WALKER v. VERIZON SERVICES CORPORATION et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 8/25/17. 8/25/17 ENTERED AND COPIES EMAILED TO COUNSEL.(jaa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VERIZON PENNSYLVANIA LLC
August 25, 2017
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
1. Trial consisted of 1 day of jury selection, 2.5 days of
testimony, and 1.5 days of deliberation.
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.
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).
April 25, 2015, Walker was terminated by Verizon as part of a
company-wide reduction in force.
She was fifty-six years old at
She had been employed by Verizon for more than
thirty-six years and spent thirty-five of those years in the
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.
2. Walker also originally filed claims of race and disability
discrimination under state and federal law but chose not to
pursue those claims at trial.
At the time of the reduction in force, Walker was a
member of the design engineering team and reported to Brian
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
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.”
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
While she was in this role, Walker took approximately
2.5 months of FMLA leave from April 26, 2013 to July 14, 2013.
3. “Conduit highway” refers to the network of plastic pipes
buried underground across the City of Philadelphia. Verizon
runs its cables inside of the conduit pipes.
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.
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.
determined that her FMLA leave “ha[d] made the transition
In February 2014, Magee gave Walker her 2013 year-end
The possible scores were Leading,
Performing, Developing, or New.
Magee assigned Walker the score
Leading was the top score and was rarely
It was reserved for employees who had sustained
performance above their objectives, requirements, and
Performing was the score that most employees
It indicated that the employee had met or
periodically exceeded his or her objectives, requirements, and
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.
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.
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.
required Walker to use high bandwidth.
The turf engineer job
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.
most important aspect of a turf engineer’s job.
This was the
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
Walker had reduced her Fac Verification score to
8.4, which was better than the team average of 12.7.
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.
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
4. Verizon used the term “credo” to refer to an employee’s
ability to handle customer service in a professional and
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
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
5. Gross admitted at trial that he never did a rate and rank of
his employees, despite being required to do so. Instead, he
came up with his own process for assessing team members.
6. Although Magee testified that the human resources department
was responsible for this comment on the rate and rank, Verizon’s
manager of human resources, Melissa Parker, testified that she
would not have added this comment without input from Magee. A
reasonable jury could believe that Magee was the source of this
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.
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
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.
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
7. Walker was never subject to any corrective action, notices,
or other discipline.
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
8. In the brief accompanying its motion, Verizon originally
argued that Walker was not entitled to pain and suffering
damages. It has since withdrawn this basis for relief. Verizon
does not otherwise challenge the amount of damages awarded to
Walker by the jury.
Rule 50(a) provides:
(1) In General. If 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,
the court may:
(A) resolve the issue against the
(B) grant a motion for judgment as a
matter of law against the party on a
claim or defense that, under the
controlling law, can be maintained or
defeated only with a favorable finding
on that issue.
Fed. R. Civ. P. 50(a).
Rule 50(b) states:
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.”
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)).
is not whether there is literally no evidence supporting the
If the court does not grant a motion for
judgment as a matter of law made under
Rule 50(a), the court is considered to have
submitted the action to the jury subject to
the court’s later deciding the legal
questions raised by the motion. No later
than 28 days after the entry of judgment -or if the motion addresses a jury issue not
decided by a verdict, no later than 28 days
after the jury was discharged -- the movant
may file a renewed motion for judgment as a
matter of law and may include an alternative
or joint request for a new trial under
Rule 59. In ruling on the renewed motion,
the court may:
(1) allow judgment on the verdict, if
the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a
matter of law.
Fed. R. Civ. P. 50(b).
unsuccessful party, but whether there is evidence upon which a
reasonable jury could properly have found its verdict.”
(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
The court is required to “disregard all evidence
favorable to the moving party that the jury is not required to
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
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
FMLA retaliation and age discrimination.
circumstantial evidence in support of both claims.
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
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.
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.
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
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
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.
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
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
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.
(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.
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.”
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
His mid-year concerns about Walker’s FMLA
leave were incorporated into the 2013 year-end review.
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.”
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
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.
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).
had to prove that her age was the “but-for” cause of her
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.
plaintiff may “point to evidence that would allow a factfinder
to disbelieve the employer’s reason for the adverse employment
See Willis, 808 F.3d at 644 (citing Fuentes, 32 F.3d
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 he completed the required rate and rank form.
reasonable for the jury to find pretext under these
See id. at 644-45.
The second possible method for terminating Walker was
the rate and rank protocol.
The rate and rank was comprised
entirely of subjective factors.
These included the employee’s
2013 and 2014 performance evaluation scores, primary skills,
technical knowledge, “credo”, corrective action, and any other
All of these metrics were based on Magee’s
subjective view of Walker, rather than objective metrics of her
performance such as her proficiency at certain skills or the
number of tasks completed.
Moreover, Magee did not complete the
rate and rank according to the instructions.
If he had, a
substantially younger employee would have been terminated.
employee had scored only two points better than Walker on the
rate and rank, yet should have received one point less than
Walker because he was subject to a formal disciplinary program
for poor performance.
Verizon’s decision to terminate Walker
was fraught with “weaknesses, implausibilities, inconsistencies,
incoherencies, [and] contradictions.”
For all of these
reasons, there was more than sufficient evidence from which a
jury could determine that the employer’s purported
non-discriminatory reason for firing Walker was mere pretext. 11
There was more than sufficient evidence from which the
jury could have reasonable decided to reject Verizon’s purported
legitimate, non-discriminatory reasons for firing Walker.
will not second-guess the jury’s decision.
sufficient evidence from which a reasonable jury could find that
Verizon selected her for termination because of her age.
Verizon, in the alternative, seeks a new trial under
Rule 59 of the Federal Rules of Civil Procedure.
that it is entitled to a new trial for two reasons.
claims that even if the evidence was legally sufficient to
support a verdict, the weight of the evidence was contrary to
Second, Verizon maintains that the jury did not
understand the jury instructions on elements of the age
discrimination and FMLA retaliation causes of action. 12
11. This is also true with respect to Walker’s FMLA retaliation
claim, which implicates the same telephone call between Magee
and Gross and the same rate and rank protocol.
12. Verizon’s objections to the jury instructions were limited
to a challenge to the inclusion of a charge on emotional
distress damages. In addition, Verizon objected that the words
“if any” should be added to the damages questions on the verdict
sheet. Verizon did not make any other objections to the jury
instructions or verdict sheet.
Rule 59 provides that “[t]he court may, on motion,
grant a new trial . . . after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at
law in federal court.”
See Fed. R. Civ. P. 59(a)(1)(A).
Court of Appeals has “cautioned that a district court should
grant a new trial on the basis that the verdict was contrary to
the weight of the evidence ‘only where a miscarriage of justice
would result if the verdict were to stand.’”
Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996)
(quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352
(3d Cir. 1991)).
In reviewing a Rule 59 motion for a new trial,
unlike a Rule 50 motion for judgment as a matter of law, the
court is not required to view the evidence in the light most
favorable to the plaintiff.
See Valentin v. Crozer-Chester Med.
Ctr., 986 F. Supp. 292, 298 (E.D. Pa. 1997) (citing Magee v.
Gen. Motors Corp., 213 F.2d 899, 900 (3d Cir. 1954)).
In our view, the weight of the evidence supports the
jury’s verdict that Verizon committed age discrimination and
No miscarriage of justice has occurred.
Verizon also argues that the jury was confused by the
jury instructions because those instructions required it to
decide whether Walker’s taking of medical leave was a motivating
factor with respect to the FMLA retaliation claim and whether
Walker’s age was a determinative factor with respect to the age
discrimination claim. 13
Pointing to questions asked by the
jurors of the court concerning the motivating and determinative
13. The court instructed the jury on age discrimination and
FMLA retaliation as follows:
Ms. Walker, as previously noted, alleges
Verizon discriminated against her because of
her age. To prevail on this claim,
Ms. Walker must prove that Verizon
intentionally discriminated against her by
proving the following three elements:
First, Verizon terminated Ms. Walker's
Second, that her age was a determinative
factor in Verizon’s decision to terminate
her employment; and
Third, that a substantially younger
employee, or substantially younger
employees, were retained for the job of
A determinative factor means that if not for
Ms. Walker’s age, her termination would not
Although Ms. Walker must prove that Verizon
acted with the intent to discriminate, she
is not required to prove direct evidence of
intent, such as statements admitting
discrimination. Intentional discrimination
may be inferred from the existence of other
Often, the state of mind, including intent,
with which a party acts at any given time
cannot be proved directly because one cannot
read another person’s mind and tell what he
or she is thinking. However, the state of
mind of the relevant Verizon employees who
were involved in terminating Ms. Walker can
be proven indirectly from the surrounding
circumstances. It is entirely up to you to
decide what the evidence presented during
this trial proves or fails to prove about
the state of mind of the relevant Verizon
Ms. Walker need not show that she was
replaced in her position by a younger
employee. Rather, she must only prove that
a substantially younger employee was
retained as an engineering specialist. In
determining whether Ms. Walker has proven
that a substantially younger employee was
retained, you should use your good judgment
and common sense. There is no magic formula
as to what constitutes an employee
substantially younger than Ms. Walker.
Verizon has presented evidence of a
non-discriminatory reason for its decision
to terminate Ms. Walker as part of the
reduction in force. If you disbelieve
Verizon’s explanation for its conduct, then
you may, but need not, find that Ms. Walker
has proven intentional discrimination.
In determining whether Verizon’s stated
reason for its actions was a pretext or
excuse for discrimination, you may not
question Verizon’s business judgment. You
cannot find intentional discrimination
simply because you disagree with the
business judgment of Verizon or believe it
is harsh or unreasonable. You are not to
consider Verizon’s wisdom. However, you may
consider whether Verizon’s reason is merely
a cover-up for discrimination.
. . . .
Finally, Ms. Walker alleges that Verizon
retaliated against her for exercising her
right to unpaid medical leave under federal
law when she had her shoulder operation in
2013. To prevail on this claim, Ms. Walker
must prove the following three elements:
First, that Ms. Walker requested medical
leave. Verizon concedes that Ms. Walker's
request for medical was pursuant to federal
Two, that she was terminated after returning
from leave; and
Three, that Ms. Walker’s taking of leave was
a motivating factor in Verizon’s decision to
terminate her employment as part of a
reduction in force.
In showing that Ms. Walker’s medical leave
was a motivating factor for Verizon’s
action, Ms. Walker is not required to prove
that the leave was the sole motivation, or
even the primary motivation, for Verizon’s
decision. Ms. Walker need only prove that
her taking leave played a motivating part in
Verizon’s decision, even though other
factors may also have motivated Verizon.
You must decide whether you find that
Verizon’s termination of Ms. Walker was
motivated by both retaliatory and lawful
reasons. Ms. Walker is not entitled to
prevail if Verizon proves by a preponderance
of the evidence that Verizon would have
treated Ms. Walker the same if she had not
taken medical leave under the Family and
Medical Leave Act.
The court also explained the verdict form:
The verdict form, members of the jury, has a
number of questions. The first one is, “Has
Suzette Walker proven her age was a
determinative factor in Verizon’s decision
to terminate her employment?” You will then
have to check yes or no. There’s a spot
under the question for you to answer yes or
. . . .
factor instructions, Verizon now contends that those questions
were so confusing that a new trial is warranted.
First, the jury asked the court:
In jury instruction booklet on pg 18 line 50
can you explain what “motivated by both
retaliatory and lawful reasons” mean? What
does lawful reasons mean? Did it mean
In response, the court instructed the jury that:
Lawful reason does not mean unlawful reason.
It means lawful reason, as we said. It was
not -- it’s not a typo. Now with respect to
your other question, lawful reason means any
reason presented in the evidence for
selecting Ms. Walker for the RIF except for
her age, except for her asking for a
modified work schedule, and except for
taking MF -- FMLA medical leave.
Neither party objected to the court’s response to this question
from the jury.
After the court provided this response, the jury
did not ask any further questions about this portion of the jury
There is then question 3 which says, “Has
Suzette Walker proven that her use of
medical leave was a motivating factor in
Verizon’s decision to terminate her
employment?” You have to answer yes or no.
The jury had previously asked:
If an employee has not had enough time to
fully integrate into a new job, and this
employee was out on FMLA leave, does this
allow them to be less capable at their job
Second, the jury asked the court:
than one determinative factor?”
“The answer is yes.”
“Can there be more
The court informed the jury,
At the time, counsel for Verizon objected
to this answer solely on the ground that she erroneously
believed that there could only be one determinative factor. 15
This was, of course, wrong.
See Scanlon v. Jeanes Hosp.,
319 F. App’x 151, 155 (3d Cir. 2009) (citing Miller v. CIGNA
Corp., 47 F.3d 586, 595-96 (3d Cir. 1995)).
objected that the determinative factor instruction was confusing
and did not request that the court provide any further
explanation of the determinative factor element of the age
As stated, Verizon did not object that the court’s
answers were confusing in response to any questions asked by the
In fact, Verizon now concedes that the jury instructions
and the court’s responses to any jury questions about those
and keep it over someone else that is
determined more capable?
The court responded “You’re just going to have to refer to the
evidence and the charge which I have given you.” The parties
did not object to this response. Although Verizon now claims
that this question demonstrates that the jury was confused about
the FMLA instruction, Verizon does not argue that the court’s
response to this instruction was incorrect.
15. Counsel stated: “I just wanted to place on the record that
it is my understanding of the law that there is only one
determinative factor. There can be several contributing
factors, but there can only -- and motivating factors.”
instructions were “literally correct.”
Yet, Verizon attempts to
raise an after-the-fact challenge to those instructions on the
ground that, while legally correct, they were nevertheless
This argument is totally without merit.
instructions to the jury and clarifying responses to answers
posed by the jury were correct and clear.
Further, it is
well-established that the jury is presumed to follow the court’s
See Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Zafiro v. United States, 506 U.S. 534, 540-41 (1993).
simply has not met its burden to show that the verdict resulted
in manifest errors of law or fact.
Next, we consider the motion of Walker for prejudgment
interest on her back pay award and for liquidated damages under
We begin by calculating the prejudgment interest owed
by Verizon to Walker on the $188,000 back pay damages awarded by
In addition to owing back pay damages, an employer
that violates the FMLA must pay interest on the back pay.
29 U.S.C. § 2617(a)(1)(A)(i)-(ii).
The prejudgment interest
rate to be applied is left to the discretion of the court.
Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 63
(3d Cir. 1986).
Prejudgment interest “serves to compensate a
plaintiff for the loss of the use of money that the plaintiff
otherwise would have earned had [she] not been unjustly
Booker v. Taylor Milk Co., 64 F.3d 860, 868
(3d Cir. 1995).
This accounts not only for lost accrual of
interest on money saved but also the inability to use the salary
for basic living expenses during that time period.
Our Court of
Appeals has stated that “[t]o fulfill this [make-whole] purpose,
prejudgment interest should be ‘given in response to
considerations of fairness [and] denied when its exaction would
Id. (quoting Bd. of Comm’rs of Jackson Cty.
v. United States, 308 U.S. 343, 352 (1939)).
Verizon urges the court to apply the post-judgment
interest rate set forth in 28 U.S.C. § 1961, which equals the
Federal Reserve “weekly average 1-year constant maturity
See 28 U.S.C. § 1961(a).
We note that
“[a]lthough a court ‘may’ use the post-judgment standards of
28 U.S.C. § 1961(a), . . . it is not compelled to do so.”
Taxman v. Bd. of Educ. of Twp. of Piscataway, 91 F.3d 1547, 1566
(3d Cir. 1996).
We find that the simple federal prime interest
rate better serves the purpose of providing prejudgment
That interest rate was three percent in 2015 and
2016, and it was four percent in 2017.
While the Treasury
interest rate might account for lost investment, it certainly
does not account for the Walker’s inability to utilize these
funds in daily life.
Moreover, the three and four percent
interest rates are not unreasonable.
The parties agree that the $188,000 back pay award
should be apportioned as follows:
(1) $57,824 in the thirty-two
weeks after she was fired in 2015; (2) $94,000 in the fifty-two
weeks of 2016; and (3) $36,154 in the twenty weeks before the
verdict in 2017.
The three percent interest on $57,824 in 2015
As for 2016, the three percent interest on
$94,000 in 2016 is $2,820.
Finally, in 2017, the four percent
interest on $36,154 is $1,446.16.
Thus, the total prejudgment
interest owed by Verizon on the $188,000 back pay award is
Next, we calculate liquidated damages.
which violates the FMLA is responsible for liquidated damages in
an amount equal and in addition to the sum of the back pay
damages and the prejudgment interest.
See 29 U.S.C.
The court must award liquidated damages unless
the employer “proves to the satisfaction of the court that the
act or omission which violated” the FMLA “was in good faith and
that the employer had reasonable grounds for believing that the
act or omission was not a violation of” the FMLA.
the employer proves as much, the “court may, in the discretion
of the court, reduce the amount of the liability.”
Verizon argues that Walker has not demonstrated that
its conduct was “egregious” or produced evidence of
“affirmative, intentional bad faith conduct.”
The court must award liquidated damages unless
the employer proves to the court that its conduct was in good
faith or based upon reasonable grounds.
See § 2617(a)(1)(A).
Although Verizon attempts to characterize its conduct as in good
faith and based upon reasonable grounds, Verizon’s effort
Walker is entitled to liquidated damages of
$194,000.88, equal to the sum of her $188,000 back pay award and
$6,000.88 in prejudgment interest.
This is, of course, in
addition to the judgment already entered.
Finally, Walker petitions for attorneys’ fees and
The plaintiff, as the prevailing party, is entitled to
an award of attorneys’ fees and costs under the ADEA and the
FMLA, and may also seek fees under the PHRA.
See 29 U.S.C.
16. Verizon also argues that Walker is not entitled to relief
because, during the trial, the court rejected her proposed
instructions on ADEA liquidated damages. However, Walker now
seeks liquidated damages and prejudgment interest under the
FMLA, not the ADEA. As the defendant admits in its brief, the
statute clearly provides that FMLA liquidated damages and
prejudgment interest are a matter for the court, not the jury.
See § 2617(a)(1)(A)(iii).
§ 626(b) (citing 29 U.S.C. § 216(b)); 29 U.S.C. § 2617(a)(3);
43 Pa. Stat. § 962(c)(4)(c.2).
Attorney’s fees are calculated by the “lodestar”
See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
Under the lodestar method, we multiply the number of
hours reasonably expended on the case by the reasonable hourly
Our Court of Appeals has held that “the
community billing rate charged by attorneys of equivalent skill
and experience performing work of similar complexity, rather
than the firm’s billing rate, is the appropriate hourly rate for
computing the lodestar.”
Student Pub. Interest Research Grp. of
N.J., Inc. v. AT&T Bell Labs., 842 F.2d 1436, 1450 (3d Cir.
The party seeking attorney’s fees bears the burden of
proving that its request for attorney’s fees is reasonable.
Rode, 892 F.2d at 1183.
It does so by submitting evidence of
the hours worked, including time spent during administrative
See Sullivan v. Hudson, 490 U.S. 877, 889-90
The court will exclude hours “that are not reasonably
expended” because they are “excessive, redundant, [ ] otherwise
unnecessary,” or not properly documented.
See Rode, 892 F.2d at
The prevailing party must also submit evidence of the
prevailing market billing rate.
See id. (citing Blum v.
Stenson, 465 U.S. 886, 895 (1984)).
In determining the
prevailing market rate, the court will “assess the experience
and skill of the prevailing party’s attorneys and compare their
rates to the rates prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
“To inform and assist the court in
the exercise of its discretion, the burden is on the fee
applicant to produce satisfactory evidence -- in addition to the
attorney’s own affidavits -- that the requested rates are in
line with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience and
Blum, 465 U.S. at 895 n.11.
The prevailing party
may rely on affidavits submitted by other attorneys with
personal knowledge of the community market rate.
892 F.2d at 1184.
After calculating the lodestar amount by multiplying
the billing rate times the hours worked, the court retains
discretion to adjust the lodestar amount if it determines that
“the lodestar is not reasonable in light of the results
See id. at 1183.
Here, the plaintiff seeks attorneys’ fees for lead
counsel, Christine E. Burke, and deposition counsel, Jonathan W.
The plaintiff has submitted the affidavits of Ms. Burke
and Mr. Chase, as well as affidavits from several other
Philadelphia employment law practitioners attesting to the
reasonableness of the suggested billing rates.
has also provided detailed billing records, describing the
amount of time spent on each of the tasks performed in relation
to this litigation.
As lead counsel throughout the entire case, Ms. Burke
expended 441.8 hours on behalf of the plaintiff. 18
Ms. Burke is
a partner at the law firm Karpf, Karpf & Cerutti, P.C. where she
oversees the litigation associates in all of the firm’s
She is a successful and very experienced
litigator, with expertise in employment law.
She has worked on
hundreds of state and federal employment litigation matters.
Her hourly rate was $350 per hour.
This hourly rate is
Mr. Chase appeared on behalf of the plaintiff at her
deposition and the deposition of her husband, Eric Walker.
expended 9.9 hours in this case.
Mr. Chase was admitted to
practice law in 2011 and has appeared in many employment matters
17. The plaintiff is not seeking compensation for the time
spent by paralegals on this case.
18. In her brief, the plaintiff claims that Ms. Burke spent
451.7 hours on this action. According to the billing records
submitted by the plaintiff, 451.7 hours is the total of the
9.9 hours spent by Mr. Chase and 441.8 hours spent by Ms. Burke.
in state and federal court.
He was employed by Karpf, Karpf &
Cerutti, P.C. from 2015 to 2016 and currently works for Kraemer,
Manes & Associates, LLC, where he focuses on employment
Mr. Chase’s hourly rate was $285.
This sum is also
The hours worked by counsel are also reasonable.
Ms. Burke spent 441.8 hours participating in every stage of this
case, including the EEOC proceedings, discovery, depositions,
motion practice, pre-trial filings, and trial.
extensive and active.
It involved over 5,000 documents,
numerous depositions, and many filings with the court.
addition, Mr. Chase spent a total of 9.9 hours appearing at and
preparing for the depositions of the plaintiff and her husband.
We multiply the number of hours worked by each
individual by his or her hourly rate to calculate the individual
We next add together all of those individual fees.
result is the lodestar amount, $157,451.50 representing $154,630
as to Ms. Burke and $2,821.50 as to Mr. Chase.
Finally, Verizon seeks a reduction in the attorneys’
fees award because Walker abandoned her race discrimination and
disability discrimination claims before the trial and did not
obtain a favorable verdict on her disability retaliation claim.
In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court
explained that it is within the discretion of the district court
to reduce an award of attorney’s fees with respect to claims
that the plaintiff did not pursue or obtain a favorable verdict:
There is no precise rule or formula for
making these determinations. The district
court may attempt to identify specific hours
that should be eliminated, or it may simply
reduce the award to account for the limited
success. The court necessarily has
discretion in making this equitable
See id. at 436-37.
The plaintiff brought five substantive claims for
relief in this action:
(1) age discrimination; (2) FMLA
retaliation; (3) disability relation; (4) disability
discrimination; and (5) race discrimination.
She was successful
on two of those claims -- age discrimination and FMLA
She also sought punitive damages, which the court
refused to submit to the jury.
We recognize that much of the
work done by counsel in preparation for the withdrawn or
unsuccessful claim overlaps with the work done on the age
discrimination and FMLA retaliation claims.
The defendant asks
us to reduce the attorneys’ fee award to $133,231.50.
reduced sum is appropriate under the circumstances and
Walker has also submitted a supplemental petition
seeking attorney’s fees for the time spent briefing the
post-trial motions and fee petitions.
The prevailing party is
entitled to recover a reasonable fee for the preparation of
post-trial motions and fee petitions.
See Planned Parenthood of
Cent. N.J. v. Attorney Gen. of N.J., 297 F.3d 253, 268 (3d Cir.
2002); Maldonado v. Houstoun, 256 F.3d 181, 188 (3d Cir. 2001);
Prandini v. Nat’l Tea Co., 585 F.2d 47, 54 (3d Cir. 1978).
Verizon has not filed any responsive brief in opposition to
Walker’s supplemental petition.
Counsel for Walker seeks to be
compensated for 57.5 hours of work on post-trial motions and fee
petitions at a rate of $350 per hour.
For the reasons already
explained above, the hourly compensation rate is reasonable.
Likewise, it was reasonable for counsel to spend 57.5 hours
preparing briefs in support of and in opposition to the numerous
post-trial motions and fee petitions filed in this action.
such, we will award $20,125 in supplemental fees to Walker.
Finally, we turn to the issue of costs.
above, the prevailing plaintiff is entitled to recover costs
under the ADEA and the FMLA.
award of $6,213.07 in costs. 19
The plaintiff is entitled to an
This includes $400 in filing
fees, $294.56 for medical records, $2,940 for the depositions,
$795.60 for copies of the trial transcripts, $1,047.48 in other
copying costs, $133.23 in postage and delivery fees, $395.04 in
costs for travel to court appearances and depositions, and
19. In its responsive brief, Verizon concedes that Walker is
entitled to $6,213.07 in costs.
$207.16 for trial demonstratives.
All of these costs are
In sum, we will award the plaintiff $153,356.50 in
attorney’s fees and $6,213.07 in costs, for a total of
Accordingly, the motions of defendant Verizon
Pennsylvania, LLC for judgment as a matter of law and a new
trial will be denied.
The motion of plaintiff Suzette Walker
for liquidated damages and prejudgment interest on her back pay
award will be granted.
The petition of Walker for counsel fees
and costs will be granted in part and denied in part.
supplemental petition of Walker for attorney’s fees will be
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