Plaintiff's claim is succinctly set forth in Defendant's brief, page 6, as follows:

 It is Weston Controls contention that the termination of the Plaintiff was motivated by sound business judgment. The Plaintiff's sex and/or age had no effect whatsoever on the Defendant's decision to termination the Plaintiff. As the weight of evidence showed at trial, not only was the Plaintiff terminated due to the economic realignment of the Archbald plant, but also due to the Plaintiff's lack of transferable skills needed for a supervisory position on the IBM line. Moreover, the Plaintiff refused a good faith offer of employment at the Pickens facility, where her supervisory skills on the potentiometer line made employment possible. Of course, the Plaintiff did not have a promise of lifetime employment. As a result, Weston Controls maintains that no damages were proper in the instant case.

 The jury obviously rejected the Defendant's contentions and found the credible evidence merited a verdict in her favor.

 At the close of the testimony in this case the Defendant filed a Motion for Directed Verdict and at that time based the motion on two arguments: (1) that the Plaintiff failed to establish a prima facie case; and (2) that the totality of the evidence failed to show that a discriminatory reason motivated the employer's conduct with respect to age or sex in the Plaintiff's termination. The motion was denied. In pressing the post-trial motions, the Defendant attempts to expand considerably on these items preserved at trial.


 The parties make similar references and generally agree on the procedural guidelines to be followed in considering the motions in this case.

 Rule 50 of the Federal Rules of Civil Procedure provides in pertinent part as follows:

 (a) Motion for Directed Verdicts: When made; effect . . . a Motion for Directed Verdict shall state the specific grounds therefor.

 (b) Motion for Judgment Notwithstanding the Verdict. Whenever a Motion for Directed Verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.

 A party who has properly moved for a directed verdict, may move to have the verdict and any judgment entered thereon set aside, and to have judgment entered in accordance with that party's Motion for a Directed Verdict. A Motion for a New Trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the Court may allow the judgment to stand or may reopen the judgment and either order a new trial of direct the entry of judgment as if the requested verdict had been directed. Thus, a Motion for Judgment Notwithstanding the Verdict may be granted even though the Motion for a Directed Verdict was originally denied.

  In Kutner Buick, Inc. v. American Motors Corporation, 868 F.2d 614 (3d Cir. 1989), the Court held "the rule that a post-trial Rule 50 motion can only be made on grounds specifically advanced in a Motion for a Directed for a Verdict at the end ...

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