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July 28, 2000


The opinion of the court was delivered by: Hart, United States Magistrate Judge.


On January 25, 2000, after a five day trial, the jury returned a verdict for the plaintiff in this age discrimination suit and awarded the plaintiff $519,068 in damages.*fn1 Presently before the court is the defendant's Motion for Judgment as a Matter of Law or in the Alternative New Trial or in the Alternative Remittitur. For the reasons that follow, the defendant's motion will be Denied.

I. Facts

The plaintiff worked as a technician for Sears, repairing appliances in customers' homes, for 22 years before his termination in 1996. Throughout the trial, Sears contended that Mr. O'Neill was terminated for falsifying time records regarding the customer service stops he made on his route in North Philadelphia and the time he completed his work on March 7, 1996. The plaintiff presented testimony that it was customary that technicians working in the North Philadelphia area would forego their breaks and lunch and complete the required paperwork after leaving the "sensitive" area in order to minimize risks to the technicians and equipment. (N.T. 1/19/2000, vol. 1, 63-64; 1/19/2000, vol. 2, 92-93; 1/20/2000, 209-211). The plaintiff brought this suit claiming that age played a determinative role in his termination, based on statements made to him at the time of his discharge. In addition Mr. O'Neill presented evidence that two younger, less-experienced technicians, who had handled their work in North Philadelphia in a similar manner, were retained.

II. Mixed Motives Charge

The defendant claims that the evidence presented at trial was insufficient to warrant a mixed motives charge. Where the plaintiff possesses direct evidence of discrimination, he may pursue a "mixed motives" theory of recovery. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

Prior to trial, Sears argued that Mr. O'Neill was not entitled to proceed under a mixed motives analysis. However, relying on Mr. O'Neill's deposition testimony, the court denied the defendant's motion. In his deposition, Mr. O'Neill recounted a conversion with George Finlayson, his district manager, in which Mr. Finlayson stated, "you're 55 [years of age] and [have] 20 [years of service], so we're terminating you." (O'Neill Deposition, at 58-60). In this court's opinion, we found such a statement akin to other "quintessential" examples of direct evidence of discrimination, warranting a mixed motives charge. O'Neill v. Sears, No. 97-3767, Memorandum and Order, 1/10/2000, at 6.

Although Mr. O'Neill's recitation of the conversation was not quite as damning at trial, we again conclude that the testimony, if believed by the jury, was sufficient to qualify as direct evidence of discrimination, warranting a Price Waterhouse charge. At trial, Mr. O'Neill testified that at a March 18 meeting, Mr. Finlayson asked him "are you 55 and 20 or are you ready to retire?" (N.T. 1/19/2000, 14). In addition, the jury heard testimony from the plaintiff recounting a March 25, 1996, telephone call he received from Mr. Finlayson, during which Mr. Finlayson asked Mr. O'Neill if he was 55 years old and if he had 20 years of service with Sears. (N.T. 1/19/2000, 16-17). When Mr. O'Neill responded affirmatively, he testified that Mr. Finlayson then said, "Well, we decided to terminate you." (N.T. 1/19/2000, vol.1, 17, 84). Although Mr. Finlayson did not remember the telephone conversation, he did remember asking Mr. O'Neill if he was old enough to retire at the March 18 meeting. (N.T.1/19/2000 — vol.2, 39).

The Third Circuit has held that direct evidence required for a Price Waterhouse charge is "conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting a discriminatory attitude." Hankins v. City of Philadelphia, 189 F.3d 353, 364 (3d Cir. 1999) (citing Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1090 (3d Cir. 1995)). According to Mr. O'Neill, the only conversation had between him and Mr. Finlayson, during the telephone call when Mr. O'Neill was informed of his termination, involved his age and years of service. Moreover, Mr. Finlayson's announcement of Sears' decision to terminate plaintiff was made immediately after Mr. O'Neill answered "yes" to Mr. Finlayson's questions about plaintiff's age and years of service. To require a grammatical connector such as "well, in the case" to precede Mr. Finlayson's statement would be like writing the word "horse" under a picture of a horse. Thus, if his testimony was believed, Mr. O'Neill was given no other reason for his termination at that time other than a combination of his years of service and his age. Mr. Finlayson's statements "may be viewed as directly reflecting a discriminatory attitude."

In instructing the jury, the court left the ultimate determination to the fact-finders.

I instruct you that a statement made to the plaintiff by a person with decisionmaking authority can constitute the necessary direct evidence of age discrimination; however, it will be up to you to decide exactly what Mr. Finlayson said to Mr. O'Neill, whether such statements were motivating factors in Sears' decision and what role Mr. Finlayson played in Sears [sic] decision to terminate the plaintiff.

(N.T. 1/24/2000, 98).

Sears argues that Mr. Finlayson's questions regarding Mr. O'Neill's age and years of service were for the purpose of determining Mr. O'Neill's pension eligibility. Such a termination, Sears contends, does not violate the ADEA. "A termination resulting from an age correlated factor is not a termination because of age." Armbruster v. Unisys Corporation, 32 F.3d 768, 780 (3d Cir. 1994) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)).

The Supreme Court's decision in Hazen Paper is inapposite. In Hazen Paper, the employee was terminated just prior to vesting in the pension plan and the Court found that termination to prevent such vesting, while violative of ERISA, did not violate the ADEA. "[A] decision by the company to fire an older employee solely because he has nine-plus years of service and therefore is `close to vesting' would not constitute discriminatory treatment on the basis of age." Hazen Paper, at 604, 113 S.Ct. 1701. Additionally, vesting in the Hazen Paper pension plan had no age component, requiring only ten years' of service. "Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily `age based.'" Id.

The question posed in our case, however, does depend on age combined with years of service. Hazen's holding, therefore, is not controlling in this case. In fact, a situation like the present case, was specifically excluded from the Supreme Court's holding in Hazen Paper. "[W]e do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service." Id. Finally, as indicated above, Mr. Finlayson's question about plaintiff's age and years of service was asked and answered only seconds before Mr. Finlayson announced Sears' termination decision — a far different fact scenario than was present in Hazen Paper.

Similarly, Sears' reliance on the Third Circuit's decision in Armbruster is misplaced. In fact, the Third Circuit's evaluation of the age related comment in Armbruster actually lays a foundation for the plaintiff's argument that Mr. Finlayson's comments did constitute direct evidence of a discriminatory animus. Rather than addressing the question left unanswered in Hazen Paper, (whether termination to eliminate an age based pension would violate the ADEA), the Third Circuit held that a comment regarding the plaintiffs' ages and salaries, "fifty and fifty," did not constitute direct evidence of discriminatory animus because the statement was not attributable to a "decision maker," and was too remote in time from the alleged discriminatory activity. Armbruster, at 778. By avoiding the discrimination issue on the basis that the statement came remote in time from a non-decision maker, the court in Armbruster left open the issue presented in this case. Here, the plaintiff provided ample evidence to establish Mr. Finlayson's input into the decision making process for him to qualify as a decision-maker, (N.T. 1/19/2000, vol. 2, 17; 1/20/2000, 17-181 1/21/2000, 19), and the statement was made during the very conversation when Mr. O'Neill was told that his employment was terminated.*fn2

Since the plaintiff presented evidence of statements that could be viewed as evidencing a discriminatory attitude, made by a decision-maker, at the time the plaintiff was terminated, we properly included a direct evidence charge, allowing the jury to decide if Mr. Finlayson's alleged statements evidenced the requisite discriminatory attitude.

III. Testimony of John Brown

Federal Rule of Civil Procedure 37(c)(1) provides the sanctions for failing to comply with the rules governing the ...

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