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August 25, 1993

ROBERT E. MAY Plaintiff,

The opinion of the court was delivered by: LOUIS H. POLLAK

 Plaintiff Robert E. May was fired from his job as a Regional Manager *fn1" by defendant Hobart Corporation in January, 1991, at which time Mr. May was 52 years old. Hobart terminated plaintiff's employment during the course of a corporate reorganization and reduction-in-force (RIF) designed to improve customer relations and to revive the company's poor sales performance. Mr. May filed suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ยง 623, complaining that Hobart had not retained him during the RIF because it wanted to replace him with a younger employee. Following a trial, the jury found Hobart liable for age discrimination in firing Mr. May. Hobart now asks this court to grant its motion for a judgment as a matter of law pursuant to Fed. R. Civ. Proc. 50 and to overturn the jury's verdict. Alternatively, Hobart moves for a new trial under Fed. R. Civ. Proc. 59(a). Upon consideration of defendant's motions, I find that the standard for a judgment as a matter of law has not been met. I find, however, that the jury instructions were both improper under recent law and prejudicial to defendant. Accordingly, the motion for a new trial is hereby granted.

 The standard for granting a judgment as a matter of law is set forth in Fed. R. Civ. Proc. 50(a), which reads in relevant part as follows:

If during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against that party on any claim, counterclaim, cross-claim, or third-party claim that cannot under the controlling law be maintained without a favorable finding on that issue.

 Judgments as a matter of law include what used to be called directed verdicts and judgments notwithstanding the verdict (JNOV), the difference being whether the motion is brought before or after jury deliberations. Courts apply the same standard whether ruling on a JNOV motion -- which is in effect if not in terminology the instant motion -- or a motion for directed verdict. Keith v. Truck Stops Corp. of America, 909 F.2d 743, 744-45 (3rd Cir. 1990). It is clear from the case law and from Rule 50 that the standard for granting a JNOV is stringent. Indeed, the comments accompanying the 1991 amendment to Rule 50 make clear that the standard is designed to preserve "the court's duty to assure enforcement of the controlling law and is not an intrusion on any responsibility for factual determinations conferred on the jury." The rule authorizes the court to enter a judgment as a matter of law only when "it is apparent that either party is unable to carry a burden of proof that is essential to that party's case." Id. In so doing, the court must review the record in the light most favorable to the non-moving party to see if it contains "the minimum quantum of evidence from which a jury might reasonably afford relief." Keith, 909 F.2d at 744-45 (internal citations omitted).

 Plaintiff's prima facie case : In age discrimination actions under the ADEA, as under Title VII, the plaintiff must make out a prima facie case of discrimination. Billet v. Cigna Corp., 940 F.2d 812, 816 (3rd Cir. 1991). Mr. May's initial burden was to make such a prima facie case by showing (1) that when he was terminated he was over 40 years old, and therefore belonged to the protected class of employees under the ADEA; (2) that he was reasonably qualified for available positions; (3) that he was dismissed from Hobart despite these qualifications; and (4) that a person sufficiently younger than May to create an inference of age discrimination filled the position sought by May. See id. at n.3; Maxfield v. Sinclair Int'l, 766 F.2d 788, 791-92 (3rd Cir. 1985).

 The prima facie case creates a presumption that the defendant acted with an invalid discriminatory motive. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The burden then shifts to the defendant to offer a valid, nondiscriminatory explanation for the challenged action. Billet, 940 F.2d at 816. It is important to note that plaintiff at all times retains the burden of persuasion--defendant's burden at this point is simply to produce enough evidence to raise a genuine issue of fact as to whether it discriminated against the plaintiff. Id. Once defendant meets this burden of production, the presumption of discrimination drops out. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3rd Cir. 1987).

 At trial, May's prima facie case consisted of showings that he was 52 years old when Hobart fired him, that he was qualified based on past experience as a Regional Manager to be either a Foodservice or Food Retail Regional Manager, that despite successful previous performance in such a job he was fired, and that Scott Schumm, who was 34 years old at the time, was awarded a Regional Manager position. For purposes of this motion, I will accept the jury's finding that May proved each of the above elements by a preponderance of the evidence.

 Hobart further presented testimony by David Geiger. Geiger testified that May was generally viewed as a divisive force who was at odds with his peers within the company as well as with management at Hobart headquarters in Ohio. Geiger offered as specific examples three "poison pen" letters written by May, as well as an incident in which May allegedly accused his counterpart from another region of stealing a sale from him.

 With respect to the "Food Retail" (as opposed to "Foodservice") positions for which Mr. May was not considered, Hobart presented evidence that candidates were categorized at the outset as being on one side of the business or the other. Because of his qualifications and experience, the plaintiff was put in the Foodservice category, thereby removing him from consideration for Food Retail jobs. Hobart claims that "virtually all" Foodservice personnel were precluded from Food Retail consideration, and vice versa.

 Finally, Hobart presented evidence that in every case except for that of Scott Schumm, the persons selected for the Regional Manager posts were 40 or older, and therefore members of the ADEA protected class. The Mid-Atlantic Regional Manager, Mr. John Vollette, was six months older than May. Furthermore, when it came to choosing two sales representatives from three candidates, employees aged 65 and 52 were retained over one who was 42 years old. Some testimony was presented that the percentage of employees over 40 years of age was the same after the RIF as it was before.

 Based on the above, it seems clear that Hobart met the limited burden of production and explanation required to drop the initial presumption of discrimination from the case. I emphasize that at that point in the case Hobart did not have a burden of persuasion with respect to its proffered non-discriminatory explanation for firing May. Rather, the company only had to raise a genuine issue of fact as to discrimination. Burdine, 450 U.S. at 254. Hobart successfully met this burden.

 Plaintiff's evidence of pretext : Once Hobart met its burden of providing an explanation and supporting evidence of a non-discriminatory motive, May had two ways to proceed. One was to argue that defendant might have had some legitimate motivations for firing him, but that it would not have done so except for plaintiff's age. The case would then have proceeded as a "mixed-motive" case, with the plaintiff having to prove that discrimination played a determinative role, but not having to prove that the avowed legitimate motives were absent. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (in mixed-motive case "plaintiff must show that the employer actually relied on her gender in making its decision"). The alternative was to proceed under pretext analysis, in which the plaintiff tries to show that the employer's stated legitimate reasons for dismissal are false. Plaintiff thereby proves indirectly, through inferences drawn from the employer's lack of credibility, that he was the victim of intentional discrimination. Burdine, 450 U.S. at 256. May proceeded under pretext analysis, and emphasized evidence that Hobart's explanation for his firing was not worthy of credence.

 As a threshold matter, May argued that he was qualified for a Foodservice or a Food Retail Regional Manager position, citing prior experience as a Regional Manager and written evaluations from his supervisor at the time, Bert Natalicchio. He further showed that the job description for the reorganized Food Retail Regional Manager job was identical to that for the Regional Manager position that May had previously held. To undermine Hobart's contention that people were rigidly categorized as either "foodservice" or "food retail" personnel for RIF reorganization purposes, ...

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