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.
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.
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,
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 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 ...