The opinion of the court was delivered by: MAURICE B. COHILL, JR.
Before the Court are (1) a Motion in Limine (Doc. 25), and (2) a Motion For Leave to Amend Pretrial Statement (Doc. 24) filed by plaintiff David P. Martincic. In the motion in limine, plaintiff asks us (1) to admit into evidence a report that provides statistical data with respect to plaintiff's claim of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 629 et seq. (ADEA); and (2) to instruct the jury, as an evidentiary presumption, that defendant refused to promote qualified candidates over the age of 40 because personnel records were destroyed by defendant.
In the motion for leave to amend, plaintiff seeks to amend his pretrial statement to include (1) a purported expert's report, and (2) a claim for salary-differential damages dating back to December 9, 1988. For the reasons below, we will deny plaintiff's motion in limine in its entirety, and deny plaintiff's leave to amend in its entirety.
This is an action for failure-to-promote age discrimination under the ADEA. Plaintiff David Martincic was born on July 11, 1946 and was hired by defendant Urban Redevelopment Authority of Pittsburgh (URA) on February 19, 1980 as a Construction Advisor in its Housing Department, a position he presently retains. Plaintiff's primary responsibility is to prepare home-improvement specifications for homeowners who receive loans through URA's home repair programs. Plaintiff also performs home inspections during the construction and recommends payments to contractors.
On September 1, 1991, Stephen Leeper, Director of the Housing Department, announced a department reorganization in which Larry Landy, then age 39, was named Design and Construction Manager and placed in charge of all construction personnel. Mr. Landy had been hired by URA as a Construction Advisor on September 23, 1985. On July 11, 1988, Mr. Landy was promoted to Senior Rehabilitation Advisor, a position for which the plaintiff also applied but was not selected. Mr. Landy was subsequently promoted to Senior Rehabilitation Supervisor on April 3, 1989. The plaintiff had applied, and was rejected, for this position.
A. Statistical Report of Mr. Jay K. Jarrell
Plaintiff seeks to admit evidence at trial in the form of a report by Mr. Jay K. Jarrell, who is an "Accredited Personnel Diplomate" and "Certified Personnel Consultant." Mr. Jarrell's report is based on various URA internal personnel documents, including URA regulations, the URA Affirmative Action Program, job descriptions, payroll records, and summaries of personnel actions. In his report, Mr. Jarrell "noted 62 personnel actions between January 15, 1988 and June 1, 1993 that involved more than a simple grade or title change." Plaintiff's Motion for Leave to Amend Pretrial Statement at 4. We are not told what the personnel actions were.
Mr. Jarrell reported the following observations: (1) in 51 of the 62 actions, the "chosen" candidate -- we are not told for what candidates were chosen, but we assume they were chosen for promotions -- was under age 40; (2) in 9 of the 51 cases, there were unchosen candidates who were over age 40, but in 34 other cases the ages of the unchosen candidates were not known (Mr. Jarrell does not indicate the ages of the candidates in the 8 remaining cases); and (3) in 24 actions involving jobs at grade level 7 or above, all of the chosen candidates were under age 40; Mr. Jarrell was not able to determine if there were any candidates over age 40 in 20 of these 24 cases.
Mr. Jarrell admits that in most of the 62 actions, he was unable to determine whether there were any candidates over age 40. Thus, he referred to demographic data of Allegheny County, Pennsylvania, which indicate persons age 40 and older outnumber those between ages 20 and 39 by roughly 3 to 2. His conclusion was that the defendant therefore must have refused to promote candidates over age 40.
Mr. Jarrell readily concedes in his report that he could not tell whether there even were candidates over age 40 available in most of the 62 "personnel actions." Thus, we do not know whether the defendant promoted under-40s because those were the only candidates available. Nor do we know if any over-40 candidates were offered, but declined, promotions. And because we are not told what personnel actions Mr. Jarrell had in mind, we do not know whether they were promotions from entry level positions which, we assume, ordinarily go to younger workers. Finally, the leap to Allegheny County census data to infer that many over-40s were passed over for promotion is simply too attenuated to be of any value. At a minimum, statistical comparison must be between the age composition of the at-issue jobs and the age composition of the qualified population in the relevant labor market. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989); Faulkner v. Super ...