BRADEN v. LOCKHEED MARTIN CORPORATION
Filing
140
OPINION. Signed by Judge Renee Marie Bumb on 12/18/2017. (tf, )
[Dkt. No. 114]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ROBERT BRADEN,
Plaintiff,
Civil No. 14-4215(RMB/JS)
v.
OPINION
LOCKHEED MARTIN CORP.,
Defendant.
APPEARANCES:
Rahul Munshi, Esq. (pro hac vice)
Laura C. Mattiacci, Esq.
Susan M. Saint-Antoine, Esq.
Emily Rose Derstine Friesen, Esq.
Console Mattiacci, LLC
1525 Locust Street, 9th Floor
Philadelphia, PA 19102
-andStephen G. Console, Esq.
Megan Knowlton Balne, Esq.
Console Mattiacci, LLC
110 Marter Ave, Suite 105
Moorestown, NJ 08057
Attorneys for Plaintiff.
Anjanette Cabrera, Esq.
Constangy, Brooks, Smith & Prophete
620 Eighth Avenue, 38th Floor
New York, NY 10018
-andTamika Nordstrom, Esq, (pro hac vice)
Constangy, Brooks, Smith & Prophete
1
230 Peachtree Street, NW, Suite 2400
Atlanta, GA 30303
-andRodrick D. Holmes, Esq. (pro hac vice)
Constangy, Brooks, Smith & Prophete
6000 Poplar Avenue, Suite 250
Memphis, TN 38119
-andMichael Gaston-Bell, Esq. (pro hac vice)
Constangy, Brooks, Smith & Prophete
Kansas City, MO 64108
-andKannon K. Shanmugam, Esq. (pro hac vice)
Williams & Connolly LLP,
725 12th Street, N.W.
Washington, DC 20005
Attorneys for Defendant.
BUMB, United States District Judge:
At the close of a four-day trial, a jury found that
Defendant Lockheed Martin Corp. (“Defendant” or “Lockheed”)
discriminated against Plaintiff Robert Braden (“Plaintiff” or
“Braden”) on the basis of age, in violation of the Age
Discrimination in Employment Act, as amended, 29 U.S.C. §
621, et seq. (“ADEA”), and the New Jersey Law Against
Discrimination, N.J.S.A. § 10:5-1, et seq. (the “NJLAD”). The
jury awarded Plaintiff $520,000 for lost wages and benefits,
$520,000 for emotional distress, and $50,000,000 in punitive
damages. 1
1
The Plaintiff was also awarded $520,000 in liquidated damages
pursuant to the ADEA, 29 U.S.C. § 626(b), and $4,212.00 in
2
This matter now comes before the Court upon the filing of
an omnibus post-trial Motion by Defendant seeking judgment as a
matter of law as to both liability and damages pursuant to Fed.
R. Civ. P. 50(b), a New Trial pursuant to Fed. R. Civ. P. 59, or
Remittitur of the jury’s emotional distress and punitive damages
awards. For the reasons set forth below, Defendant’s Motion for
Judgment as a Matter of Law shall be DENIED, Defendant’s Motion
for a New Trial shall be GRANTED, in part, and DENIED, in part,
and Defendant’s Motion for Remittitur of emotional damages shall
be DENIED. Because the Court grants Defendant’s motion for a new
trial on the issue of punitive damages, it need not reach
Defendant’s motion to remit the punitive damages award.
I.
Background
a. Procedural Background
On July 2, 2014 Plaintiff filed a two-count complaint
alleging that Lockheed terminated his employment because of his
age, in violation of the ADEA and the NJLAD. This Court has
jurisdiction over plaintiff's ADEA claim pursuant to 28 U.S.C. §
1331 and exercises supplemental jurisdiction over plaintiff's
NJLAD claim pursuant to 28 U.S.C. § 1367(a).
prejudgment interest. These awards are not the subject of
Defendant’s omnibus motion.
3
Lockheed moved for summary judgment on October 20, 2015,
seeking dismissal of Plaintiff’s discrimination claims on two
bases. First, Defendant argued that Plaintiff could not
establish a prima facie case of age discrimination under the
framework initially set forth by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). 2 Specifically,
Lockheed argued that the evidence of record was insufficient to
establish that a similarly situated younger person was retained
or hired to fill Plaintiff’s position. See Anderson v. Consol.
Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002). Second, Lockheed
contended that even had Plaintiff established a prima facie case
of age discrimination, Lockheed had proffered a legitimate, nondiscriminatory business reason for terminating Plaintiff –current or projected lack of work -– and Plaintiff had failed to
establish that such reason was pretextual.
On May 11, 2016, this Court issued a Memorandum Order
denying summary judgment, finding that (i) whether employees
retained by Lockheed were sufficiently “similarly situated” to
Plaintiff was a genuinely disputed issue of fact which a jury
2
As will be discussed further below, claims of age
discrimination under the ADEA and the NJLAD are evaluated under
the same framework. See, e.g., Bergen Commercial Bank v. Sisler,
157 N.J. 188, 200 (1999).
4
should resolve, and (ii) Plaintiff had identified sufficient
evidence of pretext to survive summary judgment. (Dkt. No. 35).
Lockheed filed a motion for reconsideration on May 23, 2016,
which this Court denied on July 28, 2016. (Dkt. No. 39).
On January 6, 2017, Lockheed filed two motions in limine
seeking to exclude various evidence and testimony and to
bifurcate the issues of liability and damages at trial. Among
other things, Lockheed sought to exclude testimony regarding an
age discriminatory remark allegedly made by Jay Hansen,
Plaintiff’s direct manager’s (James Judd) manager at the time of
the alleged comment, about “getting rid” of Plaintiff, as well
as testimony from Plaintiff regarding the emotional distress he
suffered as a result of his termination. With regard to Hansen’s
statement, Lockheed argued that it was alleged to have been made
so long before Plaintiff’s termination that it could not
possibly be relevant, and that even if it were relevant it was
unduly prejudicial. With regard to Plaintiff’s testimony
regarding his emotional distress, Lockheed argued that
Plaintiff, as a lay person, was not competent to testify
regarding what Lockheed qualified as medical diagnoses, and that
any such testimony would be unduly prejudicial.
The Court held oral argument on the Defendant’s motions on
January 19, 2017. At that hearing, the Court made several
5
rulings, one of which is relevant to the pending motions. As is
discussed in greater detail below, the Court denied Lockheed’s
request to exclude testimony regarding Jay Hansen’s alleged
comment about “getting rid” of Plaintiff, holding, in general,
that the comment set the gears of discrimination in motion, and
the jury could decide what weight to give the testimony, if any.
(1/19/17 Oral Arg. Tr. at 7:17-8:25).
A jury trial was held from January 23, 2017 through January
26, 2017. Plaintiff called three witnesses: Dennis Gillespie, a
Human Resources Business Partner for Lockheed at the time
Plaintiff worked there; Christopher Kebalo, a Director with
oversight of the unit in which Plaintiff worked; and Plaintiff
himself. Plaintiff also relied on various documentary evidence,
which constituted a significant portion of his case and much of
which is described in further detail below. At the close of the
Plaintiff’s case-in-chief, Defendant moved for judgment as a
matter of law under Fed. R. Civ. P. 50. Defendant argued that
Plaintiff had failed to present evidence sufficient for a
reasonable jury to find that Lockheed had retained a similarly
situated younger employee when it terminated Plaintiff. (Trial
Transcript “Tr.” 295:5-7). The Court denied the motion, finding
that Plaintiff had presented sufficient evidence to warrant
submission of the case to the jury.
6
Defendant called James Judd, Plaintiff’s manager from the
early 2000s; Hansen, the upper-level manager from Lockheed whom
Plaintiff alleged had made age-related comments about Plaintiff;
Gillespie, the Human Resources Business Partner; Christopher
Renna, the manager of Plaintiff’s unit at the time of his
termination and the individual who selected Plaintiff for
termination; and Kebalo, the Director of the unit. At the close
of its case, Defendant again moved for judgment as a matter of
law, arguing that Plaintiff had failed to submit sufficient
evidence to establish that Lockheed had retained a similarly
situated younger employee and that Plaintiff had failed to
establish that Lockheed’s justification for firing Plaintiff was
pretext.
The Court denied Defendant’s motion. The case was submitted
to the jury, which found for Plaintiff and awarded him $520,000
in compensatory damages and $520,000 in emotional damages. The
jury also found that Lockheed’s violation had been willful,
triggering an award of $520,000 in liquidated damages under the
ADEA. See 29 U.S.C. § 626(b).
After reaching a verdict on liability, the jury heard
Plaintiff’s case on punitive damages, which consisted of
Plaintiff’s testimony, in his capacity as a Lockheed shareholder
and long-time employee, about the worth of Lockheed. (Tr. 7337
742). Plaintiff initially sought to question in-house counsel
for Lockheed, who was present at trial, but relented upon
Defendant’s objection. (Tr. 720-23). Defendant cross-examined
Plaintiff but presented no witnesses of its own. Defendant did
not move for judgment as a matter of law at the close of the
punitive phase. After a short deliberation, the jury returned a
punitive damages award of $50,000,000. Defendant orally moved to
remit the jury’s award. The Court responded that it would
receive the parties’ written submissions.
The Court entered Judgment on February 6, 2017. On March 6,
2017, the parties filed the pending motions.
b. Trial
As noted above, the jury found for Plaintiff after a fourday trial. The following constitutes a summary of the evidence
presented at trial. 3
Plaintiff was born on February 27, 1946. He was hired as an
engineer by RCA, a predecessor to Lockheed, in December, 1984,
and remained employed with the company, through a series of
mergers, until 2012 when he was terminated as part of a
Reduction-in-Force (“RIF”), a mass layoff by the company.
Plaintiff was 66 years old at the time of his termination, and
3
As the parties are fully familiar with the record, the Court
summarizes the testimony only.
8
he maintains that he was selected for the RIF because of his
age.
i. Plaintiff’s Positions at Lockheed; Corporate
Structure
Plaintiff served in a number of positions in his 28 years
at Lockheed. In 2010, he was moved for the final time from the
“New Ventures” program to the Hardware Engineering Organization
(“Hardware Engineering”) within the Mission Systems and Sensors
(“MS2”) business unit. At the time of his termination, Plaintiff
was serving as a Project Specialist, Senior Staff (“PSSS”) and
working largely on “Anti-Tamper” technology. 4 Employees
designated as PSSS were engineers with significant technical
experience, but did not typically have other employees reporting
directly to them. Plaintiff was part of a group of employees who
reported directly to Christopher Renna, a staff manager in the
MS2 unit. The other PSSS employees in Plaintiff’s group were
James Reynolds and Kim Tighe who were 47 and 34 years old,
respectively, at the time of the RIF. Neither Reynolds nor Tighe
was terminated.
4
“Anti-Tamper” refers to hardware installed in electronics and
computers to protect them from “hacking and intrustion for
reverse engineering or stealing secret information.” (Tr.
182:12-15).
9
Renna, in turn, reported to Christopher Kebalo, the
Director of Hardware Engineering. Kebalo’s direct superior was
Jay Hansen. Hardware Engineering fell within the ambit of “Tech
Ops,” and the Vice President in charge of “Tech Ops” for MS2 was
Norm Malnak.
ii. Performance Evaluations
During Plaintiff’s time at Lockheed the company undertook a
yearly formal evaluation process for its employees. Throughout
the year, individuals who worked closely with or who had firsthand knowledge of the employee’s performance, known as “multiraters,” could provide written feedback through Lockheed’s
automated performance review system. In Plaintiff’s case, these
individuals were typically project managers and other employees
working with Plaintiff on projects to which he was assigned.
At the end of each evaluation period, a manager would
generate an overall score for an employee, taking multi-rater
feedback into account. As noted, at the time Plaintiff was
selected for the RIF, his manager was Christopher Renna. The
manager would bring this preliminary numeric rating to a “rating
and ranking session” with other managers to discuss the rankings
for all of the employees in a given group. The outcome of this
process was an overall rating from 1 to 5 (best to worst) for
each person. These ratings were subject to a required
10
distribution put in place by Lockheed so that the employees
could be ranked against one another. Occasionally, to meet these
rating distribution targets, some employees’ scores would be
lowered. Managers had discretion regarding the information
ultimately documented in the final written review as well as the
employee’s final rating and ranking.
In 2010 and 2011 -– the two years preceding his termination
-– Plaintiff was rated as a “Basic Contributor,” the second
lowest possible score. (Pl. Tr. Ex. “PTX”-4, 6). At trial,
Plaintiff testified that these reviews and the review process
were manipulated by Lockheed as a way to push him out. Plaintiff
testified, in essence, that from as early as 2001, his scores
were artificially lowered to the point that they were
inconsistent with his multi-rater feedback. (See PTX-5, 7). He
also testified and presented evidence that in his later years at
the company, the younger employees in his group, particularly
Reynolds (age 47 at the time of Plaintiff’s termination),
received scores that were artificially high when compared to
their multi-rater feedback.
Plaintiff testified that around 2002, the first time he
received a score that he felt was unfairly low, he approached
his manager, Judd, who told him that Hansen, Judd’s supervisor,
had stated “Rob’s been there too long, it’s time to get rid of
11
him.” Both Judd and Hansen testified at trial, and both denied
that this statement was ever made. Although Plaintiff testified
that Hansen was not his supervisor at the time of the RIF and
that he was not aware if Hansen played any role in the decision
to include him in the RIF, he also testified that the rankings
from one year would be used as a “starting point” for future
rankings. (Tr. 162:1-3).
At trial, Defendant contested both the fact of Plaintiff’s
reviews being contrived and whether the reviews were the basis
of his termination. Defendant presented testimony through both
Renna and Kebalo that the RIF was an age-neutral process taken
as a measure to curb rising costs to customers. Both Renna and
Kebalo also testified that Plaintiff was selected for the RIF
due to “workload softness” -- a current and projected lack of
work. Defendant also presented testimony through Renna that
Plaintiff was “difficult” to work with, leading to bad reviews
and contributing, at least in part, to his lack of work. As
proof that Plaintiff was experiencing “workload softness,”
Defendant presented an email sent from Renna to Kebalo in July
2011, warning that Plaintiff would be going “idle” part-time
because some of the projects on which he was working were “being
stopped for the near future.” (Def. Tr. Ex. “DTX”-39).
iii. Lockheed’s Documentation
12
Plaintiff relied heavily at trial on documentary evidence,
specifically a Power Point presentation titled “MS2 Workforce
Reduction Analyses and Recommendation” (the “RIF Analysis”).
(PTX-19). The RIF Analysis was prepared by Lockheed 5 in February
2012 and contained a series of slides summarizing the reasons
for the RIF and the methodology to be used in carrying it out.
The title slide listed the names of eleven high level Lockheed
employees, including Norm Malnak.
The RIF Analysis set forth the “Business Case for [the]
2012 MS2 Reduction.” (See PTX-19 at 1074). According to this
analysis, MS2 had become “top heavy” with too many upper-level
employees and a “shrinking talent pipeline.” (Id. at 1086). This
called for MS2 to “Do 8.4% (479) Upper Level Exempt Reductions
and Hire 185 Entry Levels.” (Id. at 1074)(emphasis in original).
The stated purpose of this reduction of upper level employees
and influx of entry levels was “Aligning [the] Engineering
Workforce to Future Customer Affordability, With [the] Right
Skills.” (Id.)(emphasis in original). Lockheed referred to the
end result of this process as a “re-energized” entry level
pipeline. (Id. at 1079). Multiple witnesses testified at trial
that this “pipeline” tended to refer to younger employees.
5
There was no evidence presented at trial as to who exactly it
was that prepared this presentation.
13
iv. Voluntary Layoff Program
The RIF consisted of two stages, which Lockheed announced
simultaneously. First, there was a “Voluntary Layoff Incentive
Program” (“VLIP”) through which employees could voluntarily
leave the company and receive a payout. There was no age
requirement for the VLIP, but according to the RIF, only
employees at “Level 3” -– non “entry-level” -– and above were
eligible. The VLIP served as “risk mitigation for involuntary
selection adverse impact.” (PTX-19 at 1075). In connection with
the VLIP, Lockheed prepared, among other things, three charts
analyzing “employees with a high probability of accepting VLIP”
and an analysis of a previous RIF. (Id. at 1075, 755). Each of
the three charts divided employees into groups based on age and
years of service with the company. Only employees who were at
least 50 years old and had at least 15 years of service were
included in these charts. (Id. at 1081-83). These charts further
highlighted those employees who were at least 60 years old and
had been with the company for at least 15 years. (Id.)
Defendant presented testimony through Kebalo that these
charts were not evidence of Lockheed targeting older employees,
but were merely an assessment of those most likely to volunteer.
This analysis was necessary, according to Kebalo, because the
company had to prepare itself for the loss of experienced
14
employees that this layoff would inevitably bring about. In
fact, Kebalo testified, the company did not desire such a
result, but considered it a threat. To further support its
position that the VLIP was not aimed at older employees,
Defendant presented the testimony of Gillespie -- who had
accepted a voluntary layoff -- that employees interested in
participating in the VLIP had to apply, and that some employees
who applied for the VLIP were rejected. (Tr. at 384-85).
v. Involuntary Layoffs/Communities of Interest
At the conclusion of the VLIP, there was an involuntary
layoff during which certain employees who had not volunteered
were selected for termination. Lockheed prepared a schedule for
the involuntary portion of the RIF that called for management to
take several steps before selecting employees for involuntary
termination. (See PTX-19 at 1076). The step most critical to
this case was the one that required Lockheed to create
“Communities of Interest” (“COI”), which were groupings of
employees based on their skills and the type of work they were
doing. COIs were further divided by employee “level,” which is
based on position and years of service, among other things. Once
these COIs were created and employees were placed into them,
managers and directors were to identify which COIs would be
affected by the RIF, create a list of “critical skills” for each
15
COI, rank the employees in each COI, and finally select those to
be laid off. (Id.)
The undisputed evidence at trial was that Lockheed, and
specifically Renna, placed Plaintiff in a COI of one. (Tr.
125:21-25). He was placed in the “Digital Design” COI, and was
the only Level 5 employee placed in that group. This COI was
eliminated. Because Renna place Plaintiff into a COI of one, the
RIF’s further directives, such as ranking, became moot. In other
words, no one at Lockheed ever created a list of “critical
skills” for Plaintiff in connection with the RIF, nor did anyone
-– or was it possible to -- rank him within his COI. Lockheed
attempted to justify its placement of Plaintiff into a COI of
one by presenting evidence through Kebalo and Renna that
Plaintiff was the only employee in MS2 doing the type of work he
was doing. They testified that it was not necessary to further
determine Plaintiff’s “critical skills” because his entire COI
was subject to “workload softness” and needed to be eliminated.
Plaintiff, however, disputed this testimony. He testified that
“Digital Design” did not accurately reflect his skillset or the
work he was doing. As noted, Plaintiff was transferred into
Renna’s group in 2010, and Renna testified that he had never
made an effort to learn what skills Plaintiff had developed up
to that point. Renna testified that he “never had a meeting to
16
probe [Plaintiff’s] skills [sic] sets,” and that he never had a
“conversation” with anyone who had previously worked with
Plaintiff to determine what Plaintiff was good at. (Id. at
492:4-11).
II.
Judgment as a Matter of Law
a. Legal Standard
A motion for judgment as a matter of law may be granted
where “a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on
that issue.” Fed. R. Civ. P. 50(a)(1). If the Court denies a
motion for judgment as a matter of law raised during trial, the
moving party may renew that motion post-trial under Fed. R. Civ.
P. 50(b). In order to preserve the right to renew a motion for
judgment as a matter of law, the moving party must raise a Rule
50(a) motion with “sufficient specificity to put the [nonmovant]
on notice” before the case is submitted to the jury. Williams v.
Runyon, 130 F.3d 568, 571-72 (3d Cir. 1997).
A Rule 50 motion “should only be granted if ‘the record is
critically deficient of that minimum quantity of evidence from
which a jury might reasonably afford relief.” Raiczyk v. Ocean
County Veterinary Hospital, 377 F.3d 266, 269 (3d Cir.
2004)(citing Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d
17
243, 249 (3d Cir. 2001)). “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.” Johnson v. Campbell, 332 F.3d
199, 204 (3d Cir. 2003)(emphasis in original) (citation and
internal quotation marks omitted).
“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.’”
TransWeb, LLC v. 3M Innovative Properties Co., 16 F. Supp. 3d
385, 391–92 (D.N.J. 2014) (quoting Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1166 (3d Cir.1993), aff'd, 812 F.3d 1295
(Fed. Cir. 2016)). The Court must “disregard all evidence
favorable to the moving party that the jury is not required to
believe . . . [t]hat is . . . give credence to the evidence
favoring the nonmovant as well as that evidence supporting the
moving party that is uncontradicted and unimpeached, at least to
the extent that that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 151 (2000)(citation and internal quotation marks omitted).
b. Liability under the ADEA and the NJLAD
Defendant argues that it is entitled to judgment as a
matter of law because (1) Plaintiff failed to establish a prima
18
facie case of age discrimination under the ADEA or the NJLAD; 6
(2) even if Plaintiff had established a prima facie case,
6
Plaintiff argues that on a motion for judgment as a matter of
law it is improper for the Court to consider the argument that a
plaintiff failed to establish an element of its prima facie
case. Instead, Plaintiff argues, the Court should simply focus
on the “ultimate question,” i.e., whether Defendant
intentionally discriminated against Plaintiff. To this end,
Plaintiff contends that the issue at this stage is “whether
there was evidence, direct or circumstantial, which when viewed
cumulatively was sufficient for the jury to either disbelieve
Defendant’s articulated reason(s) or believe that an invidious
discriminatory reason was more likely than not a determinative
cause of the employer’s action.” (Pl.’s Br. at 3).
While Plaintiff may be correct that this Court’s duty at
this stage is not to evaluate the prima facie case, see U.S.
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983), elements of the prima facie case are often subsumed into
the ultimate determination of discrimination. See Marra v.
Philadelphia Hous. Auth., 497 F.3d 286, 301 n. 13 (3d Cir. 2007)
(“any difference in our analysis at this stage is probably more
semantic than substantive.”). In fact, the jury in this case was
instructed that “[t]o prevail . . . Mr. Braden must prove . . .
[that] at the time of the layoff Lockheed Martin Corporation
retained a similarly situated substantially younger employee.”
(Tr. 701:19-23).
Whether framed as an element of the prima facie case or
indirect evidence of discrimination more generally, if Plaintiff
did not establish that either Reynolds or Tighe were similarly
situated to him, he could likely not have established that
Defendant discriminated against him based on his age. Plaintiff
tried his case based on circumstantial evidence of
discriminatory intent, and younger employees being retained
while he was let go is a significant part of that theory.
Therefore, the Court will proceed to analyze whether Plaintiff
set forth sufficient evidence to establish the fourth element of
the prima facie case. See Bruno v. W.B. Saunders Co., 882 F.2d
760, 764 n. 2 (“[a]lthough we do not address this contention in
terms of the prima facie case, it may be that our inquiry into
the sufficiency of the evidence to support . . . an inference
[of discrimination] will not differ markedly from an inquiry
19
Defendant offered a legitimate, non-discriminatory reason for
his termination; and (3) Plantiff failed to establish that
Defendant’s proffered non-discriminatory explanation was
pretextual.
Plaintiff relied on circumstantial evidence to establish
his age discrimination claims. Age discrimination claims based
on circumstantial evidence under both the ADEA and the NJLAD are
evaluated under the McDonell Douglas burden shifting framework.
Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir.
2002)(citation omitted); Bergen Comm. Bank v. Sisler, 157 N.J.
188, 200 (1999). First, to raise the inference of
discrimination, a plaintiff must establish a prima facie case by
showing that he or she was a member of a protected class who was
qualified for the position at issue and suffered an adverse
employment action. Anderson, 297 F.3d at 249 (citing Showalter
v. University of Pittsburgh Med. Ctr., 190 F.3d 231, 234-35 (3d
Cir. 1999); Connors v. Chrysler Financial Group, 160 F.3d at
973–74). Additionally, in the context of an RIF, a plaintiff
must establish that the employer retained a “sufficiently
younger” employee who was “similarly situated” to the plaintiff.
into whether the plaintiff has introduced evidence sufficient to
establish one of the elements essential to [his] prima facie
case.”) (citation omitted).
20
Anderson, 297 F.3d at 249; Monaco v. Am. Gen. Assur. Co., 359
F.3d 296, 305 (3d Cir. 2004).
To rebut the inference of discrimination created by the
prima facie case, the defendant must “offer evidence that is
sufficient, if believed, to support a finding that it had a
legitimate, nondiscriminatory reason for the discharge.”
Showalter, 190 F.3d at 235 (citations omitted). If the defendant
satisfies this burden, then the plaintiff must establish that
the reasons offered by Defendant are pretextual, and that the
actual reason for the adverse employment action was age
discrimination. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994).
The Court will focus its analysis on whether the evidence
was sufficient for a reasonable jury to find that: Defendant
retained a similarly situated younger employee when it
terminated Plaintiff; Defendant offered a legitimate nondiscriminatory reason for terminating Plaintiff; and Plaintiff
established that Defendant’s proferred reason was pretextual.
i. Whether Reynolds or Tighe were “Similarly
Situated” to Plaintiff
Under both the ADEA and the NJLAD, in order to raise the
rebuttable inference of discrimination in an RIF age
discrimination case, a plaintiff must show that an employer
21
retained a similarly situated employee who was sufficiently
younger than the plaintiff. Monaco, 359 F.3d at 305. 7 This
requirement exists because these are not “bumping statute[s] . .
. guaranteeing a protected employee a job at the expense of a
sufficiently younger employee.” Anderson, 297 F.3d at 250.
The Court in Monaco set forth the analysis used in this
Circuit to determine if two employees are similarly situated:
[A]n individual does not need to be situated
identically to satisfy the fourth element of a
plaintiff's prima facie case . . . . In order to
determine who might qualify as a similarly situated
employee we must look to the job function, level of
supervisory responsibility and salary, as well as
other factors relevant to the particular workplace.
This determination requires a court to undertake a
fact-intensive inquiry on a case-by-case basis rather
than in a mechanistic and inflexible manner.
Id. (citation omitted).
This fact-intensive inquiry is “based on a whole
constellation of factors facing [an] individual employee.” Id.
at 306. The jury was instructed as much. The Court charged them
that
[i]n determining whether a similarly situated,
substantially younger employee was retained, the fact
that the employee may hold the same joint title does
7
Plaintiff was 66 years old at the time he was selected for the
RIF. Reynolds and Tighe, who were retained and whom Plaintiff
contends were similarly situated, were 47 and 34, respectively.
(TR.157:18-24). There is no dispute that these employees were
sufficiently younger than Plaintiff. Therefore, the Court
focuses on whether they were similarly situated.
22
not necessarily mean that they are similarly situated.
That is for you to decide. You may consider factors
such as the employee’s job title, job functions, level
of supervisory authority, salary, and any other
factors you deem relevant.
(Tr. 701:23-702:5).
At trial, Plaintiff elicited testimony and submitted
documentary evidence regarding Reynolds and Tighe. Defendant
contended at trial and maintains in its current motion that
neither of these employees was similarly situated to Plaintiff.
Because there was substantially more evidence presented
regarding Reynolds, the Court will concentrate on whether
Plaintiff and Reynolds were similarly situated.
Plaintiff presented evidence of several commonalities
between himself and Reynolds. At the time of the RIF, Plaintiff
and Reynolds were both serving in the PSSS position in the “Tech
Ops” unit of MS2 and were both “Level 5” employees with the same
job code, job description, and who reported directly to
Christopher Renna. (Tr. at 101:6-9; 151:14-23; 152:25-153:3;
157:6-13; 393:23-394:16; 395:18-23; PTX-3). Further, Plaintiff
testified that he and Reynolds performed the same basic job
duties, including serving as “technical leaders” on projects
involving equipment engineering work. (Tr. at 159:1-6; 193:1820; PTX-7 at 1425). Moreover, Renna testified that Level 5
employees tend to be versatile and qualified to do many
23
different things. (Tr. at 399:14-17). Finally, Plaintiff and
Renna both testified that when Renna conducted performance
reviews and ranked and rated employees, he compared Reynolds and
Plaintiff against one another. (Id. at 497:19-25).
Defendant argues that Reynolds and Plaintiff were not
similarly situated because they had different job functions,
levels of supervisory responsibility, and salary, three factors
relevant to the jury’s consideration under Monaco. Specifically,
Defendant points to the testimony of Renna that Reynolds was
working as the “test and evaluation lead” on the “most important
program” in the Hardware Engineering Organization, (Id. at 433;
435:7-11), on which he had ten to fifteen engineers reporting to
him, (Id. at 434:17-435:3), and managed a large budget, (Id.)
Defendant compares this to Renna’s testimony that Plaintiff
worked mainly as an “individual contributor” (Id. at 427-28),
working on smaller projects with less responsibility, and was
paid a lower salary. (Id.) Additionally, Defendant points to
multi-rater feedback referring to Reynolds as “management” on a
project and Plaintiff as “support” on another. (PTX-5, 10).
Plaintiff, however, presented multi-rater feedback from multiple
sources referring to him as a “technical leader,” and testified
that he oversaw other employees on various projects. (Tr. 111114, 152:10-15; PTX-5, 7, 8).
24
As set forth above, it is not the Court’s role to weigh
this competing evidence, make credibility determinations, or
substitute its judgment for that of the jury. Rather, the
question at this stage is whether there was a “legally
sufficient evidentiary basis to find for the [Plaintiff] . . .
.” Fed. R. Civ. P. 50(a)(1). The jury was presented with
evidence from both sides and weighed all factors it considered
relevant, as it was instructed to do. It could have reasonably
decided, in light of the similarities between Plaintiff and
Reynolds and considering how work was assigned on a project by
project basis, that Plaintiff and Reynolds were similarly
situated despite the fact that they were working on different
projects at the time of the RIF. (See Tr. at 103-104) (PSSS were
assigned to various projects and programs). The Court will not
disturb the jury’s finding on this issue.
ii. Defendant’s Proffered Legitimate Business
Reason
Because Plaintiff established his prima facie case,
Defendant had the burden to offer any non-discriminatory reason
why Plaintiff was selected for the RIF. Defendant’s burden was
one of production, not proof, and could be met by “introducing
evidence which, taken as true, would permit the conclusion that
there was a nondiscriminatory reason for the unfavorable
25
employment decision.” Bleistine v. Diocese of Trenton, 914 F.
Supp. 2d 628, 639 (D.N.J. 2012). Defendant offered a legitimate
non-age reason for Plaintiff’s termination: “workload softness.”
(Tr. 528:13-25).
Defendant offered evidence that Plaintiff was let go
because the type of work on which he was spending the bulk of
his time, “Anti-Tamper,” was not in high demand and it was
difficult to keep Plaintiff working full-time on clientprojects. (Id. 403:10-405:1). According to Kebalo and Renna,
Defendant’s fear was that a lack of work would lead to portions
of Plaintiff’s salary being charged to clients as overhead,
thereby decreasing profits. (Id. 516:5-7, 529:1-531:21).
iii. Plaintiff’s Showing of Pretext
Plaintiff’s ultimate burden in this case was to establish
that “but for” his age, he would not have been terminated. Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). To meet
this burden at trial, Plaintiff was required to convince the
jury “both that the [Defendant’s legitimate] reason was
false, and that discrimination was the real reason [for
Plaintiff’s termination].” Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994) (emphasis in original)(citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Plaintiff could make
this showing by establishing the elements of his prima facie
26
case and providing to the jury evidence from which it could
either “(1) disbelieve [Defendant]'s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause of
the employer's action.” Fuentes, 32 F.3d at 764 (citations
omitted).
To establish pretext as described above, Plaintiff could
demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in
the [Defendant]'s proffered legitimate reasons for its
action that a reasonable factfinder could rationally
find them “unworthy of credence,” and hence infer
“that the employer did not act for [the asserted] nondiscriminatory reasons” . . . [or] come forward with
sufficient evidence from which a factfinder could
reasonably conclude that an illegitimate factor more
likely than not was a motivating or determinative
cause of the adverse employment decision (e.g., by
showing that the employer in the past had subjected
him to unlawful discriminatory treatment, that the
employer treated other, similarly situated persons not
of his protected class more favorably, or that the
employer has discriminated against other members of
his protected class or other protected categories of
persons).
Id. at 765 (citations omitted). Plaintiff took both of these
approaches at trial.
First, there was evidence in the record upon which the jury
reasonably could have discredited or disbelieved Lockheed’s
“workload softness” justification both generally, and as it
applied to Plaintiff. First, Plaintiff testified that he had a
27
“full plate” of work in the year before the RIF and was working
fifty to sixty hours per week on several projects, some of which
were funded for the rest of 2012 and beyond. (Tr. 178:1-24;
188:12-189:4; PTX-14). To refute this testimony, Defendant
presented the testimony of Kebalo and Renna to establish that
they did not have enough work to keep Plaintiff fully employed.
In support of this testimony, Lockheed offered an email sent
from Renna to Kebalo in 2011 warning that some of the projects
on which he was working were “being stopped for the near
future.” (DTX-39). Other than this generalized testimony,
Defendant did not offer any other meaningful documents, however,
purporting to establish that “workload softness” was an actual
concern or providing any concrete examples of work shortages.
Second, Plaintiff demonstrated the inconsistent testimony
of Gillespie, Kebalo, and Renna regarding why and how Plaintiff
was selected for the RIF. When pressed, each testified variably
that past performance ratings either did or did not lead to
Plaintiff’s selection. (Id. at 121-122 (Gillespie testifying
that performance “may have” played a role in Plaintiff’s
selection but that he did not believe it did); 272:14-16 (Kebalo
testifying that ratings did not play a role); 514:8-12 (Renna
testifying that ratings did play a role)).
28
Further, the testimony of Defendant’s witnesses presented
conflicting conclusions: was Plaintiff selected for the RIF
because he was “struggling to stay employed” due to performance
and personality issues, (Id. at 459:16-23), was Plaintiff truly
placed into in a COI based on his skill set, which happened to
be chosen for elimination, or was Plaintiff placed in a COI of
his own simply for the purpose of eliminating him? As
Plaintiff’s manager, Renna was responsible for selecting
Plaintiff for the RIF. When asked why Plaintiff was selected for
the RIF, Renna testified that “Mr. Braden was, you know, fairly
routinely struggling to stay fully employed so that made him an
obvious consideration.” (Id.) Plaintiff, however, contradicted
this testimony and, hence, a jury could easily have concluded
that Lockheed selected Plaintiff for termination and then placed
into a COI of his own to justify its decision. Renna testified
that at the time employees were placed into COIs, the decision
had not yet been made which COIs would be eliminated. (Id. at
462:25-463:3). A jury, of course, was free to disbelieve such
testimony as well, and it apparently did.
When asked who made the decision to eliminate Plaintiff’s
COI, Renna testified that “once [he] made the decision that Mr.
Braden would be on the candidate list for the RIF,” he “looked
at it and said, well, if there are no others, this could be a
29
candidate for job elimination.” (Id. at 463:14-22).
Again, the
jury was free to conclude that Plaintiff was selected for layoff
because of his age and Lockheed’s placing him into a COI of one
was merely a charade. Plaintiff was the only employee chosen for
his COI – “digital design.” Placement into a COI was a process
“strictly based on [an employee’s] demonstrated skills.” (Tr.
522:22-25). Plaintiff testified that “digital design” did not
accurately reflect his skill set or the type of work he was
doing in 2010-11. (Id. 190:4-15). Renna testified otherwise.
(Id. at 424:3-11). Plaintiff was new to both Renna’s group and
to “Anti-Tamper” work. Renna testified that he was not aware of
the work Plaintiff did before joining the group in 2010, nor did
he ever engage in any effort to determine what skills Plaintiff
possessed. (Id. 486:22-25; 491:14-492:11). Again, the jury was
free to believe Plaintiff and not Renna, and it apparently
agreed with Plaintiff that Lockheed put him into a COI of his
own based on discriminatory motives.
There was also evidence introduced at trial that supported
the jury’s finding that age discrimination was the real reason
for Plaintiff’s termination. Such evidence included the RIF
Analysis prepared by Lockheed. (See PTX-19). This “blueprint,”
as Plaintiff refers to it, included the conclusion that the MS2
unit was “top heavy” and a recommendation that Defendant
30
decrease the number of upper level employees while
simultaneously hiring at the entry level with an eye towards
filling the “shrinking talent pipeline” and ensuring “future
customer affordability.” (Id. at 1074-75, 1086) (emphasis in
original). This document referred to the forecasted result of
this process as a “re-energized” pipeline. (Id. at 1079).
Plantiff elicited testimony from Gillespie that “entry level”
tends to refer to younger employees while “upper level”
employees tend to be older. (Tr. 83:19-84:1; 86:3-7).
Plaintiff argues that this evidence is bolstered when
considered together with the VLIP. The voluntary first phase of
the RIF was limited to employees at Level 3 and above (PTX-19 at
1075), was announced simultaneously with the involuntary layoffs
(Id.), and, based on charts included in the RIF Analysis, either
targeted employees ages 50 and older or was undertaken with the
knowledge that those employees were the most likely to accept a
voluntary discharge. (Id. at 1081-82).
Additionally, Plaintiff presented evidence that he had been
receiving unfairly low scores on his reviews in light of his
positive multi-rater feedback. (See PTX 4, 5, 7). Renna
attempted to explain this away, stating that written multi-rater
feedback tends to be more positive because multi-raters are
hesitant to write negative comments about their co-workers. He
31
testified that negative comments are often communicated to him
outside of the formal multi-rater process. Plaintiff contrasted
this with Reynolds, who received seemingly negative multi-rater
feedback from the program manager on his largest project, but
was consistently rated higher than Plaintiff. (See PTX-9, 10).
Plaintiff also testified to his experience in “ranking and
rating” sessions in the period prior to 2008. (Tr. 166-67). He
testified that when managers were considering rankings, age was
taken into consideration, although not in explicit terms.
According to Plaintiff, he heard managers make comments such as
“well he’s been here a long time” so “he’s not going to go
anywhere” or “object” to a lower rating. (Id. at 166:21-24).
These comments apparently reflected managers’ recognition of the
fact that older workers were less “marketable,” another term
that Plaintiff claims was used in these sessions. (Id. at 167:56).
Finally, Plaintiff testified about the age-discriminatory
comment allegedly made by Hansen to Judd in the early 2000s. 8
Plaintiff testified that the first time he received a score that
he believed was unreasonably low, he complained to his manager,
Judd. He testified that in response to his complaint, Judd told
8
This statement was admitted over objection and its
admissibility is discussed below.
32
him that Hansen had asked him to lower Plaintiff’s score because
Hansen was concerned that if Plaintiff’s scores were not
lowered, they would never be able to “get rid of him.”
As noted
above, both Hansen and Judd testified at trial and both denied
that any such comment was ever made. (Tr. 350-51; 366:21-24).
Judd testified that he and Hansen did have a conversation about
putting Plaintiff on a “Performance Improvement Plan” and that
in the context of that conversation, Hansen stated that
Plaintiff’s poor performance had been “going on too long” and
needed to be addressed. (Id. at 352:2-4). Plaintiff testified
that this was the first time his score was lowered for improper
purposes, and testified that managers use previous ratings as a
“starting point” for future ratings. (Tr. 162:1-3). The jury was
free to disbelieve Judd and Hansen as to this issue.
Defendant makes two additional arguments to counter the
above analysis, both of which this Court rejects, as there was
sufficient evidence by which a jury could find age based
discrimination. First, Defendant argues that the RIF Analysis
actually militates against a finding that age was behind the RIF
or Plaintiff’s selection for it because on its face, the RIF
Analysis is focused on cost reduction and customer
affordability, not age, and nothing stated therein is
inconsistent with that justification. To bolster this argument,
33
Defendant points to the Older Workers Benefit Protection Act
Adverse Impact Analysis (“Adverse Impact Analysis”), a document
prepared by Lockheed that lists the job title and age of all MS2
employees and indicates who was selected for the RIF. (See PTX-2
at 114-16). This document shows that (1) at least three
employees older than Plaintiff and with his same job title were
not selected for the RIF and (2) of the ten employees with
Plaintiff’s job title who were 60 or older, only Plaintiff was
selected for termination. Plaintiff interprets the Adverse
Impact Analysis differently, and at trial elicited testimony
from Gillespie that all of the five employees with Plaintiff’s
job title who were terminated via the RIF were at least 50 years
old. (Id.) Second, Defendant argues both that it offered a
consistent reason for Plaintiff’s termination at trial, and that
any statement made by Hansen in 2002 was completely irrelevant
and unrelated to that explanation.
Defendant’s case rested largely on the testimony of four of
its own employees. The only documentation of Plaintiff’s
“workload softness” was one email. Therefore, the question of
pretext and, thereby, liability, turned in large part on the
credibility of Defendant’s witnesses, “an issue squarely within
the province of the [jury].” Tumolo v. Triangle Pac. Corp., 49
F. Supp. 2d 798, 800 (E.D. Pa. 1999), aff'd, 225 F.3d 650 (3d
34
Cir. 2000). As this Court already noted, the jurors evaluated
each witness’s credibility and demeanor, as they were supposed
to, and decided which testimony to credit accordingly. Clearly,
the jury did not believe Defendant’s witnesses when they
testified that “workload softness” was the reason for
Plaintiff’s termination. Defendant has not established that the
jury was not free to make such a choice. In addition, viewing
all the evidence outlined above -– particularly the RIF and VLIP
Analyses, Plaintiff’s placement into a COI of one, and the
evidence of contrived ratings -- in the light most favorable to
the Plaintiff, and giving him the benefit of every fair and
reasonable inference as this Court is required to do on a Rule
50 motion, it was not unreasonable for the jury to find that age
discrimination was the real reason. Toledo Mack Sales & Service,
Inc. v. Mack Trucks, Inc., 530 F.3d 204, 209 (3d Cir. 2008).
c. Punitive Damages
Defendant also seeks judgment as a matter of law on the
jury’s award of punitive damages, arguing that the evidence at
trial did not warrant any such award. As discussed above,
however, Fed. R. Civ. P. 50(b) provides for a renewed motion.
The right to file a renewed motion pursuant to Fed. R. Civ. P.
50(b) must be preserved by first moving under Fed. Rule. Civ. P.
50(a) at trial, specifying the “judgment sought and the law and
35
facts that entitle the movant to the judgment.” Fed. R. Civ. P.
50(a)(2).
In order to preserve such right, the moving party must have
raised an issue “with sufficient specificity [at trial] to put
the [nonmovant] on notice” of the insufficiencies in its case
and afford it “an opportunity to cure” such defects. Runyon, 130
F.3d at 571-72; Lightning Lube, 4 F.3d at 1173 (citing Acosta v.
Honda Motor Co., 717 F.2d 828, 831–32 (3d Cir. 1983)). To
determine whether an issue has been raised, the Court must “look
to the ‘the communicative content, specificity and notice-giving
function of an assertion . . . judged in context.’” Holt v.
Pennsylvania, 683 F. Appx. 151, 156 (3d Cir. 2017)(quoting
Acosta, 717 F.2d at 832 (internal quotation marks omitted)).
“Absent a motion in accordance with . . . Rule . . . 50(a),
judicial reexamination of the evidence abridges [a party's]
right to a trial by jury.” Lightning Lube, 4 F.3d at 1173
(quoting Fineman v. Armstrong World Indus., Inc., 980 F.2d 171,
183 (3d Cir. 1992)).
Defendant moved for judgment as a matter of law twice at
trial: at the close of Plaintiff’s case-in-chief and again at
the close of its case. Both times, Defendant argued that
Plaintiff did not submit sufficient evidence to establish his
prima facie case or to establish that Lockheed’s justification
36
for firing Plaintiff was pretext. At neither point did Defendant
address the sufficiency of Plaintiff’s evidence as it related to
the issue of punitive damages. 9 Notably, after the jury returned
its verdict on liability and willfulness, there was a “punitive
phase” to the trial. At this phase Plaintiff, in his capacity as
a Lockheed shareholder and former long-time employee, testified
regarding the company’s worth. At the conclusion of Plaintiff’s
testimony, Defendant had a third opportunity to move for
judgment as a matter of law on the issue of punitive damages
before the issue was put to the jury, but it did not. As such,
Defendant waived its right to bring a renewed motion for
judgment as a matter of law on punitive damages. 10
9
As discussed in detail below, to establish entitlement to
punitive damages under the NJLAD, Plaintiff was required to show
(1) actual participation in or willful indifference to by upper
management and (2) that the offending conduct was “especially
egregious.” Rendine v. Pantzer, 141 N.J. 292, 314, 661 A.2d
1202, 1215 (1995)(citing Lehmann v. Toys ‘R’ Us,
Inc., 132 N.J. 587, 626 A.2d 445 (1993)). Plaintiff did not
raise these issues in either of its motions at trial.
10 Defendant argues that its failure to raise a Rule 50(a) motion
with specificity at trial should be excused pursuant to an
exception to the procedural requirements of Rule 50(b), citing
Fineman v. Armstrong World Indus., Inc., 774 F. Supp. 225, 230
(D.N.J. 1991), rev'd in part, 980 F.2d 171 (3d Cir. 1992). The
exceptions discussed in Fineman, however, appear to have been
created to relax the timing requirements under a previous
version of Rule 50 which required that a party move “at the
close of all evidence,” rather than the specificity of such
motion. See Id.; see also, e.g., Jeckell v. Crestwood Area Sch.
Dist., No. 3:04-CV-1135, 2008 WL 4372797, at *3 (M.D. Pa. Sept.
18, 2008) (citing Advisory Committee Notes, following Fed. R.
37
III. New Trial
a. Legal Standard
Fed. R. Civ. P. 59 provides that a court may, after a jury
trial, “grant a new trial on all or some of the issues . . . 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). Although the language of Rule 59 does not cite
specific grounds for a new trial, there are several recognized
bases for such a grant. The most commonly raised reasons are
that: there was prejudicial error of law, the verdict is against
the weight of the evidence, the verdict is too large or too
small, there is newly discovered evidence, conduct of counsel or
of the court has tainted the verdict, or there has been
misconduct affecting the jury. 11 C. Wright, A. Miller & R.
Kane, Federal Practice and Procedure § 2805, at 55 (2005); see
also Lightning Lube, Inc. v. Witco Corp., 802 F. Supp. 1180,
1186 (D.N.J. 1992).
The decision to grant a new trial is left to the sound
discretion of the trial judge. See Ford v. Cty. of Hudson, No.
Civ. P. 50.). These exceptions are irrelevant here not only
because they apply to a rule which is no longer in effect, but
because the issue before the Court is not the timing of
Defendant’s motions, but rather the motions’ specificity, or
lack thereof.
38
07-5002, 2016 WL 6304436, at *6 (D.N.J. Oct. 25, 2016)(citation
omitted); see also Allied Chemical Corp. v. Daifion, Inc., 449
U.S. 33, 36 (1980). A trial court may not, however, grant a new
trial simply because it would have come to a different
conclusion than that reached by the jury. Lightning Lube, 802 F.
Supp. at 1186.
Defendant seeks a new trial on two grounds. First, it
argues that the jury’s decisions on both liability and punitive
damages are contrary to the weight of the evidence. Second,
Defendant argues that the Court committed legal error in (1)
admitting Plaintiff’s testimony regarding Jay Hansen’s alleged
statements and (2) allowing Plaintiff to testify regarding
Lockheed’s financial condition during the punitive damages phase
of the trial.
b. Liability
i. Weight of the Evidence
Defendant argues that the jury’s decision that Lockheed had
discriminated against Plaintiff because of his age was against
the clear weight of the evidence. A trial court should grant a
new trial based on the weight of the evidence only 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 [the] conscience.” Marra v. Phila. Hous.
39
Auth., 497 F.3d 286, 309 n. 18 (3d Cir. 2007) (citing Williamson
v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)).
Specifically, Defendant argues that the objective evidence
clearly established that Reynolds and Plaintiff were not
similarly situated, and that the weight of the evidence at trial
demonstrated that “workload softness” was the true reason for
the RIF.
With regard to Reynolds, the evidence presented on the
issue of his similarity to Plaintiff -– a “fact-intensive”
inquiry for the jury -- is discussed above and will only be
summarized here. Evidence of similarity included testimony and
documents setting forth that Reynolds and Plaintiff: had the
same job title, job code, and job description; reported to the
same manager, Renna; were engineers with diverse skillsets
serving as “technical leaders” in a position where the work
varied on a project by project basis; and were ranked against
one another by Renna. Defendant argues that this evidence is
outweighed by Renna’s testimony that Reynolds was working on a
much larger project than Plaintiff at the time of the RIF and
multi-rater comments referring to Reynolds as a “manager” and
Plaintiff as a “contributor” on different projects. While it may
have been a close question, based on this evidence, the jury’s
decision that the two were similarly situated does not shock
40
this Court’s conscience and allowing its decision on this issue
to stand will not result in a miscarriage of justice.
Defendant also argues that the weight of the evidence was
against Plaintiff on the issue of pretext. Defendant argues that
“Plaintiff did not present any objective evidence at trial that
age was a factor” in Lockheed’s selection of Plaintiff for the
RIF. To the extent Defendant faults Plaintiff for failing to
introduce direct evidence of discrimination, its argument is
misguided. Because he pursued a case based on circumstantial
evidence, Plaintiff was not required to do so. Reeves, 530 U.S.
at 148 (“Thus, a plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.”) Both parties’
evidence, and Defendant’s argument, on the issue of pretext are
analyzed in detail above. Plaintiff presented sufficient
evidence which could allow the jury to disbelieve Defendant’s
“workload softness” justification. The trial record does not so
favor Defendant that a new trial is warranted.
ii. Admission of Jay Hansen’s Comment
Defendant argues that the admission of Plaintiff’s
testimony regarding Hansen’s alleged “get rid of him” comment
was an error that necessitates a new trial. In order for an
41
error of law -– including the decision to admit testimony over
objection -– to warrant the grant of a new trial, such error
must be substantial and must be so prejudicial that a refusal to
grant a new trial would be “inconsistent with substantial
justice.” Hayes v. Cha, 338 F. Supp. 2d 470, 502 (D.N.J. 2004)
(citing Fed. R. Civ. P. 61). Defendant contends, as it did in
its motion in limine, that Hansen’s alleged comment should have
been excluded pursuant to Fed. R. Evid. 401 and 403 because it
was irrelevant, highly prejudicial, and would mislead the jury.
Evidence is relevant so long as it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” United States v. Sriyuth, 98
F.3d 739, 745 (3d Cir. 1996) (quoting Fed. R. Evid. 401).
Defendant argues that Hansen’s comment is irrelevant because it
was temporally disconnected to the RIF and thus bore no
“substantial nexus” with the decision to terminate Plaintiff.
See, e.g., Ryan v. CBS Corp., No. 06-2385, 2007 WL 2317380, *7
(E.D. PA. Aug. 7, 2007); Logan v. Countrywide Home Loans, No.
04-5947, 2007 WL 879010, *5 (E.D. Pa. Mar. 15, 2007).
Plaintiff’s case was built on circumstantial evidence.
“[D]iscriminatory comments by nondecisionmakers, or statements
temporally remote from the decision at issue, may properly be
42
used to build a circumstantial case of discrimination.” Abrams
v. Lightolier, Inc., 50 F.3d at 1214 (citation omitted). In
denying Defendant’s motion in limine, the Court held that
despite the length of time between Hansen’s statement and
Plaintiff’s termination, the statement was relevant and the jury
could determine what weight to attribute to it.
Plaintiff’s case was largely based on evidence that the RIF
was age discriminatory both in its inception and its application
to Plaintiff. Hansen was a Director in Plaintiff’s organization
who played a role in implementing the RIF. Specifically, Kebalo
testified that Hansen took part in the design of COIs, the
mechanism through which Plaintiff was terminated. Plaintiff was
placed into a COI by himself and his COI was eliminated.
Plaintiff presented evidence to the effect that his placement
into this COI was actually a pretext for age discrimination.
Whether Hansen, who oversaw the design of such COIS, harbored an
age-based animus toward Plaintiff was probative on this issue.
Further, Plaintiff testified that Hansen’s comment was made
in the context of a performance review. Specifically, Plaintiff
testified that he questioned Judd about a lower than expected
review and Judd told him that Hansen had directed him to lower
the review because Plaintiff had “been there too long.”
Plaintiff testified that this was the first time he had received
43
an unrealistically bad review, and that each year’s review
served as a starting point for the next year. As discussed
above, the jury could have believed that performance reviews
played at least some role in Plaintiff’s termination. If this
first “contrived review” served to lock Plaintiff into a lower
rating category from which he could not extricate himself, then
it -– and the reason for it -- is relevant to his termination
despite the fact that it was made ten years before the RIF. In
other words, the jury was free to believe that the comment set
the chain of discriminatory events into motion, gradually
resulting in a discriminatory act.
Defendant also contends that Plaintiff’s testimony
regarding the comment should have been excluded pursuant to Fed.
R. Evid. 403 because its probative value was “easily” outweighed
by the danger of undue prejudice. Defendant argues that this
testimony was designed to “trick” the jury into deciding the
case on an improper basis. Defendant is mistaken. This testimony
was not the sole evidence presented by Plaintiff that could
establish that “workload softness” was a pretextual
justification for Plaintiff’s termination. Plaintiff presented
evidence, among other things, that the RIF was facially agebased, that he was not subject to the usual COI process, and
that his reviews were unfairly low while Reynolds, a younger
44
comparator, received scores that were higher than they should
have been. Moreover, Hansen and Judd both testified at trial,
each denying that Hansen had ever made this comment. The jury
was presented with the opportunity to evaluate the credibility
of all three witnesses, and to assign weight to their testimony
accordingly.
In the end, the admission of Plaintiff’s testimony
regarding Hansen was not substantial error. Moreover, the
testimony did not prejudice Defendant such that refusal to grant
a new trial is inconsistent with substantial justice. A new
trial is not warranted on this ground.
c. Punitive Damages under the NJLAD
Defendant argues that it is entitled to a new trial because
the jury’s verdict on punitive damages was against the weight of
the evidence and the admission of Plaintiff’s testimony at the
punitive phase of the trial was legal error.
i. Weight of the Evidence 11
11
Plaintiff contends that Defendant is foreclosed from moving
for a new trial on this ground, arguing that this is simply
another attempt to challenge the sufficiency of the evidence,
which Defendant may not do. Plaintiff cites Yohannon v. Keene
Corp. as support for the proposition that failure to move under
Rule 50(a) at trial “wholly waives the right to mount any posttrial attack on the sufficiency of the evidence.” Yohannon v.
Keene Corp., 924 F.2d 1255, 1262 (3d. Cir. 1991). Defendant
argues that it is not challenging the sufficiency of the
45
Punitive damages are only available in “exceptional cases”
involving “circumstances of aggravation and outrage, beyond the
simple commission of a tort.”
Pavlova v. Mint Mgmt. Corp., 375
N.J. Super. 397, 404 (App. Div. 2005). Thus, to receive punitive
damages under the NJLAD, a plaintiff must not only establish age
discrimination as described above, but must additionally prove,
by clear and convincing evidence, (1) actual participation in or
willfull indifference to the wrongful conduct on the part of
upper management and (2) that the offending conduct is
evidence, but its weight, which is a different question governed
by a different standard.
Defendant is correct that the failure to move for judgment
as a matter of law at trial does not foreclose a separate
“weight of the evidence” challenge brought via Rule 59.
Greenleaf v. Garlock, Inc., 174 F.3d 352, 365 (3d Cir. 1999). In
this context, “sufficiency” refers to an inquiry into whether
“the record contains the minimum quantum of evidence from which
a jury might reasonably afford relief” for the nonmoving party.
Keith v. Truck Stops Corp. of America, 909 F.2d 743, 745 (3d
Cir. 1990). This is a question of whether a party has done
enough that a jury could, as a matter of law, reasonably find
for that party. The question of weight of the evidence, however,
provides not for an evaluation of whether a party has done the
minimum required to present its case to the jury, but rather
calls for the Court to “exercise its discretion and grant a new
trial because the probative evidence in favor of the movant as
contrasted with that opposed to it is overwhelming,” such that
allowing the verdict to stand would “result[] in a miscarriage
of justice or . . . shocks [the court’s] conscience.” Vargo v.
Coslet, 126 F. App'x 533, 535 (3d Cir. 2005) (citing
Greenleaf, 174 F.3d at 365); Williamson, 926 F.2d at 1353.
46
especially egregious. Rendine v. Pantzer, 141 N.J. 292, 313-14
(1995) (citing Lehman v. Toys-R-Us, 132 N.J. 587 (1993));
Leimgruber v. Claridge Assocs., 73 N.J. 450, 454 (1977); (Dkt.
No. 106 at 2).
1. Participation or Willful Indifference
The Court instructed the jury that in order to award
Plaintiff punitive damages it had to first determine, among
other things, that “at least one of Lockheed Martin
Corporation’s ‘upper management’ employees actually participated
in, or was willfully indifferent to, the wrongful conduct.”
(Dkt. No. 106 at 3; Tr. 748:18-22); see George v. Bd. of Educ.
of the Twp. of Millburn, 34 F. Supp. 3d 442, 462 (D.N.J. 2014)
(citing Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 113 (1999);
Rendine, 141 N.J at 314). The jury was further instructed that
this required them to find that a member of upper management
“knew about the wrongful conduct” and either “engaged in
affirmative acts to accomplish [it]” or “chose to disregard or
ignore it, rather than stop it.” (Dkt No. 106 at 3-4; Tr.
752:24-753:12).
Plaintiff identified Norm Malnak as an example of a member
of Lockheed’s “upper management” on whom the jury should focus
its inquiry because Plaintiff presented his case for punitive
47
damages based upon Malnak’s actions. 12 Defendant argues that the
jury’s decision on the issue of “actual participation” or
“willful indifference” of “upper management” is so contrary to
the weight of the evidence that allowing it to stand would be a
miscarriage of justice. The Court agrees.
Malnak was the only member of Lockheed’s “upper management”
identified at trial who could have played some role in
Plaintiff’s termination. As noted, Malnak was the Vice President
in charge of “Tech Ops” for MS2, the unit in which Plaintiff
worked, at the time Plaintiff was terminated. There was little
evidence presented at trial with regard to Malnak.
To be sure, however, Malnak’s name -– along with the names
of several other vice presidents and directors -- was on the
title slide of the RIF Analysis.
12
13
(See PTX-19). As previously
The parties do not dispute whether Malnak could properly be
categorized as “upper management.” When asked at sidebar “Who is
the upper management that you want me to identify?” Plaintiff’s
counsel responded “Norm Malnak.” (Tr. 750:17-20).
13 Plaintiff contends that that the individuals listed on this
slide -– Jon Baumgart, Michael Cseplo, Mark DiNapoli, Marilyn
Figlar, Norm Malnak, Maryann Marandola, Mimi Morino, Warren
Pfister, Tom Spair, Diane Stefani, and Shelley Walker -- were
the “architects” of the RIF. He singles out Marilyn Figlar, the
VP of HR for MS2 whose name also appears on the slide. The only
testimony regarding Ms. Figlar presented at trial was the fact
of her position and that she reported to Norm Malnak. Plaintiff
did not elicit testimony or present evidence regarding any of
these individuals’ involvement in either creating or
implementing the RIF.
48
discussed, the jury could have concluded that the RIF Analysis
contained the “blueprint” for a discriminatory plan to remove
older employees while simultaneously increasing the number of
younger employees. Putting aside the fact that the evidence with
respect to Plaintiff went further than just this “blueprint,”
Plaintiff offered no evidence of Malnak’s involvement in
planning the RIF other than his name on the title page of this
presentation. Standing alone, Malnak’s name on the title slide
of this Powerpoint presentation is not clear and convincing
evidence of “active participation” in or “willful indifference”
to discrimination.
The RIF Analysis served as one piece of circumstantial
evidence of discrimination. What made this plan worse in
Plaintiff’s case and formed another crucial piece of
circumstantial evidence in establishing discrimination as to
Plaintiff’s termination, however, was the improper use of the
RIF process, specifically the placement of Plaintiff into a COI
by himself. Given the testimony surrounding Plaintiff’s
placement into a COI of one, and specifically in light of
Plaintiff’s testimony related to contrived review scores, such
conduct could easily be viewed by a jury as discriminatory.
The problem here is that Plaintiff presented no evidence
that Malnak, or any other member of “upper management,”
49
participated or even knew about his COI placement or reviews. In
fact, the uncontested evidence at trial established that it was
Renna who placed Plaintiff into his COI.
Renna testified that
pursuant to the RIF Schedule (which the jury was free to believe
that Defendant did not follow in terminating Plaintiff), the
decision as to which “skill groups/COIs are affected by the RIF”
would have been “reviewed up the line to Norm Malnak.” (Tr.
128:11-21). This does not establish, however, by clear and
convincing evidence that Malnak took part in the decision to
place Plaintiff in a COI of one or was even aware of the reasons
for such placement. An equally plausible conclusion is that this
evidence might establish that Malnak was negligent in failing to
discover that Plaintiff had been terminated for a discriminatory
reason. As the jury was instructed, however, the standard for an
award of punitive damages under the NJLAD requires more than
mere negligence. (Dkt. No. 106 at 4; Tr. 753:9-18); Lehmann, 132
N.J. at 624.
In the end, the Court concludes that the weight of the
evidence on this issue clearly favors Defendant, the jury’s
verdict shocks this Court’s conscience, and allowing it to stand
would constitute a miscarriage of justice. Accordingly, the
Court will vacate the jury’s punitive damage award and order
that a new trial be held on punitive damages.
50
Because a new trial on the issue of punitive damages is
warranted on this ground alone, the Court need not reach the
issues of “especially egregious conduct” or the admission of
Plaintiff’s testimony.
IV.
Remittitur
Defendant seeks remittitur of the jury’s awards of
emotional distress and punitive damages. Because the court has
granted Defendant’s motion for a new trial on the issue of
punitive damages, it will only address emotional distress
damages.
a. Legal Standard
The use of remittitur “falls within the discretion of the
trial judge.” Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346,
354 (3d Cir. 2001)(citation omitted). The Court has an
“obligation . . . to ensure that the compensatory damage award
finds support in the record and that the jury did not abandon
analysis for sympathy.” Id. at 352 (citing Gumbs v. Pueblo
International, Inc., 823 F.2d 768, 773 (3d Cir.1987)).
Remittitur is warranted where the Court “finds that a decision
of the jury is clearly unsupported and/or excessive.” Cortez v.
Trans Union, LLC, 617 F.3d 688, 715 (3d Cir. 2010)(quoting
Spence v. Bd. of Educ. of Christina School Dist., 806 F.2d 1198,
1201 (3d Cir. 1986)).
51
A court must, however, “uphold the jury's award, if there
exists a reasonable basis to do so” and “may not . . . reduce
[an] award merely because it would have granted a lesser amount
of damages.” Blakey v. Continental Airlines, Inc., 992 F. Supp.
731, 734 (D.N.J. 1998)(quoting Motter v. Everest & Jennings,
Inc., 883 F.2d 1223, 1230 (3d Cir. 1989)). “[A] federal court
will only grant a remittitur . . . if it appears that the award
is so large as to ‘shock the conscience of the court.’” Glass v.
Snellbaker, No. 05-1971 JBS, 2008 WL 4371760, at *7 (D.N.J.
Sept. 17, 2008).
b. Emotional Distress Damages
Defendant argues that the jury’s award of $520,000 in
emotional distress damages should be reduced because it is
excessive in light of the evidence presented at trial. As stated
above, this Court will only remit the jury’s verdict if it
“shocks the conscience” of the Court. Id. Because Plaintiff’s
entitlement to recovery for emotional distress arises from the
NJLAD, 14 this Court will look to New Jersey state law for
14
“[T]he ADEA does not permit a separate recovery of
compensatory damages for pain and suffering or emotional
distress.” C.I.R. v. Schleier, 515 U.S. 323, 326 n. 2 (1995).
The NJLAD, however, does permit for recovery of emotional
distress damages, see N.J.S.A. § 10:5-3, and New Jersey law
determines the type of evidence that must be introduced to
warrant such an award. Browning-Ferris Indus. of Vermont, Inc.
v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989).
52
guidance on the question of “excessiveness.” See Browning-Ferris
Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257,
279 (1989)(“the role of the district court is to determine
whether the jury's verdict is within the confines set by state
law, and to determine, by reference to federal standards
developed under Rule 59, whether a new trial or remittitur
should be ordered.”).
Defendant urges this Court to decide whether the award of
emotional distress damages in this case “shocks its conscience”
by comparing it to verdicts in “similar cases.” (Def. Br. at 26
(citing Dee v. Burough of Dunmore, No. 05-1342, 2010 WL 1626908,
at *3 (M.D. Pa. Apr. 21, 2010), aff’f, 474 F. Appx. 85 (3d Cir.
2012)). The Supreme Court of New Jersey, however, directly
repudiated such an approach in Cuevas v. Wentworth Group, 226
N.J. 480 (2016), holding that “reliance on . . . purportedly
comparable verdicts presented by the parties in deciding whether
to remit a pain-and-suffering damages award [under the NJLAD] .
. . is not sound in principle or workable in practice.” 226 N.J.
at 486. The court “disapprove[d] of the comparative-verdict
methodology . . . [because] [t]he singular facts and particular
plaintiffs in different cases that lead to varying awards of
53
damages are not easily susceptible to comparison.” Id.
The court noted that “[i]n a case of workplace
discrimination in violation of the [NJ]LAD, jurors are asked to
exercise a high degree of discernment, through their collective
judgment, to determine the proper measure of damages
for emotional distress, which includes ‘embarrassment,
humiliation, indignity, and other mental anguish.’” Id. at 500
(citing Model Jury Charges (Civil) § 2.36, “Past and
Future Emotional Distress in an Employment Law Case” (2014)). 15
In fact, the jurors in such cases are instructed (as they were
here) to use their “common experience” and “human judgment” to
equate “the nature of emotional distress . . . and the nature
and function of money . . . [and] arrive at a fair and
reasonable award of damages.” Id. Because of the nature of such
an analysis, “no two juries likely will award the same damages
for emotional distress in a discrimination case, [and] a
permissible award [of emotional distress damages in an NJLAD
case] may fall within a wide spectrum of acceptable outcomes.”
Id.
The court held that only an award well outside of that
“acceptable broad range” will be so excessive as to “shock the
conscience.” Id.
15
The jury charges in this case, which were submitted jointly by
the parties, used the same language. (Tr. 704:14-23).
54
In determining this “acceptable range,” the court held that
“courts should focus their attention on the record of the case
at issue . . . [because] the facts and plaintiffs in every . . .
[NJ]LAD case are fundamentally different and therefore a true
comparative analysis is illusory.” Id. at 505-06. Further,
according to the court, “the realization that a wide range of
potential awards is permissible counsels for judicial restraint”
and “the instances in which a remittitur should be granted will
be glaring and obvious from the record.” Id. at 509.
In light of the Cuevas court’s admonition, in 2016, that a
“wide range” of awards is acceptable, the cases cited by
Defendant, all of which were decided before Cuevas, are not
particularly instructive.
Plaintiff testified regarding the emotional distress he
suffered after his termination from Lockheed. 16 Plaintiff, who
was 66 years old at the time of his termination, had been
working in engineering since he was 16. (Tr. 204:20-21). He
16
Plaintiff also testified regarding his treatment at Lockheed
for the 10 years before his termination. As discussed above, he
testified that in 2002, he was informed that Jay Hansen had made
an age discriminatory remark about “getting rid of him.”
Plaintiff also testified that he he had been receiving contrived
review scores, and that on at least one occasion this led him to
complain to Judd that he was being discriminated against. The
jury could have considered this evidence in the context of
evaluating the credibility and severity of Plaintiff’s emotional
distress.
55
further testified that he was raised in the culture of
engineering, and that both his father and grandfather had been
engineers. (Id. at 145:18-21). According to Plaintiff, he
intended to continue working “forever,” but instead of doing so,
or even retiring on his own terms, he was taken into an office,
handed a form letter, and then escorted out of the premises by
security guards. (Id. at 187:21-188:11; 201:20-22).
Plaintiff also testified that when he was fired in this
manner after nearly 30 years at Lockheed, he felt betrayed,
depressed, and shocked. (Id. 199:19-24). He testified that he
attempted to find a new job, but failed, and that he was
frustrated and demoralized by the process. (Id. at 203:19204:3). Finally, Plaintiff testified that his termination
affected his personal life. He testified that his relationships
with his family and friends have changed since he was terminated
and unable to find new employment. (Id. at 204:4-17) Plaintiff
testified that his social life revolved largely around his work
at Lockheed, and that since his termination he has become
lonely. (Id.)
The jury was properly instructed that it should
consider the nature, character and seriousness of any
emotional distress. You must also consider the
duration of the emotional distress, as any award you
make must cover the damages suffered by Mr. Braden to
the present time.
56
Mr. Braden has the burden of proving his damages
through credible competent evidence, although he does
not have to offer any witnesses to corroborate his
emotional distress. The distress need not be
permanent, physical or psychological symptoms are not
necessary, and Mr. Braden need not have obtained any
type of professional treatment.
Mr. Braden's testimony standing alone is enough to
support an award of emotional distress damages. On the
other hand, you are free to disbelieve all or part of
Mr. Braden's testimony, and if you do, you should act
accordingly by either reducing the amount of damages
you award for emotional distress or by not awarding
any emotional distress damages at all.
The law does not provide you with any table, schedule
or formula by which a person's emotional distress may
bemeasured in terms of money. The amount is left to
your sound discretion. You are to use your discretion
to attempt to make Mr. Braden whole, so far as money
can do so, based upon reason and sound judgment,
without any passion, prejudice, bias or sympathy.
(Tr. 704:24-705:23).
The jury heard Plaintiff’s testimony, observed his
demeanor, and decided that he was suffering from serious
emotional distress. Accordingly, it awarded him $520,000 in
emotional distress damages. While this award is large, the Court
does not find that the jury’s award of damages for emotional
distress is so far outside the “acceptable broad range” of
57
awards that it shocks the conscience. Accordingly, Plaintiff’s
motion for remittitur on emotional damages shall be denied. 17
V.
Conclusion
For the foregoing reasons, Defendant’s Motion for Judgment
as a Matter of Law shall be DENIED, Defendant’s Motion for
Remittitur of emotional damages shall be DENIED, and Defendant’s
Motion for a New Trial shall be GRANTED, in part, and DENIED, in
part. The jury’s award of punitive damages will be vacated and a
new trial shall be held on the issue of punitive damages. An
appropriate Order shall issue herewith.
_s/_Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATED: December 18, 2017
17
At the close of its argument on remittitur, Defendant
“requests the [C]ourt grant a remittitur of the jury’s emotional
distress damage award or, in the alternative, order a new
trial.” (Def. Br. at 30). The Court’s denial of Defendant’s
request for remittitur forecloses the possibility of the award
of a new trial. The Court’s holding that the jury’s verdict on
this issue was “supported by the evidence,” Cortez v. Trans
Union, LLC, 617 F.3d 688, 716 (3d Cir. 2010), necessarily
indicates that it was not against the clear weight of the
evidence.
58
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