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Gerundo v. AT&T Services, Inc.

United States District Court, E.D. Pennsylvania

December 27, 2016

JOHN GERUNDO, Plaintiff
v.
AT&T SERVICES, INC. Defendant.

          AMENDED MEMORANDUM OPINION

          SCHMEHL, J.

         Plaintiff brought this action, claiming he was placed on surplus status by his former employer, defendant AT&T Services, Inc., because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-629 and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann. § 951. After the Court denied the defendant's motion for summary judgment, the case was tried to the Court sitting with a jury. After a five-day trial, the jury found, as indicated on the verdict form, that plaintiff had proven by a preponderance of the evidence that his age was the determining factor in the decision to surplus his employment in connection with a reduction in force. (ECF 91.) The jury awarded plaintiff $288, 000.00 in back pay and $135, 000.00 in front pay. (Id.).The jury further found that defendant had proven by a preponderance of the evidence that plaintiff did not exercise reasonable diligence in his efforts to secure substantially equivalent employment and, as a result, deducted $53, 000.00 from the award of front pay, leaving a total front pay award of $82, 000.00. (Id.) Finally, the jury found that plaintiff had failed to prove that defendant either knew or showed reckless disregard for whether its conduct was prohibited by the age discrimination law. (Id.) The Court then entered a judgment in favor of plaintiff and against defendant in the amount of $370, 000.00. (ECF 87.) Presently before the Court is the renewed motion of the defendant for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is denied.

         OVERVIEW OF EVIDENCE

         Plaintiff was born in 1947 and was 65 years old at the time he received notice that he was being placed on surplus status. At the time of the surplus, plaintiff had worked for defendant and its predecessor for nearly 43 years and with defendant since 1999. Plaintiff worked for defendant as a Service Executive in the defendant's Signature Client Group ("SCG"). He mainly worked from his home in Macungie, Pennsylvania. Beginning around August, 2012, and throughout the balance of his employment with defendant, plaintiff's direct supervisor was Renee Roth ("Roth") (DOB: July 7, 1956) who resides and works in Minnesota. Roth met plaintiff on one occasion in the fall of 2012. Beginning in 2012, and throughout the balance of plaintiff's employment with defendant, Roth's direct supervisor was Gary Jordan ("Jordan")(DOB: June 13, 1961) who resides and works in Illinois. Jordan never met plaintiff and did not have access to plaintiff's personnel file. Plaintiff was the oldest of Roth's direct reports. In all, Jordan was responsible for 51 Service Executives, including plaintiff. Plaintiff was the oldest of Jordan's 51 Service Executives.

         In 2010, defendant assigned plaintiff to replace one of the two Service Executives supporting Fiserv, one of defendant's largest and most demanding SCG clients. In late 2012, Fiserv and defendant entered into an agreement, pursuant to which Fiserv elected to expand defendant's services. As a result of this expansion, defendant added two additional Service Executives to the Fiserv account.

         In December, 2012, as part of the annual year-end review process, Jordan and his direct reports, including Roth, took part in calibration sessions to rank the 51 Service Executives. On a scale of 1-5 with “1” being the poorest and “5” being the best, Roth gave plaintiff a “3” in each of several categories, including “Performance” and “Leadership.” The criteria for these categories was subjective. The ratings and rankings were not based on an employee's length of time with a particular client, but on his overall ranking within the organization. At the time the year-end rankings were prepared in December, 2012, neither Jordan nor Roth was aware that a “surplus event” was going to be declared.

         In or around late January, 2013, defendant declared a "surplus event" within the SCG, whereby the defendant sought to reduce headcount to close a budget gap. Twelve Affected Work Groups ("AWGs") were involved in the surplus, across which a total of 47 positions were to be eliminated. Plaintiff was a Service Executive in AWG No. 5, where six of the 51 Service Executive Positions ultimately reporting to Jordan were to be eliminated, thus leaving 45 Service Executives in AWG No. 5.

         On January 29, 2013, Jordan was provided with a template that was to be used in connection with the surplus event. Two (2) of the four (4) rating categories- Performance and Leadership-had already been pre-populated with the scores that had recently been provided in connection with the year-end calibration session. The two (2) new categories-Skills and Experience-were blank. Jordan took it upon himself to enter scores for everyone in these two (2) new categories.

         The following day, on January 30, 2013, Jordan sent his “first crack” surplus ratings to his direct reports. Roth made no changes to the ratings that Jordan had given to plaintiff or any of the Service Executives reporting to her. Based on these four equally-weighted criteria, plaintiff received a final ranking of 2.75 which was comprised of Performance (3), Leadership (3), Skills (2) and Experience (3). Based solely on this rating and ranking process occurring as a result of the surplus event, plaintiff and five other Service Executives in AWG No. 5 placed "below the line" and were, therefore, selected for surplus status.

         Plaintiff received his Surplus Notification Letter on March 1, 2013. As an employee placed on surplus status, plaintiff was provided with two options: he could 1) continue his employment with defendant through April 30, 2013, and, during that time, apply for other positions within the Company; or (2) choose to terminate employment effective March 22, 2013. Plaintiff chose the first option and remained with defendant through April 30, 2013. In June, 2013, plaintiff began receiving his pension benefits.

         Maritza Gonzalez ("Gonzalez"), one of the 45 Service Executives in AWG No. 5 not placed on surplus status was assigned by Jordan to replace plaintiff on the Fiserv account. At the time, Gonzalez was 36 years old and had been with defendant since 1998. She had no experience working on the Fiserv account.

         STANDARD OF REVIEW

         A motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) “should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find” for the non-movant. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993); Mandile v. Clark Material Handling Co., 131 Fed.Appx. 836, 838 (3d Cir. 2005).

         In making this determination, “the court may not weigh the evidence, determine the credibility of the witnesses, or substitute its version of the facts for the jury's version.” Lightning Lube, 4 F.3d at 1166 (citing Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir. 1992)).

         “The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party.” Id. (quoting Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 2004) (“A judge may overturn a jury verdict only when, as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief.”)(quotations omitted)).

         DISCUSSION

         Under the ADEA, an employer is prohibited from discharging any individual or otherwise discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment, because of an individual's age. 29 U.S.C.§ 623(a)(1). When analyzing claims under the ADEA and PHRA where, as here, there is an absence of direct evidence of discrimination, the Court applies the burden-shifting framework set forth in McDonnell-Douglas v. Green, 411 U.S. 792 (1973).

         Ordinarily, to make out a prima facie case under McDonnell Douglas in an ADEA case, ''the plaintiff must show (1) that he was at least forty years of age or older, (2) that the defendant took an adverse employment action against the plaintiff, (3) that he was qualified for the position in question and (4) that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).

         “In the context of a reduction in force, in order to satisfy the fourth element of a prima facie case under the ADEA, a plaintiff must show that the employer retained a sufficiently younger similarly situated employee.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 301 (3d Cir. 2004) (emphasis added) (citing Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d Cir. 2002)). To be “similarly situated, ” there must be evidence that the ...


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