Appeal from the United States District Court For the District of New Jersey. (D.C. Civil No. 88-cv-02906).
Before: Stapleton, Alito and Lewis, Circuit Judges.
STAPLETON, Circuit Judge :
This matter is an appeal and a cross-appeal from a jury verdict in favor of the plaintiff on his claim under the New Jersey Law Against Discrimination ("NJLAD") and in favor of the defendant employer on plaintiff's federal Age Discrimination in Employment Act ("ADEA") claim. The appeal and cross-appeal raise issues concerning the appropriate jury instructions in a pretext age discrimination case under New Jersey law, the appropriateness of certain evidentiary rulings, the sufficiency of the evidence, and the propriety of the awards for back-pay damages, attorneys' fees, and costs. We conclude that the district court did not err in instructing the jury as to the burden of proof required for the NJLAD claim, that any errors with respect to the district court's evidentiary rulings were harmless, that the evidence was sufficient to support the judgments, and that the district court did not abuse its discretion in failing to reduce the back-pay and attorneys' fees award. However, we conclude that the district court applied the wrong legal standard in determining the plaintiff's award of costs. We will therefore remand solely on that issue and affirm the district court in all other respects.*fn1
Bernard Abrams was employed by Lightolier, Inc. ("Lightolier" or "the employer") from January 1970 until his termination on July 3, 1986. Abrams was hired as a Manager of Physical Distribution. From 1982 through July 3, 1986, he was the Vice President of Coastal Fast Freight, an in-house trucking company and subsidiary of Lightolier. In 1981, Abrams organized a system for combining the purchasing power of a number of companies to obtain significant price reductions. He headed this system, known as Team Purchasing, from its inception until late 1985. During 1983 and 1984, Abrams was also given primary responsibility for negotiating real estate transactions for Lightolier. Abrams asserted that between 1982 and 1986, he received ample salary increases and bonuses. After returning to work following coronary by-pass surgery in the fall of 1985, Abrams claimed that Lightolier began to restrict his job responsibilities. On July 3, 1986, he was terminated. At that time he was fifty-nine years old. Abrams was replaced with a man whom he had hired, trained, and supervised. Abrams estimated that his replacement was about forty years old.
During his tenure with Lightolier, Abrams was responsible for dealing with Midland Transportation Company, Inc. ("Midland"),*fn2 a company that provided trucking services to Lightolier. In June 1980, Abrams orally agreed to modify the shipping rates in Lightolier's local contract with Midland. The companies performed under the oral modification until Midland sued Lightolier in 1982, claiming that it was being underpaid according to the terms of its written contract. Midland also claimed that Lightolier owed it detention charges for waiting periods caused by Lightolier's delay. During the Midland litigation, Lightolier learned that Abrams and two other employees, Richard Petit and John Zarkoski, had accepted various favors from Midland or its principals.*fn3 The Midland litigation was settled in late June 1986, just before the jury was to return its verdict. The Midland litigation cost Lightolier, in settlement and attorneys' fees, almost one million dollars.
Abrams was not terminated when Lightolier first learned of his failure to memorialize the oral modification, of his failure to avoid the detention charges, and of the favors he accepted from Midland. Instead, he was terminated on July 3, 1986, soon after the Midland litigation had settled. Michael Whelan, who had become president of Lightolier in 1985, informed Abrams of the termination. Both Petit and Zarkoski were terminated at that time as well. Abrams supervisor at the time of his termination was Richard Kurtz. Believing his termination was part of a campaign to eliminate older workers, Abrams filed charges with the New Jersey Civil Rights Division and the Equal Employment Opportunity Commission. Subsequently, Abrams also filed a civil action against Lightolier and various parent companies and subsidiaries,*fn4 alleging he was terminated because of his age in violation of the New Jersey Law Against Discrimination and the ADEA.*fn5 The parties consented to trial before a United States magistrate Judge. Prior to trial, the employer moved for summary judgment in its favor. The magistrate Judge granted summary judgment in part, dismissing Abrams's claim of disability discrimination under the NJLAD and dismissing one of the defendants, but denied the employer's motion for summary judgment as to the ADEA and NJLAD age discrimination claims. The employer also moved for an in limine order excluding certain evidence, which the district court granted in part and denied in part.*fn6
Trial was held before a jury. To support his contention that Lightolier terminated him because of his age, Abrams introduced evidence of prior age-based remarks made by Richard Kurtz, his supervisor at the time of his termination, as well as evidence that he was replaced by a younger employee, and evidence that other older employees at Lightolier had also been mistreated by Kurtz. Lightolier submitted evidence that Michael Whelan, the president of the company, communicated the termination decision to Abrams, that he, rather than Kurtz, was responsible for the Abrams's discharge, and that the reason for the discharge was Abrams's earlier misconduct in connection with the Midland contract.
The case was submitted to the jury as a pretext case, i.e. a case that does not qualify for special treatment under Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). However, the court submitted the NJLAD and ADEA claims to the jury under two different standards of proof. To prevail on the ADEA claim, Abrams had to show that age was the sole motivating factor for Abrams's discharge, while he could prevail on the NJLAD claim by showing that age was a determinative factor in the discharge decision. The jury responded to special interrogatories in the following manner. The jury found that the employer's reasons for its actions were pretextual; that age was not the sole motivating factor for Abrams's termination; that age was a determinative factor in his termination; that the employer was liable for back pay, future losses, and damages for pain and suffering, but was not liable for punitive damages under the NJLAD. The district court thus entered judgment in Abrams's favor on the NJLAD claim and in Lightolier's favor on the ADEA claim.
The employer moved for judgment as a matter of law or for a new trial on the ground that the evidence was insufficient to support the verdict against it and Abrams moved for an award of attorneys' fees. The magistrate Judge denied the employer's motion for judgment as a matter of law or for a new trial, but ordered a remittitur of all but $2500 of the $100,000 award for pain and suffering, finding Abrams had established mental distress damages only to that extent. Abrams agreed to the remitter and an amended order for judgment against the employer was entered in the amount of $473,953.45. The magistrate Judge awarded Abrams attorneys' fees in the amount of $546,379.59 and costs of $240.00. Lightolier filed a timely notice of appeal from the amended order entering judgment in Abrams's favor on the NJLAD claim and the order denying its motion for summary judgment on the ADEA and NJLAD claims. Abrams filed a protective cross-appeal as to the amended order entering judgment in the employer's favor on the ADEA claim and cross-appealed as to the order awarding him costs.
Lightolier's arguments on appeal fall into three general categories: arguments relating to (1) the appropriate standard of proof in a pretext case of age discrimination under the NJLAD, (2) evidentiary rulings and the sufficiency of the evidence, and (3) the amount of back-pay damages and attorneys' fees awarded. Abrams cross-appealed as to the award of costs and also filed a protective cross-appeal on the ground that in the event the case is remanded for a new trial, his ADEA claim should be submitted to the jury under the mixed-motives standard of proof. Because we conclude that the instructions as to the NJLAD claim were proper and that the magistrate Judge's evidentiary rulings do not require reversal, we need not reach the issue raised by Abrams regarding the standard of proof for his ADEA claim. Because we conclude that the magistrate Judge applied the correct standard in instructing the jury as to the back-pay award and in awarding attorneys' fees, but did not apply the correct standard in determining the award of costs, we will remand solely as to the issue of costs.
III. Standard of Proof Under the NJLAD
In instructing the jury as to Abrams's burden for establishing Lightolier's liability for his discharge, the magistrate Judge explained that the standard of proof under the NJLAD and ADEA claims differed, stating:
As to the federal cause of action . . . it is the Plaintiff's burden to prove, by a preponderance of the credible evidence, that his age was the sole motivating factor for the Defendant's decision to terminate his employment. . . .
Under the terms of the state claim, Mr. Abrams must prove by a preponderance of the evidence that age was a determinative factor in the employment decision. In is not necessary under New Jersey law against discrimination that age be the sole motivating factor. If discrimination on the basis of age made the difference in the decision, then discrimination in violation of the statute has been established.
In other words, Plaintiff must prove that but for his age he would not have been discharged.
All right? So under the state law, Plaintiff, again, must prove by a preponderance of the credible evidence, it is his burden of proof, that age was a determinative factor in the employment decision.
It is not necessary under the state law claim that age be the sole motivating factor. That's the difference.
In answering special verdicts, the jury found that Abrams had proven that the employer's reasons for his discharge were pretextual and that age was a determinative factor in Lightolier's decision to discharge him. The jury also found that Abrams had not proven that age was the sole motivating factor for his discharge. The magistrate Judge therefore entered judgment in Abrams's favor on the NJLAD claim and in Lightolier's favor on the ADEA claim.
In instructing the jury that Abrams was required to prove that age was the sole motivating factor in order to succeed on the ADEA claim, the magistrate Judge believed he was following the decision of this court in Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993). The magistrate Judge did not adopt that standard for the NJLAD claim, however, concluding that the New Jersey Supreme Court would not necessarily follow the higher standard of proof he understood Griffiths to require. Instead, the magistrate Judge concluded that the New Jersey Supreme Court would continue to require a showing that age was a determinative factor in the adverse employment decision.
This court sitting in banc recently clarified the proper standard of proof for an ADEA pretext case in Miller v. CIGNA Corp., 47 F.3d 586, (3d Cir. 1995). There we stated that "in ADEA cases that do not qualify for a burden shifting charge under Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), district courts should instruct the jury that the plaintiff's burden is to prove that age played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process." Miller, at *3, __ F.3d at __. We also noted that to the extent that Griffiths v. CIGNA could be read to require an ADEA plaintiff to prove that age was the sole motivating factor for the adverse employment action, it was overruled. Id. at *29 n.8, __ F.3d at __ n.8.
Our review over the issue whether jury instructions misstate a legal standard is plenary. Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989) (citations omitted); United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 906 (1985), and cert. denied, 474 U.S. 906 (1985), and cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985). Our task is to "'determine whether the charge, taken as a whole and viewed in light of the evidence, fairly and adequately submits the issue in the case to the jury.'" Adams, 759 F.2d at 1116 (quoting Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.), cert. denied, 432 U.S. 907, 53 L. Ed. 2d 1079, 97 S. Ct. 2952 (1977)). Because New Jersey courts in applying the NJLAD generally follow the standards of proof applicable under the federal discrimination statutes, see McKenna v. Pacific Rail Service, 32 F.3d 820, 827 (3d Cir. 1994) (predicting that the New Jersey Supreme Court would adopt the clarification for proving a federal pretext discrimination case set forth in St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), to claims arising under the NJLAD); Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 570 A.2d 903, 907 (N.J. 1990), we agree with Abrams that the New Jersey Supreme Court would likely adopt our holding in Miller as the proper standard of proof for an age discrimination pretext claim under the NJLAD. The magistrate Judge's instructions as to that claim were therefore proper.*fn7 While we note that the instructions as to the ADEA claim may have required Abrams to demonstrate more than he was required to under the appropriate standard, Abrams has not cross-appealed on that ground and we therefore leave the judgment undisturbed as to the ADEA claim. Because Abrams filed only a protective cross-appeal as to his ADEA claim, and because we conclude below that none of the other grounds for reversal urged by Lightolier have merit, we do not reach Abrams's argument that his ADEA claim warranted an instruction under the standard of proof applicable to mixed-motives Price-Waterhouse cases.
Lightolier argues that the magistrate Judge erred in admitting certain evidence proffered by Abrams and in excluding certain evidence that it sought to introduce. We find that the evidence was properly ruled upon, or if it was admitted or excluded in error, that it did not affect a substantial right of Lightolier in this case. The district court's evidentiary rulings therefore provide no basis for reversing the jury verdict in this case. See Fed. R. Civ. P. 61.*fn8 We also reject Lightolier's contention that the evidence does not support the verdict against it and we therefore conclude that the district court properly denied Lightolier's motion for judgment as a matter of law.
Lightolier takes issue with a number of evidentiary rulings made by the magistrate Judge prior to and during trial. Two of these rulings concern the admission of age-based comments by Lightolier executives. A related ruling concerns the testimony of other Lightolier employees who claimed to have been the subject of age-based employment decisions by one of those decisionmakers. Another ruling concerns the admission of charts prepared by Abrams to represent Lightolier's internal ...