The opinion of the court was delivered by: REED
In the course of a reduction-in-force, Unisys Corporation ("Unisys") terminated the employment of the fourteen plaintiffs named in this case. These plaintiffs allege that Unisys targeted them for termination because of their age and attempted to mask its discrimination by selecting them for a new work group, called Customer Technical Services Project Management Organization ("CTS/PMO"), which Unisys created for older persons it intended to terminate. The district court granted summary judgment in favor of Unisys on the claims of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the claims of discrimination under section 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140. The plaintiffs appealed the order granting summary judgment in favor of Unisys with regard to the ADEA claim only. The Court of Appeals for the Third Circuit affirmed the order of the district court to the extent that the district court had found the evidence of record insufficient to support a mixedmotives discrimination theory of liability. Armbruster v. Unisys Corp., 32 F.3d 768, 781 (3d Cir. 1994). However, the Court of Appeals reversed the order of the district court relating to the pretext framework for discrimination, stating that the evidence of record, when viewed in the light most favorable to plaintiffs, created a genuine issue of material fact as to whether the plaintiffs were transferred or terminated because of their age. Id. at 783-84.
During the summary judgment proceedings, the plaintiffs proffered a comment by Robert Markell ("Markell"), a Unisys Vice President, allegedly made at a meeting to discuss labor costs on April 19, 1990. According to two plaintiffs who attended the meeting, Markell stated: "This company cannot afford to keep people over 50 and 50," meaning those employees over 50 years of age who were earning over $ 50,000 annually. The district court found the statement inadmissible double hearsay under Fed. R. Evid. 801(d)(2)(D) and Fed. R. Evid. 805 because the plaintiffs could not identify the individual member of upper management who gave Markell this impression. See id. at 775. Markell himself was not a decisionmaker involved with the transfers or the terminations of plaintiffs and had left Unisys four months before the CTS/PMO group was created, and there was no evidence connecting the proffered comment to any other decisionmaker associated with the plaintiffs' transfers into or terminations from the CTS/PMO group. Id. Thus, the district court concluded that the Markell statement did not qualify as an admission by a party opponent. In addition, the alleged comment by Markell was made several months before plaintiffs were transferred into the CTS/PMO group. Id.
The Court of Appeals for the Third Circuit affirmed the evidentiary ruling of the district court with regard to the purported comment by Markell. The Court of Appeals stated:
Markell's alleged statement is not attributable to a decisionmaker connected with the CTS/PMO employment decisions and is too remote in time from the creation of the CTS/PMO to constitute overt evidence to show Unisys had a discriminatory animus towards older employees. . . . Thus, the district court correctly determined Markell's statement did not constitute overt evidence of discriminatory animus.
Id. at 779 (citations omitted). In a footnote the Court of Appeals affirmed the district court ruling that Markell's statement was inadmissible double hearsay under Fed. R. Evid. 801(d)(2)(D) and Fed. R. Evid. 805. Id. at 779 n.16.
On remand, the plaintiffs once again attempt to introduce the Markell statement as evidence to support their claims of discrimination under the ADEA. Plaintiffs contend that the statement is admissible for the purpose of demonstrating Markell's opinion as to Unisys company policy toward older employees. Pending before this Court is the motion in limine of Unisys to preclude the admission into evidence of the Markell statement (Document No. 34). For the reasons set forth below, the motion of Unisys will be granted.
Unisys contends that the law of the case doctrine precludes the admission of the Markell statement. Discussing the doctrine, the Court of Appeals for the Third Circuit has stated:
It is axiomatic that on remand for further proceedings after decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.
Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985) (citations omitted). According to Unisys, the district court is bound by the ruling of the Court of Appeals that the Markell statement is inadmissible double hearsay and insufficient to constitute overt evidence of discriminatory animus. See Armbruster, 32 F.3d at 779 & n.16. Plaintiffs submit, however, that the law of the case doctrine does not bind this Court because the Court of Appeals did not render the Markell statement inadmissible for all purposes. Plaintiffs proffer the Markell statement to demonstrate Markell's opinion as to Unisys company policy regarding its treatment of older workers in the context of a pretext theory of liability. It appears that in their brief to the Court of Appeals, plaintiffs previously offered the Markell statement for this purpose. See Brief of Appellants/Plaintiffs at 27 (the "statement could easily be inferred to be simply [Markell's] understanding and pronouncement of company policy"). However, the published opinion of the Court of Appeals does not expressly review the admissibility of the Markell statement on this basis. See Armbruster, 32 F.3d at 779. I do not believe that the law of the case doctrine binds this Court because the plaintiffs made this argument in their brief, without any indication from the Court of Appeals that it made a finding or conclusion on this specific issue.
Assuming the law of the case doctrine does not apply, this Court must determine whether Abrams v. Lightolier Inc. serves as controlling precedent for the admissibility of the Markell statement as the opinion of Markell regarding Unisys company policy. See Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995). In Abrams, the Court of Appeals for the Third Circuit found that the district court did not abuse its discretion when it admitted into evidence the statement of a non-decisionmaker supervisor for the purpose of demonstrating the opinion of an agent of the company regarding the company's policy toward older workers. See id. at 1215-16. Milton Hinsch ("Hinsch"), a former purchasing manager, testified that his supervisor, Douglas Pedder ("Pedder"), stated on several occasions, usually at the time of a performance review, that "the company frowned on older people." Id. at 1215. Although neither Hinsch nor Pedder were decisionmakers involved with the termination of the plaintiff in Abrams, the district court permitted the testimony of Hinsch to demonstrate the opinion of Pedder regarding company policy. Id. at 1216. Because "a subordinate's account of an explanation of ...