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Starceski v. Westinghouse Elec. Corp.

filed: May 3, 1995.

JOHN D. STARCESKI, APPELLANT AT NO. 94-3208
v.
WESTINGHOUSE ELECTRIC CORPORATION, APPELLANT AT NO. 94-3182



Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil Action No. 91-cv-00454).

Present: Stapleton, Hutchinson and Garth, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

Appellant/cross-appellee Westinghouse Electric Corporation ("Westinghouse") appeals an order of the United States District Court for the Western District of Pennsylvania denying Westinghouse's post-trial motion for judgment notwithstanding the verdict,*fn1 a new trial or a remittitur of damages on appellee/cross-appellant John D. Starceski's ("Starceski") claim for violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. § 621 et seq. (West 1985 & Supp. 1994). Starceski cross-appeals other parts of the same order that denied his motions for pre-judgment interest and reinstatement.

We will affirm the district court's denial of Westinghouse's post-trial motions. The record is not critically deficient of evidence from which a jury might have reasonably found that Westinghouse discriminated against Starceski because of age, nor does it appear that the district court abused its discretion in refusing Westinghouse's motions for a new trial or remittitur. We also reject Westinghouse's objections to the district court's Price Waterhouse "mixed-motives" instruction and its challenge to the jury's finding it willfully discriminated against Starceski.

On Starceski's cross-appeal from the denial of his motions for pre-judgment interest and reinstatement, we will vacate the district court's order denying Starceski's motion for pre-judgment interest and remand for the purpose of calculating the interest due and adding it to his judgment; but we will affirm the district court's refusal to grant him reinstatement. An award of pre-judgment interest together with an award of liquidated damages is not a double recovery. The two serve different purposes and work together to facilitate the ADEA's "make-whole" purpose. Finally, we hold that the district court did not err in concluding that reinstatement is inappropriate under the circumstances.

I. Statement of Facts and Procedural History

In April 1989, Westinghouse terminated Starceski from his senior engineer position after thirty-six years of service. When terminated, Starceski was about one month short of his sixty-fourth birthday.

Starceski worked for Westinghouse from 1951 to 1953 and from 1956 to March 1981 as an engineer in its Bettis Atomic Power Laboratory.*fn2 In March 1981, Westinghouse transferred him to its Nuclear Services Division ("NSD"). There he was responsible, among other things, for the design, building and upgrading of tools to repair reactor components in nuclear power plants. In early 1985, Starceski began reporting to Richard Saul, a first-level supervisor, whom Westinghouse terminated in February 1989. Starceski thereafter reported directly to Ali Jaafar, the second-level manager who had been Saul's supervisor.

In late 1988, Jaafar received a directive to reduce his staff by about eighteen people during the following year. Saul testified that, in an October 1988 staff meeting, Jaafar directed the first-level managers to transfer work from older to younger employees and to rank employees by their value to the group. According to Saul, Jaafar also instructed him to "doctor" Starceski's evaluation to reflect poor performance. Starceski stated that once these orders were given, he was not given any new assignments and work was also taken away from other older colleagues, sometimes immediately after being assigned to them.

In March 1989, Starceski and five other engineers were informed that their services were no longer needed. Five of these six were in ADEA's protected age group. Their average age was fifty-one. The average age of the remaining engineers in the department was thirty-nine. The youngest member of the six was ultimately retained by Westinghouse, along with others who ranked lower than Starceski in performance according to Saul's evaluation.

On March 13, 1991, Starceski filed this action against Westinghouse alleging that it terminated him on the basis of age in violation of the ADEA. Westinghouse stipulated that Starceski's job performance was not a factor in his layoff, but contended that it was part of a reduction in force and a lack of work for persons with Starceski's skills. The district court initially granted Westinghouse's motion for summary judgment, but Starceski appealed to this Court, and we reversed and remanded the case for trial. Starceski v. Westinghouse Electric Corp., 993 F.2d 879 (3d Cir. 1993).

On February 11, 1994, a jury returned a general verdict awarding Starceski compensatory damages of $267,268.55. Immediately after the jury's verdict was announced, counsel for Starceski requested reinstatement. The district court denied this request. It then charged the jury on willfulness. The jury found that Westinghouse had willfully discriminated against Starceski on the basis of age. This doubled Starceski's compensatory damages giving him an award totalling $651,910.68 after counsel fees and costs were added.

Post-trial, Starceski asked for the addition of pre-judgment interest and reinstatement. Westinghouse, on the other hand, filed a motion it called a "motion for judgment n.o.v."*fn3 or, in the alternative, a new trial or remittitur. The district court denied Westinghouse's motions and Starceski's request for pre-judgment interest and reinstatement. This timely appeal and cross-appeal followed.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction over this case under the ADEA, 29 U.S.C.A. § 621 et seq. We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West 1993).

In reviewing a district court's ruling on a post-trial motion for judgment as a matter of law, this Court applies the same standard as the district court. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citations omitted); Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992). We view the record in the light most favorable to the verdict winner, and affirm the denial "'unless the record "is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief."'" Rotondo, 956 F.2d at 438 (quoting Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir. 1980), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 and Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969)); Keith v. Truck Stops Corp. of America, 909 F.2d 743, 744-45 (3d Cir. 1990) (citations omitted); Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921 (3d Cir. 1986). In other words, the court must determine whether a reasonable jury could have found for the prevailing party. Newman v. Exxon Corp., 722 F. Supp. 1146, 1147 (D. Del. 1989), aff'd, 904 F.2d 695 (3d Cir. 1990).

In reviewing a district court's denial of a motion for a new trial or remittitur, we ask generally whether the district court abused its discretion, but if the court's denial of the motion is based on application of a legal precept, our review is plenary and, in addition, any findings of fact on which the court's exercise of discretion depends are reviewed for clear error. See Rotondo, 956 F.2d at 438 (citing Link, 788 F.2d at 921).

III. Discussion

Westinghouse raises several challenges to the district court's denial of its post-trial motions. It asserts that (1) the district court improperly gave the jury a so-called "mixed-motives" instruction, see Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989); (2) the district court erred in upholding the jury's finding that Westinghouse had failed to sustain its Price Waterhouse burden of proving that Starceski would have been terminated regardless of his age; (3) there was insufficient evidence to uphold the jury's finding of a willful ADEA violation; and (4) a remittitur was necessary because there was insufficient evidence to support the jury's damages award.

On his cross-appeal, Starceski argues that the district court should have granted his motion for pre-judgment interest and reinstatement. We will first discuss Westinghouse's arguments and then Starceski's cross-appeal.

A. Pretext and "Mixed-Motives"

Before submitting the case to the jury, the district court determined that Starceski provided sufficient direct evidence to support a claim of age-based disparate treatment requiring a Price Waterhouse, or so-called "mixed-motives" instruction, rather than a McDonnell Douglas/Burdine, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and 450 U.S. 248 (1981), pretext instruction.*fn4 Westinghouse contends that the decision of the district court to charge the jury on "mixed-motives" was not in accord with the law and, because of its timing, substantially prejudiced Westinghouse. We disagree.

In Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir.) (quotation omitted), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993), overruled on other grounds, Miller v. CIGNA Corp., 47 F.3d 586, 1995 WL 21907 (3d Cir. 1995) (in banc), we stated that a charge on a "mixed-motives" theory of employment discrimination requires "conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude."*fn5 See also Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992), cert. denied, 126 L. Ed. 2d 56, 114 S. Ct. 88 (1993). More recently, in Armbruster v. Unisys Corp., 32 F.3d 768 (3d Cir. 1994), we made the following observations concerning the difference between a McDonnell Douglas/Burdine pretext case and a Price Waterhouse "mixed-motives" case:

In a [mixed-motives] case unaffected by the Civil Rights Act of 1991, the evidence the plaintiff produces is so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case [as is necessary in a pretext action] to shift the burden of production. Both the burden of production and the risk of non-persuasion are shifted to the defendant who . . . must persuade the factfinder that[,] even if discrimination was a motivating factor in the adverse employment decision, it would have made the same employment decision regardless of its discriminatory animus.

32 F.3d at 778 (citing Price Waterhouse, 490 U.S. at 244-46 and Griffiths, 988 F.2d at 469-70 and n.12) (emphasis added). See also Miller, at * 24, * 25, 1995 WL 21907, at * 7. In her concurrence in Price Waterhouse, Justice O'Connor offered guidance on the type of evidence needed to make out a "mixed-motives" case. She reasoned:

Stray remarks in the workplace, while perhaps probative of [a discriminatory animus], cannot justify requiring the employer to prove that its [employment] decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard; . . . What is required is . . . direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.

Price Waterhouse, 490 U.S. at 277 (O'Connor, J., Concurring) (emphasis added) (internal citation omitted); Armbruster, 32 F.3d at 778.

In applying this standard to Starceski's case, we are drawn at once to the testimony of Saul, who was once Starceski's first-level manager at Westinghouse. Saul testified that Jaafar, a second-level manager responsible for the layoff decision affecting Starceski, gave orders to him and other supervisors under him//--in preparation for a work force reduction directed by higher management//--to consider age in the assignment of work. Saul specifically testified that Jaafar, at a meeting concerning the impending reduction, told the first-level managers to transfer work from older to younger employees. Saul also testified that he discussed Jaafar's comments with other managers after the meeting and they took Jaafar's statements as an order to set up older employees for termination in the impending work force reduction. Saul said "it was actually a fact that the older engineers or the senior people [were] going to be let go in '89." Joint Appendix ("App.") at 446. Saul also testified that Jaafar instructed him to "doctor" Starceski's performance appraisals so that they would reflect poor performance. These directives from Jaafar to Saul and other first-level managers are precisely the kind of evidence that is needed to indicate "that [the] decisionmakers [involved here] placed substantial negative reliance on an illegitimate criterion [i.e., age] in reaching their [termination] decision." Price Waterhouse, 490 U.S. at 277 (O'Connor, J., Concurring); Hook v. Ernst & Young, 28 F.3d 366, 375 (3d Cir. 1994) (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1186-87 (2d Cir.), cert. denied, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992)).*fn6

In Hook, we quoted with approval the following passage from the Second Circuit's opinion in Ostrowski v. Atlantic Mutual Insurance Companies :

"Purely statistical evidence would not warrant [a Price Waterhouse 'mixed-motives'] charge; nor would evidence merely of the plaintiff's qualification for and availability of a given position; nor would 'stray' remarks in the workplace by persons who are not involved in the pertinent decisionmaking process. . . . If however, the plaintiff's nonstatistical evidence is directly tied to the forbidden animus, for example[,] policy documents or statements of a person involved in the decisionmaking process that reflect a discriminatory or retaliatory animus of the type complained of in the suit, that plaintiff is entitled to a burden-shifting instruction."

28 F.3 d at 374 (quoting Ostrowski, 968 F.2d 171, 182 (2d Cir. 1992)); see also Glover v. McDonnell Douglas Corp., 981 F.2d 388, 394 (8th Cir. 1992) (statements demonstrating that a work force reduction was "designed, in part, to eliminate older employees," entitled plaintiff to a mixed-motives charge), vacated on other grounds, 114 S. Ct. 42 (1993). Because Starceski introduced evidence of this type, the district court did not err in giving the jury a "mixed-motives" instruction. Cf. Hook, 28 F.3d at 375 (finding sexual comments by plaintiff's supervisor insufficient for a "mixed-motives" charge because they had nothing to do with plaintiff's job performance and were unrelated to the adverse decision process challenged in the case).

We disagree, however, with the sweeping statement of the court of appeals in Glover that:

as a general rule, we should expect that all successfully prosecuted age discrimination cases involving a reduction in force would involve mixed-motives because the plaintiff would be alleging the employer had both a legitimate reason (the economic need to reduce the workforce) and ...


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