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ZAMPINO v. SUPERMARKETS GEN. CORP.

April 21, 1993

Michael V. Zampino, Plaintiff,
v.
Supermarkets General Corporation, Defendant.



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 On February 4, 1993, a jury found defendant in this action liable for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. ┬ž 621 et seq. ("ADEA") after a nine day trial. In answering the Special Interrogatories submitted to them by the Court, the jury calculated an award of $ 35,000.00 for back pay and $ 227,000.00 for front pay in the event that the Court found reinstatement not feasible. Hence, the Court must now determine whether to award reinstatement or front pay to compensate plaintiff for his future damages.

 For the reasons stated in the accompanying memorandum, I find that the reinstatement of plaintiff Michael Zampino to his former position with defendant Supermarkets General Corporation is not feasible. I shall therefore amend the civil judgment order entered in this action on February 5, 1993 to include an award of $ 227,000.00 in future damages.

 I. INTRODUCTION

 Plaintiff Michael Zampino has been employed by defendant Supermarkets General Corporation from approximately January, 1964 through the present in various positions. In June of 1987, plaintiff was informed that he would be demoted from the position of Product Manager of the Dairy and Deli (or "Appy") Departments in the Southern Division to the position of Assistant Store Manager, which he holds to this day. Plaintiff's salary was not reduced when he was demoted to Assistant Store Manager, but he was told that he would have to attain a performance rating of two or above in that position to maintain his salary. Because he did not achieve this rating, his salary was reduced on February 4, 1990 and then again on May 6, 1990. At the time of these reductions, plaintiff was fifty years old. Plaintiff's demotion ultimately resulted in a reduction in his salary and job level from L-26 to L-17.

 After hearing nine days of testimony addressing the circumstances surrounding plaintiff's demotion and his employment record before and after that demotion, the jury found that age was a determining factor in defendant Supermarkets General Corporation's decisions regarding plaintiff's employment status in violation of ADEA. *fn1" The jury found that plaintiff suffered losses as a result of this violation amounting to $ 35,000.00 in past damages. The jury also found that plaintiff's future damages, or front pay, would amount to $ 227,000.00 if plaintiff did not continue his employment with defendant, a sum which would be awarded only if the Court finds that reinstatement is not feasible.

 Defendant argues that reinstatement is the preferred remedy in age discrimination cases absent "unconscionable difficulties," Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393 (3d Cir.), cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702 , 105 S. Ct. 592 (1984), and is the proper remedy in this case. Defendant contends that no credible evidence adduced at trial supports the conclusion that reinstatement is not feasible in this case. *fn2" Plaintiff claims that reinstatement is not feasible because a suitable and comparable position no longer exists with defendant and even if it did, the level of hostility between plaintiff and defendant is such that reinstatement would merely promote continued disharmony.

 II. DISCUSSION

 A. Legal Standards

 Although a combination of back pay and reinstatement is the preferred remedy in ADEA cases, front pay is proper when reinstatement is not feasible. Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert. denied, 474 U.S. 1057 , 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). Reinstatement may not be feasible if there is no position available at the time of judgment or if the relationship between the parties has been so damaged by animosity that reinstatement is impracticable. Id.; Whittlesey v. Union Carbide Corp., 742 F.2d 724 (2d Cir. 1984). Since reinstatement is an equitable remedy, it is the district court that should decide whether reinstatement is feasible. Maxfield, 766 F.2d at 796.

 Although the exact position from which an ADEA plaintiff has been unlawfully removed need not be available to enable proper reinstatement, a substantially comparable position must be available. See Sinclair v. Ins. Co. of North America, 609 F. Supp. 397 (E.D. Pa. 1984), aff'd, 782 F.2d 1029 (3d Cir. 1986). Further, even if a comparable position exists, reinstatement is not feasible where continued disharmony exists between the parties which would require the policing of an ongoing relationship. Goss v. Exxon, 747 F.2d 885 (3d Cir. 1984). Where the record reflects hostility and animosity between the parties which would obviously breed an unsatisfactory employment atmosphere, reinstatement would not be an adequate remedy to make plaintiff whole as envisioned by ADEA. Maxfield, 766 F.2d at 796. When reinstatement proves to be an inadequate remedy, front pay should be granted. Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 604 F. Supp. 962, 966 (E.D. Pa. 1985)

 Therefore, the two questions I must answer are (1) does the evidence show that the position from which plaintiff was unlawfully demoted, or a comparable position, currently exist, and (2) if so, is reinstatement to that position precluded by the level of hostility and animosity between the parties? Pursuant to my Order of February 5, 1993, the parties have briefed these ...


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