Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carol Tokash v. Foxco Insurance Management Services

January 11, 2013


The opinion of the court was delivered by: (judge Caputo)


Presently before the Court is Plaintiff Carol Tokash's ("Tokash") Motion for New Trial Pursuant to Fed. R. Civ. P. 59. (Doc. 80.) Following a four-day trial, the jury returned a verdict in favor of Defendants Foxco Insurance Management Services, Inc. and Excalibur Insurance Management Services, Inc. (collectively "Excalibur") on Plaintiff's age discrimination claims brought pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §§ 955, et seq. In support of her request for a new trial, Tokash argues that the verdict was against the weight of the evidence, and, additionally, that the failure to provide three proposed instructions confused the jury. Because the jury's verdict did not result in a miscarriage of justice or shock the conscious, and because declining to provide the three proposed jury instructions was not erroneous, the request for a new trial will be denied.

I. Background

As the parties have already been through a trial on this matter, a recount of only those facts relevant to the resolution of the instant motion will be provided. Carol Tokash was born on January 1, 1942. On October 3, 1994, Tokash was hired by Excalibur as an insurance underwriter. As an underwriter, Tokash was responsible for writing policy renewals and preparing new business policies.

During Tokash's employment with Excalibur, the company had a handbook entitled "Employee Manual of Company Rules and Benefits" (the "Manual"). The July 1996 version of the Manual contained the following provision: "All employees will be subject to compulsory retirement upon attaining age 65." The Manual also contained a job description for a commercial underwriter: "A Pennsylvania insurance license is a must for any employee who would consider an underwriting position. Experience is also a must for this type of position. All employees who are in this department will have a much better than average knowledge of the insurance industry. . . ."

Due to the mandatory retirement provision in the Manual, Tokash became concerned that she would be subject to compulsory retirement when she attained the age of sixty-five (65) on January 1, 2007. As such, she approached Charles "Chuck" Volpe, Jr., President and CEO of Excalibur and Foxco, to inquire as to whether she would be forced to retire. According to Tokash, Volpe said it was her call whether to retire. Tokash continued working for Excalibur after her sixty-fifth (65th) birthday.

Around March 2008, Volpe became aware that the companies had lost a significant amount of revenue during the first quarter of that year. To limit the losses to Excalibur, Volpe determined that layoffs were necessary for the financial health of the business. Five employees, including Tokash, were notified that they would be terminated. Tokash, although being notified of her termination in March 2008, was permitted to continue working until August 2008. During this period, however, Tokash was required to train a younger employee, Laura Moore, who was also laid off. Moore, however, was going to be brought back in August 2008 to perform both her duties and Tokash's duties. Moore was thirty-two years younger than Tokash. Prior to Tokash's ultimate separation from Excalibur in August 2008, she provided Moore with step-by-step on instructions how to write insurance policies, as well as showing her how to prepare loss runs, statements of values, and equipment breakdowns. Tokash's last day with Excalibur was on August 29, 2008. Since Moore returned to work for Excalibur in August 2008, Excalibur's work force was reduced by a total of four employees.

As a result of the foregoing events, Tokash commenced this action in April 2010 asserting claims for her alleged unlawful termination. Ultimately, the action proceeded to trial on Tokash's age discrimination claims. The jury, following a four-day trial, returned a verdict for Excalibur on both the ADEA and PHRA claims. Tokash filed a timely motion for new trial. Tokash argues that a new trial is warranted in this action because the jury's verdict was against the weight of the evidence and because the jury instructions affected her substantial rights. The motion for new trial has now been fully briefed and is ripe for disposition.

II. Discussion

A. Legal Standard

Rule 59 of the Federal Rules of Civil Procedure provides:

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; . .

Fed. R. Civ. P. 59(a)(1)(A).

"The decision to grant or deny a new trial is confided almost entirely to the discretion of the district court." Blanch v. Raymark Indus., 972 F.2d 507, 512 (3d Cir. 1992) (citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S. Ct. 188, 190, 66 L. Ed. 2d 193 (1980)). The scope of that discretion, however, is dependent on the basis of the motion for a new trial. See Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1992).

When the motion asserts that the verdict is against the weight of the evidence, the court's discretion is narrow: it may only grant the motion "when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991) (citing EEOC v. Del. Dep't of Health and Soc. Servs., 865 F.2d 1408, 1413 (3d Cir. 1989)). This stringent standard for a new trial exists "'to ensure that a district court does not substitute its judgment of the facts and the credibility of the witnesses for that of the jury.'" William A. Graham Co. v. Haughey, 646 F.3d 138, 143 (3d Cir. 2011) (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996)); M.B. ex rel. T.B. v. City of Phila., 128 F. App'x 217, 229 (3d Cir. 2005) ("The district court cannot substitute its view of the facts and credibility of the witnesses for that of the jury."). "Where the subject matter of the litigation is simple and within a layman's understanding, the district court is given less freedom to scrutinize the jury's verdict than in a case that deals with complex factual determinations." Williamson, 926 F.2d at 1352.

Conversely, the court's discretion is far broader "when the reason for interfering with the jury verdict is a ruling on a matter that initially rested within the discretion of the court, e.g. evidentiary rulings or prejudicial statements made by counsel." Klein, 992 F.2d at 1289--90 (internal citations omitted). "When a litigant moves for a new trial based upon jury instructions that allegedly contained legal error, the district court is tasked with determining whether the instructions, in their entirety, properly apprised the jury of the issues and applicable law." Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 692 F. Supp. 2d 487, 523 (M.D. Pa. 2010) (citing Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir. 2009). Similarly, "[w]hen determining whether to grant a new trial for failure to give a properly requested jury instruction, the court must determine 'whether the charge, taken as a whole, properly apprised the jury of the issues and the applicable law.'" Otos Tech., Co. v. OGK Am., Inc., No. 03-1979, 2007 WL 2374995, at *3 (D. N.J. Aug. 13, 2007) (quoting Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir.1998). "If the instruction in question was erroneous, the court must then ascertain 'whether that error was so prejudicial that refusal to grant a new trial would ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.