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Potoski v. Wilkes University

September 22, 2010


The opinion of the court was delivered by: Judge Sylvia H. Rambo


This employment discrimination case is scheduled to go to trial on November 8, 2010. The case was filed by Plaintiffs on October 19, 2006, and was originally assigned to the Hon. Thomas I. Vanaskie. On June 3, 2010, the case was reassigned to the Hon. James. F. McClure, and ultimately the case was reassigned to the undersigned.

Presently before the court are various motions in limine filed by the parties. Defendant Wilkes University filed three motions in limine: (1) to Preclude the Submission of Future Lost Wage Claims to the Jury, (Doc. 88); (2) to Preclude the Imposition of Liquidated Damages at Trial, (Doc. 89); and, (3) to Preclude the Testimony of Richard Nardone, (Doc. 90).

Plaintiffs Leonard Potoski, Jr., James Monsuer, Richard Chabala, Joseph C. Bokar, Joseph L. Pace, and Patrick O'Donnell filed seven motions in limine: (1) to Preclude the Expert Report and Testimony of James A. Stavros, CPA, (Doc. 91); (2) to Preclude the Expert Report and Testimony of Dr. Kevin R. Murphy and the Expert Report of Dr. Frank Landy, (Doc. 103); (3) to Preclude the Expert Report and Testimony of Dr. Bernard Siskin, (Doc. 95); (4) to Exclude any Evidence of Plaintiffs' Successors/Replacements Beyond those Identified in Defendant's Responses to Discovery Requests, and those Identified in the Court's February 12, 2010 Opinion and Order, (Doc. 93); (5) to Exclude Evidence that there was a "Reorganization" or "Position Elimination" as Determined by the Court's February 12, 2010 Opinion and Order, (Doc. 101); (6) to Exclude the General Release Agreements, (Doc. 99); and, (7) to Exclude any Evidence of Plaintiffs Bokar's, Monsuer's, and Potoski's Failure to Reapply for the PSO-1 position, (Doc. 97).

The court will address each of these motions in turn.

I. Defendant's Motions in Limine

A. Motion in Limine to Preclude the Submission of Future Lost Wage Claims to the Jury

If it is determined that Defendant violated the ADEA and/or the PHRA, in addition to compensatory damages, Plaintiffs seek an award of front pay in lieu of reinstatement. "Front pay is an alternative to the traditional equitable remedy of reinstatement, which would be inappropriate where there is a likelihood of continuing disharmony between the parties or unavailable because no comparable position exists." Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 86 (3d Cir. 2009) (internal citations omitted). Thus, an award of front pay is appropriate if Plaintiffs were victims of unlawful discrimination, and they "experience a loss of future earnings because [they] cannot be placed in the position [they] [were] unlawfully denied." Id.

Defendant seeks to preclude Plaintiffs from submitting this issue to the jury. Specifically, Defendant argues that it is up to the court to determine both whether front pay is appropriate, and, if so, the amount that equitably compensates Plaintiffs for their future lost wages. Defendant argues that, with six Plaintiffs, these issues would unnecessarily protract the jury's deliberations. For their part, Plaintiffs contend that other courts have submitted the issue of front pay to a jury, and that the jury in this case will be in the best position to hear testimony regarding Plaintiffs' reasonably calculated future losses. Plaintiff concedes that the court is not required to submit the issue of front pay to the jury, and that doing so would merely be advisory. (See Doc. 116, Pls.' Br. in Opp'n to Def.'s Mot. to Preclude Submission of Future Lost Wages to the Jury at 12); see Donlin, 581 F.3d at 88 n. 11 ("[A] District Court [is] not required to submit the issue of front pay to the advisory jury... because a bench trial is sufficient to determine an equitable award such as front pay.")

The court agrees with the arguments presented by Defendant. If this were a case involving one or two Plaintiffs, the court would see little problem in permitting a jury to render an advisory verdict on the issue of front pay; however, this is a case involving six Plaintiffs all of whom have different life circumstances and job prospects. The court sees little value in allowing a jury to become bogged down in the often abstract factors involved in determining a claimant's work and like expectancies. For each Plaintiff, the jury would have to determine the individual's work expectancy, life expectancy, and an appropriate cut-off date for an equitable award of front pay. See Donlin, 581 F.3d at 87 (discussing factors). This is cumbersome and tedious work for what would be a non-binding advisory award.

The court would rather reach these decisions on its own, at a separate hearing, in the event that Defendant is found to be liable.

Accordingly, the court will grant Defendant's motion in limine as to this issue. Plaintiffs shall not present any evidence concerning an appropriate award of front pay at trial. This includes any evidence concerning Plaintiffs' future earning capacities and life expectancies. Of course, Plaintiffs may submit evidence concerning their efforts to mitigate their damages, but such evidence will be submitted only as to the issue of mitigation. The court will not charge the jury on the issue of front pay. Instead, if Defendant is found to be liable on Plaintiffs' claims, the court will schedule an evidentiary hearing to determine the appropriateness of an award of front pay.

B. Motion to Preclude the Imposition of Liquidated Damages at Trial

In their complaint, Plaintiffs assert that Defendant violated the ADEA and the PHRA by terminating their employment in favor of sufficiently younger workers, and that Defendant's proffered justification of departmental reorganization was merely a pretext designed to avoid liability under state and federal law.

As to Plaintiffs' ADEA claims, Defendant asserts that even if Plaintiffs' allegations are true, there are no facts suggesting that Defendant acted "willfully," which is the required state of mind for the imposition of liquidated damages under the ADEA, or that any of the Plaintiffs were "systematically targeted" for termination by Defendant. (Doc. 89, Defs.' Mot. and Br. in Supp. to Preclude the Imposition of Liquidated Damages at Trial at 8). In support of its argument, Defendant points out that it studied the issue of campus security "for over three years prior to making its decision to reorganize the public safety" department, (id. at 6), and that all of the security officers were discharged on July 7, 2003, "regardless of their ages," (id. at 8). As to Plaintiffs' PHRA claims, Defendant contends that liquidated damages are not available. (See id. at 9-10.)

Plaintiffs assert that it is premature to rule pre-trial on whether the evidence is sufficient to support submitting to the jury the issue of whether to award liquidated damages under the ADEA. As to the PHRA, Plaintiffs submit that while the act prohibits punitive damages, the court should not read it to prohibit liquidated damages because of its broad remedial purpose.

At this time, the court will not preclude the submission of a liquidated damages charge to the jury. The parties agree that the ADEA provides for liquidated damages where a defendant's violation was "willful," 29 U.S.C. § 626(b), and that for purposes of that provision, the Supreme Court has defined willfulness as meaning that the defendant "either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128-29 (1985). In most cases, the question of whether liquidated damages are warranted "will be dependent upon an ad hoc inquiry into the particular circumstances." Kelly v. Matlack, Inc., 903 F.2d 978, 982 (3d Cir. 1990).

Although pretext alone is an insufficient basis to award liquidated damages, the Court of Appeals cited three instances that demonstrate an employer's willfulness: "(1) where evidence exists that shows that the employer had previously violated the ADEA; (2) where the termination of the employee came at a time when it would deprive him or her of a pension; or (3) when the circumstances of the violation itself were egregious, as in the systematic purging of older people from the employee staff." Kelly, 903 F.2d at 982 (citing Dreyer v. Arco Chem. Co., 801 F.2d 651, 658 (3d Cir. 1986)). At this stage of the proceedings, before trial commences, it would be premature to say that Plaintiffs cannot demonstrate willfulness. Accordingly, the Court will deny Defendant's motion without prejudice as to the issue of liquidated damages under the ADEA, and will permit Defendant to revisit this issue, if necessary, prior to submission of the case to the jury.

As to the PHRA, however, the court is persuaded that liquidated damages are impermissible. Pennsylvania law clearly prohibits the imposition of punitive damages under the PHRA. See Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998) (holding that punitive damages are not available under the PHRA); accord Gagliardo v. Connaught Labs., 311 F.3d 565, 570 n. 3 (3d Cir. 2002). Furthermore, both the Supreme Court and Third Circuit have held, albeit in the context of the ADEA, that liquidated damages are intended to be punitive in nature. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 (3d Cir. 1995). Given these conclusions, Plaintiffs are not entitled to the submission of a liquidated damages charge to the jury on their PHRA claims, and the court will grant Defendant's motion to preclude liquidated damages as to those claims.

C. Defendant's Motion in Limine to Preclude the Testimony of Richard Nardone

Defendant seeks to preclude the testimony of one of Plaintiffs' experts, Richard Nardone, who authored two reports which opine that the cause of Plaintiffs' termination as security officers was age discrimination, and that Defendant's failure to rehire Defendants Chabala, Pace, and O'Donnell after they applied for the PSO-1 position was also age discrimination. (See Doc. 90-9, Def.'s Ex. E, Jan. 28, 2008 Report of Richard Nardone, and Doc. 90-10, Def.'s Ex. F., Oct. 10, 2008 Supplemental Report of Richard Nardone.) Defendant brings a Daubert challenge by asserting that Mr. Nardone is not qualified as an expert, and his opinion is neither reliable nor based upon factual data.

In Daubert, the Supreme Court held that:

Faced with a proffer of expert scientific testimony... the trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Daubert v. Merrell Dow Pharm., Inc.,509 U.S. 579, 592 (1993). In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court clarified any confusion regarding the intended reach of the Daubert decision, by declaring that the trial judge must perform this "basic gatekeeping obligation" to all expert matters, not just "scientific" matters. In the Third Circuit, the trial court's role as a "gatekeeper" requires proof that: (1) the proffered witness is qualified as an expert; (2) the expert must testify about matters requiring scientific, technical, or specialized knowledge; and (3) the expert's testimony must "fit" the facts of the case. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-42 (3d Cir. 1994).

As to the first requirement, the Third Circuit has "eschewed imposing overly rigorous requirements of expertise and [has] been satisfied with more general qualifications." Paoli, 35 F.3d at 741. "Rule 702's liberal policy of admissibility extends to the substantive as well as the formal qualification of experts." Id. Thus, an expert can qualify based on a broad range of knowledge, skills, training, and experience.

The second inquiry focuses on methodology. The inquiry into methodology is designed to ensure that an expert's opinions are based upon "'methods and procedures of science' rather than on subjective belief or unsupported speculation." Id. at 742. A variety of factors are used to assess reliability. See Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 594 (D.N.J. 2002) (listing factors). Those factors most relevant to the present litigation include:

(1) whether the expert's proposed testimony grows naturally and directly out of research the expert has conducted independent of the litigation; (2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (3) whether the expert has adequately accounted for alternative explanations; (4) whether the expert is being as careful as he would be in his professional work outside of the litigation context; and, (5) whether the field of expertise asserted by the expert is known to reach reliable results for the type of opinion proffered by the expert. See id. at 594-95.

Furthermore, the "test of reliability is 'flexible.'" Kumho, 526 U.S. at 141. According to the Supreme Court, "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts." Id. The relevance of the Daubert factors depends "on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Id. at 150 (internal quotation marks and citations omitted).

Finally, Daubert and Rule 702 require that the expert's testimony "fit" the facts of the case. "'Fit' requires that the proffered testimony must in fact assist the jury, by providing it with relevant information, necessary to a reasoned decision of the case." Magistrini, 180 F. Supp. 2d at 595 (citing Paoli, 35 F.3d at 743).

1. Nardone's qualifications as an expert

Defendant asserts that it is unclear in what "field of experience" Plaintiffs offer Mr. Nardone as an expert because he offers opinions about Defendant's motivations for terminating Plaintiffs' employment, as well as not rehiring those Plaintiffs who applied for the PSO-1 position. Defendant contends that Mr. Nardone's experience working within a human resources department, and acting as the CEO of a business, does not provide the basis or the background beyond ...

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