the court informed defense counsel that Mr. Brown's testimony
would be permitted and that he could depose Mr. Brown before he
was called to testify. Mr. Brown did not testify until the third
day of trial. Yet, defense counsel did not avail himself of the
opportunity to question Mr. Brown about his knowledge concerning
Mr. O'Neill's termination, either during the three weeks prior to
trial after he was put on notice, or after the court's ruling.
Since defense counsel had sufficient time to question this
witness prior to trial to minimize any prejudice, the court
correctly refused to bar the witness. See Robert Billet
Promotions, Inc. v. IMI Cornelius, Inc., No. 95-1376, 1998 WL
721081 *8 (E.D.Pa. Oct.14, 1998).
Finally, the defendant claims that the court should have
stricken the testimony in question because there was no evidence
that Mr. Miller was speaking as a representative of the defendant
when he was allegedly speaking to Mr. Brown. Although Mr. Brown
testified that he and Miller were friends, he stated that he
discussed issues with Mr. Miller both as a friend and as a shop
steward to a manager. (N.T. 1/20/2000, 218). With regard to the
testimony in question, the court specifically stated, "[y]ou can
testify what he said if he was talking at the time as a manager
of Sears." (N.T. 1/20/2000, 218). After this admonition, Mr.
Brown said that Mr. Miller made the comment referring to Mr.
O'Neill's age and retirement status.
IV. Evidence of Disparate Treatment
Mr. O'Neill's discrimination case proceeded under both a
mixed-motives analysis, as previously discussed, and a pretext
analysis. "When a plaintiff alleges disparate treatment,
`liability depends on whether the protected trait (under the
ADEA, age) actually motivated the employer's decision.'" Reeves
v. Sanderson Plumbing Products, Inc., ___ U.S. ___, 120 S.Ct.
2097, 2105, 147 L.Ed.2d 105 (2000) (quoting Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993)). In support of Mr. O'Neill's pretext case, after
satisfying the prima facie requirements, he presented evidence
from which the jury could reject Sears' proffered reason for his
termination and conclude that age motivated Sears' decision. Mr.
O'Neill not only presented evidence that the very action for
which he was terminated was the custom and practice of the
technicians working in sensitive areas, but he also presented two
examples of younger individual whom Sears had caught doing the
same thing. Yet, these two technicians, Sal Luongo and Raymond
Clark, were not terminated for their actions.
The defendant does not take issue with the testimony regarding
the customary practice. However, the defendant does argue that
Mr. Luongo and Mr. Clark cannot be considered similarly situated
to Mr. O'Neill for purposes of comparison. Both Mr. Luongo and
Mr. Clark were dues paying members of the union who sought the
help of the union regarding their discipline. Mr. O'Neill
testified that he had not paid dues to the union for 20 years.
(N.T. 1/19/2000, 77). When he sought the union's help in filing a
grievance, the union refused to represent him.*fn3 (N.T.
1/19/2000, 78). The union's assistance, the defendant contends,
differentiates Mr. O'Neill from Mr. Clark and Mr. Luongo.
Contrary to the defendant's theory, despite plaintiff's failure
to pay dues, the union had the same obligation to represent Mr.
O'Neill as it did to represent every other member of the
bargaining unit. (N.T. 1/20/2000, 133). Indeed, for the union to
discriminate against a non-dues payer would be a blatant
violation of the National
Labor Relations Act. The fact that the union may have unlawfully
failed to represent Mr. O'Neill to the extent that it did the two
younger technicians should not cut in Sears' favor. To accept
such an argument would allow two wrongs to make a right.
Furthermore, the court allowed the defense to present evidence
concerning the dues paying status of all three men. In fact,
defense counsel argued to the jury that dues paying union status
explained the difference in the disciplinary measures that each
And there was no pressure put on us by the union
about Mr. O'Neill's termination. It was dropped. So
our termination stood. Unlike Luongo and unlike Clark
where the union did bring pressure to bear. . . . It
does not mean that Mr. O'Neill was discriminated
[against] because of his age. If he was being treated
differently, maybe the union was the one treating him
differently, and that was a factor in this.
(N.T. 1/24/2000, 75). Based on the jury's verdict, however, this
argument was obviously rejected.
In order to be deemed similarly situated, the Sixth Circuit has
held that the comparators should have dealt with the same
supervisor, have been subject to the same standards, and have
engaged in the same conduct. Here, Mr. Clark testified that he
received a two week suspension, without pay, the second time he
was disciplined for going home early and falsifying his route
sheet and time card.*fn4 (N.T. 1/20/2000, 141-143, Plaintiff's
Exhibit 44). At the time he received this suspension, he was 29
Similarly, Mr. Luongo, also 29, received a two week suspension,
without pay, for "theft and dishonesty," when he returned home
early after finishing his route in North Philadelphia. Like Mr.
O'Neill, Mr. Luongo was merely following the practice of
completing the route and finishing the paperwork at home. (N.T.
1/20/2000, 197-200). Mr. Luongo had received several warnings
concerning such actions. (Plaintiff's Exhibit 36).
Sears also argues that the younger employees are not true
comparators because they had different supervisors than Mr.
O'Neill. Mr. O'Neill testified that his direct supervisor was
Joseph Miller and Mr. Finlayson was the manager in charge of the
Eastern Seaboard of Sears. (N.T. 1/19/2000, vol.1, 12-13).
However, Mr. Partridge is the one who took Mr. O'Neill's keys and
suspended him indefinitely on March 8, 1996. (N.T. 1/19/2000,
The plaintiff presented evidence that the same supervisors were
involved with the discipline of the other men. Mr. Finlayson's
signature appears on the memorandum documenting Mr. Clark's
suspension. (Plaintiff's Exhibit 44). Additionally, Mr. Miller
was in attendance at the meeting during which it was determined
that Mr. Clark would receive only a suspension. (Plaintiff's
Exhibit 44). Similarly, Mr. Miller and Mr. Partridge were present
when Mr. Luongo was disciplined and their signatures appear on
the "Memorandum of Deficiency." (N.T. 1/20/2000, 201; Plaintiff's
Unlike his younger colleagues, the discipline meted out to Mr.
O'Neill for his second offense was termination. This evidence was
sufficient to allow the issue of whether "willful misconduct" was
merely a pretext for age discrimination to go to the jury.
Considering the direct evidence of discrimination and the
plaintiff's evidence in support of his pretext case, the court
concludes that there was sufficient evidence to support the
jury's finding of discriminatory
animus and the jury's verdict with respect to the ADEA and the
V. PHRA Limitations
The defendant again argues that the plaintiff failed to timely
file his administrative appeal with the Pennsylvania Human
Relations Commission. Considering the many possible termination
dates in this case: plaintiff's suspension on March 8; a meeting
with Mr. Finlayson on March 18; the telephone conversation with
Mr. Finlayson on March 25; and the date appearing on the approval
to terminate form — April 9, the court left this factual issue to
The jury was instructed:
Pursuant to the PHRA, in order to successfully
claim discrimination, the plaintiff must file a
complaint with the Pennsylvania Human Relations
Commission within 180 days of the alleged act of
In this case, the alleged act of discrimination was
plaintiff's termination by Sears. As you know from
having heard the testimony, there is a dispute as to
when the plaintiff first learned of his termination.
Now, it is undisputed that the plaintiff filed his
claim with the PHRA on September 20th, 1996. You have
heard conflicting testimony concerning when Mr.
O'Neill first learned he was fired. It is for you to
decide what that date was.
If you find that the plaintiff has proven by a
preponderance of the evidence that Mr. O'Neill did
not learn of his termination until after March 23rd,
1996, that by the way, March 23rd is 180 days before
September 20th, so even though nothing has happened
on that date, I think it might have been a weekend.
[sic] That's the date. That is the cutoff date. So if
you find that he did not learn of his termination
until after March 23rd, 1996, and that he was
unlawfully discriminated against on the basis of his
age, then the plaintiff has sustained his
Pennsylvania Human Relations Act claim and is
entitled to the damages provided for in that act
which I will explain to you shortly.
If you find that the plaintiff learned of his
termination on or before March 23rd, 1996, then the
statute of limitations bars the Pennsylvania Human
Relations Act claim and the plaintiff is not entitled
to damages provided for by that state law.
(N.T. 1/24/2000, 110-110).
Pursuant to that instruction, the jury found that the plaintiff
was terminated after March 23, 1996.*fn5 (N.T. 1/24/2000, 119).
As such, the PHRA charge was timely filed because, as previously
stated, it is undisputed that Mr. O'Neill filed his PHRA claim on
September 20, 1996, within the 180 day period of the termination
date found by the jury.
VI. Excessive Compensatory Damages
The defendant claims that the jury's award of $175,000 in
compensatory damages was excessive and was influenced by passion,
prejudice, and/or sympathy. The district court may review a
damage award for excessiveness. Kazan v. Wolinski,
721 F.2d 911, 914 (3d Cir. 1983). A motion for remittitur is left to the
sound discretion of the trial judge, who is in the best position
to evaluate the evidence and determine whether the jury has come
to a rationally based award. Spence v. Board of Education,
806 F.2d 1198, 1201 (3d Cir. 1986). When the jury's award is clearly
unsupported or excessive, and where no clear judicial error can
be identified, the
court should order the plaintiff to remit a portion of the
verdict in excess of the maximum amount supported by the evidence
or, if remittitur is refused, to submit to a new trial. Id. See
also, Kazan, at 914. In an ADEA case, "[a] remittitur is in
order when a trial judge concludes that a jury verdict is
`clearly unsupported' by the evidence and exceeds the amount
needed to make the plaintiff whole, i.e., to remedy the effect of
the employer's discrimination." Starceski v. Westinghouse
Electric Corp., 54 F.3d 1089, 1100 (3d Cir. 1995) (citing
Spence, at 1201). Remittitur is appropriate only when the
jury's verdict is so large as to "shock the conscience" of the
The defendant submits that $175,000 in compensatory damages is
excessive considering the fact that the plaintiff did not seek
any medical or psychological care. It is well settled under
Pennsylvania law that medical evidence need not be produced to
sustain an award of compensatory damages when damages are
"direct, obvious, and foreseeable results of an injury . . . even
when the bodily injury is minor or trivial in character."
Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1132 (Pa.Super.
1999). This is true even when the damages are awarded for
emotional distress as long as the jury could reach "a fair and
competent determination of compensatory damages in the absence of
medical testimony, based on the evidence adduced at trial, even
where the injury to the plaintiff is intangible." Bannar v.
Miller, 701 A.2d 242, 251 (Pa.Super. 1997).
The Third Circuit has explained that the burden of proving
damages is on the plaintiff to establish "that there was a
reasonable probability, rather than a mere possibility, that
damages due to emotional distress were in fact incurred."
Spence, at 1201. In Spence, the Third Circuit found that the
testimony of plaintiff, alone, that she "was depressed and
humiliated and that she lost her motive to be creative," was
insufficient to meet the burden. Id. However, the Third Circuit
has upheld a $250,001 award for emotional damages in a civil
rights case (involving the plaintiff's discharge from employment)
based on the testimony of the plaintiff's wife and daughter.
Bolden v. SEPTA, 21 F.3d 29, 33 (3d Cir. 1994). "[W]e are
persuaded that the approach taken by our sister circuits which
have dispensed with a requirement of expert testimony to
corroborate a claim for emotional distress is more consistent
with the broad remunerative purpose of the civil rights laws."
Id., at 34.
Relying on the reasoning in Bolden, the District Court upheld
and award of compensatory damages pursuant to the PHRA in an age
discrimination suit. Becker v. ARCO, 15 F. Supp.2d 600 (E.D.Pa.
1998) (reversed on other grounds). In support of his compensatory
damages, Becker testified that he was humiliated when he was
escorted from his place of employment, he "felt stupid, and was
distressed at the prospect of informing his wife of his
termination." Becker, at 609. Becker's son testified that his
father had "lost weight, appeared pale, and seemed to age at
least ten years" and described his father's inability to
participate in family gatherings and spoke of the strained
relationship between his parents. Id.
Similarly, Mr. O'Neill described his world as "turned upside
down" when he was fired. (N.T. 1/19/2000, vol.1, 17). He stated
that he couldn't eat or sleep and became "grumpy and irritable"
towards his wife and children. He described a "rotten" feeling
because he couldn't take his wife on vacation. He also had
testified that shortly before his termination, he and his wife
had purchased a new house and had a mortgage to pay. (N.T.
1/19/2000, vol.1, 35, 41). In addition, Mr. O'Neill testified
that he and his wife "did without" medical benefits for nearly
three years because they could not afford them. (N.T. 1/19, 2000,
Nellie O'Neill, the plaintiff's wife, testified that her
husband went from being "a fun guy" to "a zombi" [sic] after his
He became argumentative, couldn't eat, and didn't sleep well.
(N.T. 1/19/2000, vol.2, 100-101). He didn't get together with
family as much and "just kind of keeps to himself more," (N.T.
1/19/2000, vol.2, 103). Finally, Gregory O'Neill, the plaintiff's
son, stated that it looked like his father had aged 20 years
overnight. (N.T. 1/1/00, vol.1, 30).
Considering the Third Circuit's decision in Bolden, the
District Court's decision in Becker, and the similarity in the
type of testimony presented by Mr. O'Neill, evidencing the
physical and emotional effects his termination had, the court
will deny the defendant's motion for remittitur.
Finally, the defendant claims that the jury's finding of a
willful violation of the ADEA is unsupported by the evidence. A
violation of the ADEA is willful "if the employer either `knew or
showed reckless disregard for the matter of whether its conduct
was prohibited by the ADEA.'" Starceski v. Westinghouse Electric
Corp., 54 F.3d 1089, 1098 (3d Cir. 1995) (quoting Hazen Paper
Co. v. Biggins, 507 U.S. 604, 612, 113 S.Ct. 1701, 123 L.Ed.2d
338 (1993)). After receiving instructions consistent with this
standard, (which were not challenged by the defendant), the jury
found that Sears willfully violated the ADEA. (N.T. 1/24/2000,
In reviewing the jury's determination of willfulness, we must
view the evidence in the light most favorable to the verdict
winner, Mr. O'Neill. Id., at 1099 (citing Radabaugh v. Zip
Feed Mills, Inc., 997 F.2d 444, 450 (8th Cir. 1993)). Doing so,
the court concludes that the plaintiff presented sufficient
evidence to support the jury's determination. Mr. Finlayson
admitted that he was familiar with the ADEA and its requirements
and protections. (N.T. 1/19/2000, vol.2, 69-70). During the
trial, the jury heard numerous witnesses testify that the custom
and practice when working in North Philadelphia was to finish the
calls as quickly as possible, foregoing breaks and lunch and
leave the area as early as possible. (N.T. 1/19/2000, vol. 2,
92-93; 1/20/2000, 59-60, 88-92; 209-210; 215-216). Yet, Mr.
O'Neill, an older employee, was terminated for doing just that.
When Mr. Johnson, the shop steward, discussed the unprecedented
discipline to which Mr. O'Neill was subject with Mr. Finlayson,
the discussion turned to Mr. O'Neill's age in relationship to his
eligibility to retire. (N.T. 1/20/2000, 111-112). The only
discussion that Mr. Finlayson had with Mr. O'Neill when he told
Mr. O'Neill that he was terminated involved Mr. O'Neill's age and
years of service. (N.T. 1/19/2000, vol.1, 17). Finally, Mr.
Brown, the former shop steward, testified that Mr. Miller, a unit
supervisor, commented that because Mr. O'Neill had reached
retirement age, his termination "wouldn't have such a profound
effect economically . . . as it would [have] on a 28 year old
fellow that still had a whole career ahead of him." (N.T.
1/20/2000, 219). Considering this evidence, along with the
comparator evidence previously discussed, the jury could
reasonably find that Sears either "knew or showed reckless
disregard" for its statutory duty imposed by the ADEA.
Starceski, at 1099.
An appropriate order follows.
AND NOW, this 28 day of July, 2000, upon consideration of the
Defendant's Motion for Judgment as a Matter of Law or in the
Alternative New Trial or in the Alternative Remittitur, the
Plaintiff's response, thereto, the supplemental filings, by both
parties, and after careful review of the trial transcript, IT IS
HEREBY ORDERED that the Defendant's Motion is DENIED.