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Walker v. Verizon Pennsylvania LLC

United States District Court, E.D. Pennsylvania

August 25, 2017

SUZETTE WALKER
v.
VERIZON PENNSYLVANIA LLC

          MEMORANDUM

          BARTLE, J.

         Before the court are the motions of defendant Verizon Pennsylvania LLC for judgment as a matter of law and a new trial pursuant to Rules 50(b) and 59 of the Federal Rules of Civil Procedure as well as the motion of plaintiff Suzette Walker for liquidated damages and prejudgment interest. The court also has before it the petition and supplemental petition of the plaintiff for attorneys' fees and costs.

         This is an employment discrimination and retaliation action brought by Walker against her former employer, Verizon, under federal and state law. On May 25, 2017, after a five-day trial, [1] the jury returned a verdict in favor of the plaintiff on her claim of age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. §§ 951 et seq., as well as her claim of medical leave retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. The jury also found that Walker had not proven her claim of disability retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. and the PHRA.[2] That same day, the court entered judgment in favor of the plaintiff and against the defendant in the amount of $454, 000.

         I.

         We must view the evidence in the light most favorable to the plaintiff, the verdict winner. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). On April 25, 2015, Walker was terminated by Verizon as part of a company-wide reduction in force. She was fifty-six years old at the time. She had been employed by Verizon for more than thirty-six years and spent thirty-five of those years in the engineering department. During the course of her employment, Walker held various roles, including senior clerk, staff clerk, drafter, assignment technician, DSO coordinator, supervisor of network engineering, engineering III specialist: conduit highway, and engineering III specialist: turf engineer.

         At the time of the reduction in force, Walker was a member of the design engineering team and reported to Brian Magee. She had begun working under Magee in 2012 and held two different engineering III specialist positions while working under him -- one on the conduit highway[3] and one as a turf engineer.

         Walker held the conduit highway position from late 2012 until April 2014. Prior to this period, Walker had experience working with conduit. She had previously designed prints and posted to permanent records alongside conduit engineers while she was a drafter. In addition, as a supervisor, she had supervised the individuals who drafted conduit plats, trained individuals on the placement and drafting of conduit work, and understood Verizon's "One Call System." As a member of the conduit highway team, Walker spent thirty percent of her time on administrative tasks and seventy percent of her time on conduit design, including surveying, researching, investigating, and contacting others involved in the conduit design.

         While she was in this role, Walker took approximately 2.5 months of FMLA leave from April 26, 2013 to July 14, 2013. She thereafter returned to work but worked only half-days through September 2013.

         On August 5, 2013, approximately three weeks after returning from FMLA leave, Walker had a formal mid-year performance review with Magee. In a section marked "Manager Performance Summary" on her performance evaluation, Magee wrote:

Suzette [Walker] was moved to Conduit/Highway in the first half of the year due to existing knowledge of conduit and the City Permit process. GPIS review has been a positive transition, but conduit design has been hard to transition. Suzette has missed time due to an injury, which has made the transition difficult. The conduit area is still setup for the former Conduit Engineer and I have received complaints about the conduit mailbox being full. We are not where the Conduit/Highway Team needs to be at this time.

(Emphasis added). As stated above, Walker had been out on FMLA leave for nearly 2.5 months and had only been at work on a part-time schedule for approximately three weeks at the time of her mid-year performance evaluation. Nevertheless, Magee determined that her FMLA leave "ha[d] made the transition difficult."

         In February 2014, Magee gave Walker her 2013 year-end performance review. The possible scores were Leading, Performing, Developing, or New. Magee assigned Walker the score of "Developing." Leading was the top score and was rarely given. It was reserved for employees who had sustained performance above their objectives, requirements, and expectations. Performing was the score that most employees received. It indicated that the employee had met or periodically exceeded his or her objectives, requirements, and expectations. On the other hand, a Developing score signified that the employee had not met his or her objectives, requirements, and expectations and that improvement was needed. New was given to employees who had had such a short tenure in their positions that they could not be properly evaluated. With the exception of her Developing score in 2013, Walker had otherwise always received a score of Performing.

         In April 2014, Magee transferred Walker to the position of engineering III specialist: turf engineer. As a turf engineer, Walker was responsible for geographic areas in and around Philadelphia including Baldwin, Davenport, Waverly, Germantown, Chestnut Hill, and Ivy Ridge. In July 2014, the Poplar geographic area was also added to her turf because a co-worker had struggled with this area. The turf engineer job required Walker to use high bandwidth. She had previously worked with high bandwidth in her roles as a drafter, assignment technician, and supervisor.

         In her 2014 mid-year review, Magee wrote:

Suzette [Walker] your numbers look good considering your time in the Turf. Take ownership of your Turf and learn as much as you can during the remainder of this year on [high bandwidth]. If you can get your Fac Verification under 8, you will be making a big contribution to the Team.

         The Fac Verification score measured the speed with which employees completed their high bandwidth jobs. This was the most important aspect of a turf engineer's job. The performance evaluation stated that Walker's Fac Verification score was 10.3, which was much better than the district average score of 18.2.

         In her 2014 year-end review, Walker received a score of Performing. Walker had reduced her Fac Verification score to 8.4, which was better than the team average of 12.7. In the year-end review, Magee wrote:

Suzette [Walker] continued to grow into the Turf role in 2014. She took the [high bandwidth] focus and moved her facility verification number to metric. Suzette utilizes and manages the SOW Contractors well, but would benefit from completing more of the [high bandwidth] surveys herself. Also greater focus on the end product of the Contractors' product is necessary.

         Although Magee expressed concern about Walker's reliance on contractors, Magee expected his turf engineers to function as project managers and use contractors to get more work done.

         In March 2015, Verizon instructed Magee and another manager, Carl Gross, that between the two of them, they had to select one person to terminate as part of a reduction in force. Like Magee, Gross managed a team of engineering specialists. Magee and Gross were asked to "rate and rank" their team members before determining whom to terminate. Managers were trained on how to participate in the rate and rank process. The rate and rank protocol required managers to evaluate the performance of their team members during the previous two years. Thus, with respect to the 2015 reduction in force, Magee and Gross were expected to evaluate the 2013 and 2014 performance of each of the persons they supervised. The managers, with the assistance of Verizon's human resources department, were required to rate each employee's primary skills, technical knowledge, "credo"[4], corrective action, and any other relevant factors on a scale between one and five. Employees also received points for their 2013 and 2014 performance evaluation scores. A score of Developing received one point in the rate and rank while a score of Performing received three points. According to Verizon's formal protocols, which were sent to Magee and Gross in March 2015, only the person with the lowest score in the rate and rank could be terminated.

         Magee and Gross, however, did not engage in this formal rate and rank process to make their termination decision. Instead, they spoke by telephone and orally agreed to select Walker for termination. Magee then contrived a rate and rank that justified his decision to fire her.[5] In that rate and rank, Walker received thirteen points, the lowest score among the members of Magee's team. With respect to her 2013 performance evaluation, Walker received only one point because her 2013 score was Developing. In addition, as a result of Magee's input, the rate and rank form stated that Walker "received a D[eveloping] rating in 2013 as she hadn't learned the core engineering role as quickly as expected and was more administrative than proficient in the engineering role."[6]

         Three members of Magee's team were between twelve and twenty-six years younger than Walker. Like Walker, the employee twelve years younger than she had received a Developing rating in 2013. However, unlike Walker, the younger employee had not taken FMLA leave in 2013. That employee received fifteen points on the rate and rank compared to Walker's thirteen points. Walker and this younger employee had the two lowest scores on the rate and rank. If Magee had not assigned Walker a score of Developing in 2013, the year that she took FMLA leave, Walker would have received two additional points on the rate and rank, giving her the same score as that younger employee.

         In addition, unlike Walker, the younger employee was subject to a formal performance improvement plan corrective action as a result of his poor performance. Nonetheless, Magee failed to take this corrective action into account on the rate and rank form despite being required to do so. If Magee had done so, the younger employee would have lost three points. This would have left him with a lower score than Walker, who had never been placed on a performance improvement plan.[7] Under Verizon's directive, only the person with the lowest score could be terminated as a part of the 2015 reduction in force.

         After a five-day trial, the jury returned its verdict on May 25, 2017. Although it did not find for Walker on her claim of disability retaliation, the jury found that Verizon had committed age discrimination and medical leave retaliation. It awarded $188, 000 in back pay damages, $256, 000 in front pay damages, and $10, 000 in pain and suffering damages against Verizon in favor of Walker. The court entered judgment accordingly.

         II.

         We begin with the renewed motion of defendant Verizon for judgment as a matter of law.[8] Verizon moved orally for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure at the close of evidence in Walker's case.[9] The court denied the motion. Verizon has now renewed its motion for judgment as a matter of law pursuant to Rule 50 (b) .[10]

         The defendant is entitled to relief under Rule 50(b) only if the plaintiff "has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for [the plaintiff] on that issue." See Reeves, 530 U.S. at 149. This form of relief is "granted sparingly" and reserved only for those cases "where 'the record is critically deficient of the minimum quantum of evidence' in support of the verdict." See Eshelman v. Agere Sys., 554 F.3d 426, 433 (3d Cir. 2009) (quoting Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)). "The question is not whether there is literally no evidence supporting the unsuccessful party, but whether there is evidence upon which a reasonable jury could properly have found its verdict." Id. (quoting Gomez, 71 F.3d at 1083).

         "[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record[, ] .... the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves, 530 U.S. at 150-51. The court is required to "disregard all evidence favorable to the moving party that the jury is not required to believe." Id. at 151. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 150-51 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) .

         The jury found in favor of Walker on two of her claims: FMLA retaliation and age discrimination. She offered circumstantial evidence in support of both claims. See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). After the defendant "articulate[s] some legitimate, nondiscriminatory reason" for its termination of the plaintiff, the plaintiff has the burden to "point to some evidence, direct or circumstantial, from which a factfinder could reasonably . . . disbelieve [the employer's] articulated legitimate reasons." See Lichtenstein, 691 F.3d at 302 (quoting McDonnell Douglas, 411 U.S. at 802; Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

         First, as to Walker's FMLA retaliation claim, the FMLA "entitle[s] employees to take reasonable leave for medical reasons" and prohibits discharging employees in retaliation for taking medical leave. See id. at 300-01 (citing 29 U.S.C. §§ 2601(b)(2), 2615(a)). Employers may not consider an employee's FMLA leave "as a negative factor in employment actions such as hiring, promotions or disciplinary actions." See id. at 301 (emphasis added) (quoting 29 C.F.R. § 825.220(c)). In order to prevail on her FMLA retaliation claim, Walker had to prove that "(1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights." Id. at 301-02. Here, Verizon does not dispute that Walker proved the first two elements. Walker took FMLA leave from April 26, 2013 to July 14, 2013 and was terminated from her employment on April 25, 2015.

         Verizon argues that Walker did not meet her burden to prove a causal connection between her termination and her FMLA leave. In proving a causal connection, the plaintiff "must point to evidence sufficient to create an inference that a causative link exists between her FMLA leave and her termination." See id. at 307. Verizon claims that Walker could prove a causal link only by either producing evidence of a temporal connection between her termination and her FMLA leave or showing that she was the victim of ongoing antagonism. However, our Court of Appeals has explained that "[w]here the temporal proximity is not 'unusually suggestive, ' we ask whether 'the proffered evidence, looked at as a whole, may suffice to raise the inference'" of a causal link. See id. (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)). In this regard, the plaintiff can rely on evidence of "intervening antagonism or retaliatory animus, inconsistencies in the employer's articulated reasons for terminating the employee, or any other evidence in the record sufficient to support the inference of retaliatory animus." LeBoon, 503 F.3d at 232-33.

         Moreover, Walker pursued a mixed-motive theory on her FMLA retaliation claim. Under this theory, Walker was merely required to prove that her taking of FMLA leave was a motivating factor in her termination. "[A]n employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted." Lichtenstein, 691 F.3d at 301. Rather, a plaintiff may prevail on a FMLA retaliation claim by showing that the taking of FMLA leave was a negative factor considered by the employer in her termination. See Id. (citing 29 C.F.R. § 825.220(c)); Egan v. Del. River Port Auth., 851 F.3d 263, 274 (3d Cir. 2017). Verizon did not object to the jury instruction on the mixed-motive test at trial and cannot now argue that a different standard was appropriate.

         There was more than sufficient evidence from which a reasonable jury could find that Walker's taking of FMLA leave was causally linked to Verizon's decision to terminate her. In terminating Walker, Verizon assigned only one out of five possible points on the rate and rank form to Walker because of her Developing score in 2013. A reasonable jury could have found that Magee gave Walker that Developing score in 2013 because of her FMLA leave. A mere three weeks after Walker had returned from 2.5 months of FMLA leave, Magee wrote in Walker's 2013 mid-year review that "Suzette [Walker] has missed time due to an injury, which has made the transition difficult." It is apparent that Magee considered Walker's FMLA leave to be a negative factor in her mid-year review. It was reasonable for the jury to discredit any testimony by Magee to the contrary.

         The jury could have also reasonably found that Magee took Walker's FMLA leave into account when he conducted her 2013 year-end review. His mid-year concerns about Walker's FMLA leave were incorporated into the 2013 year-end review. Further, in justifying his decision to fire Walker in 2015 on the rate and rank form, Magee emphasized that Walker was slow to learn her job responsibilities in 2013. He explained that Walker had "received a D[eveloping] rating in 2013, as she hadn't learned the core engineering role as quickly as expected." A reasonable jury could infer that Magee decided to fire Walker in 2015 because she had not "quickly" learned her job responsibilities as a result of her 2013 FMLA leave.

         Although Magee testified that he made his decision to terminate Walker before completing the rate and rank paperwork, a reasonable jury did not have to credit this testimony. However, even if the jury believed that Magee had selected Walker for the reduction in force prior to completing the rate and rank form, his comments on the rate and rank form are evidence of the reasons that he had in mind in selecting her for termination. It is apparent from those comments that Magee took into account Walker's slow transition into her role in 2013 when he selected her for termination.

         Verizon does not dispute that the employee with the second-lowest score in the rate and rank did not take FMLA leave during the relevant time period. Although that employee was subject to a formal performance improvement plan corrective action as a result of his poor performance, Magee did not deduct three points from that employee's rate and rank score as he was required to do. Deducting the three points from that employee's score would have placed him at the bottom of the rate and rank and required that he, not Walker, be terminated. A reasonable jury could find that Magee contrived the rate and rank in order to justify his preconceived decision to terminate Walker because of her FMLA leave.

         Turning next to Walker's age discrimination claim, the ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's age." See 29 U.S.C. § 623(a)(1). To prevail on her age discrimination claim, Walker had to prove that she "(1) was a member of the protected class, i.e., was over 40, (2) was qualified for the position, (3) suffered an adverse employment decision, and (4) .... the employer retained a sufficiently younger similarly situated employee." See Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300-01 (3d Cir. 2004). Ultimately, Walker had to prove that her age was the "but-for" cause of her termination. See Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015).

         Verizon asserts that, with respect to Walker's age discrimination claim, "the sufficiency of the evidence issue boils down to whether the plaintiff introduced sufficient evidence to permit a finding that the defendant's proffered reason was a “pretext.'" Our Court of Appeals has held that the plaintiff may prove pretext in one of two ways. First, the plaintiff may "point to evidence that would allow a factfinder to disbelieve the employer's reason for the adverse employment action." See Willis, 808 F.3d at 644 (citing Fuentes, 32 F.3d at 765). This evidence "must indicate 'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons' to satisfy the factfinder that the employer's actions could not have been for nondiscriminatory reasons." See id. at 644-45. Second, a plaintiff may prove that the employer's purported reason is pretext for discrimination by "point[ing] to evidence that would allow a factfinder to believe that an invidious discriminatory reason was 'more likely than not a motivating or determinative cause' of the employer's action." See id. at 645.

         Here, there was sufficient evidence for a reasonable jury to find that Walker was terminated because of her age. Verizon has argued that Magee selected Walker for the reduction in force because, despite being a good employee, she was the weakest member on Magee's team. There was testimony that Magee may have followed one of two different processes in making his decision to terminate Walker. Magee testified that he made his decision to terminate Walker during a phone call with Gross before ...


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