Velez v. Thermo King de PR

Filing 200

OPINION AND ORDER denying 168 Third MOTION for Judgment as a Matter of Law filed by Thermo King de PR; denying 169 MOTION for New Trial and/or Remittitur Pursuant to Rule 59 of the FRCP filed by Thermo King de PR. Signed by Judge Jay A Garcia-Gregory on 03/28/2011.(DPS)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO JOSE VELEZ, Plaintiff v. THERMO KING DE PUERTO RICO, INC. Defendant CIVIL NO. 09-2703 (JAG)

OPINION AND ORDER GARCIA-GREGORY, D.J.

Before the Court are Thermo King de Puerto Rico, Inc.'s Motion for Judgment as a Matter of Law (Docket No. 168) and Motion for New Trial and/or Remittitur Pursuant to Rule 59 of the FRCP (Docket No. 169). For the reasons set forth below, both motions are hereby DENIED.

PROCEDURAL BACKGROUND On December against former from 8, 2003, José of Vélez ("Plaintiff") Rico, alleged Inc. that of filed a

complaint King"),

Thermo

King

Puerto

("Thermo he was Age

his

employer.

Plaintiff in

terminated

his

employment

violation

the

Civil No. 03-2307 (JAG) Discrimination in Employment Act, 29 U.S.C. § 612 et

2 seq.

("ADEA"), Puerto Rico Act No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29, §§ 185a et seq. (2011) ("Law 80") and Puerto Rico Act No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146 et seq. (2011) ("Law 100"). summary (Docket judgment. Nos. On October 15, 2004, Thermo King moved for (Docket Nos. 24, 29). referred Plaintiff the opposed. to a

41-43).

The

Court

motion

Magistrate Judge for a Report and Recommendation. (Docket No. 53). the On August 29, 2005, the Magistrate Judge recommended that Court grant 79). Thermo On King's September Motion 23, for 2005, Summary Judgment. filed

(Docket

No.

Plaintiff

Objections to the Report and Recommendation. (Docket No. 84). Upon review of Plaintiff's objections, the Court found that he had reiterated the arguments and that the and had Magistrate thus Judge to

previously

considered

rejected,

failed

comply with the procedural requirements of Fed.R.Civ.P. 72(b) and Local Rule 72(d). Accordingly, the Court did not consider

Plaintiff's objections nor did it perform a de novo review of the Report and Recommendation. was adopted and judgment The Report and Recommendation Plaintiff's claims was

dismissing

entered on September 29, 2005. (Docket Nos. 85 and 86). Plaintiff appealed. The First Circuit found that

Plaintiff's objections were sufficiently detailed to pass muster

Civil No. 03-2307 (JAG)

3

under the rules and that this Court erred in failing to perform the required de novo review. Accordingly, the Court of Appeals

vacated this Court's judgment and remanded the matter for de novo review. the Court (Docket No. 92). adopted the Upon performing de novo review, Judge's Report and

Magistrate

Recommendation. Once again Plaintiff appealed. The First Circuit vacated the judgment and remanded for further proceedings consistent

with its decision. Trial was held beginning on March 22, 2010 and continued until March 29, 2010. The jury returned a verdict in favor of Plaintiff. It found that Plaintiff would not have been terminated but for his age, that Thermo King willfully

violated federal law by terminating him, that he was terminated because of his age in violation of Puerto Rico Law 100, that he is entitled to $200,000 as compensation for emotional damages and that he was wrongfully terminated without just cause

pursuant to Puerto Rico Law 80. (Docket No. 161). Judgment was entered to that effect. (Docket No. 162). Thermo King timely filed the Motion for Judgment as a

Matter of Law before the Court. (Docket No. 168). It alleges that absolutely no evidence was presented that would support the verdict and requests that the judgment be vacated and a new judgment be entered in its favor. It also requests that costs

Civil No. 03-2307 (JAG)

4

and attorney's fees be granted to it. Plaintiff timely opposed the motion. Thermo King filed a Reply. Thermo King also filed an alternative Motion for New Trial and/or Remittitur. (Docket No. 169). It alleges, among other things, that the weight of the evidence does not support the verdict, that improper comments by Plaintiff's counsel during closing remarks were allowed by the Court and that the amount of damages awarded is excessive. Plaintiff timely opposed the

motion. Thermo King filed a Reply.

I.

MOTION FOR JUDGMENT AS A MATTER OF LAW STANDARD OF REVIEW

Rule 50 of the Fed.R.Civ.Proc. allows a party during a jury trial to move the Court for entry of judgment as a matter of law. Such a motion may be granted "[i]f 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 the motion, then "[n]o later than 28 days after the entry of judgment ... 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." Fed.R.Civ.P. 50(b). "[T]he party renewing a motion for judgment

Civil No. 03-2307 (JAG)

5

as a matter of law pursuant to Rule 50(b) `is required to have moved for judgment as a matter of law at the close of all the evidence.'" Taber Partners I v. Insurance Co. of North America, Inc., 917 F.Supp. 112, 115 (D.P.R. 1996) (quoting Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 758 (1st Cir.1994)). It has long been established that whether the evidence

presented at trial is sufficient to permit a court to enter judgment as a matter of law is solely a question of law to be determined by the trial court. 9B Wright and Miller, Federal Practice and Procedure § 2523 (3d ed. 2008). Granting such

motion deprives the party opposing it of a determination by a jury and, therefore, it is to be granted cautiously and

sparingly. Id. at § 2524.

"Even in the best circumstance, the

standards for granting a motion for judgment as a matter of law are stringent." Rivera Castillo v. Autokey, Inc., 379 F.3d 4 (1st Cir. 2004). "The question is not whether there is literally no evidence supporting the party against whom the motion is

directed but whether there is evidence upon which the jury might reasonably find a verdict for that party." Id. In reviewing a motion for judgment as a matter of law "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 v. Sanderson Plumbing Prods., 530

Civil No. 03-2307 (JAG)

6

U.S. 133 (2000). The court "should 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 the evidence comes from disinterested

witnesses." Id. (citations omitted). A motion under Rule 50(b) will not be granted unless "the evidence points so strongly and overwhelmingly in favor of the moving party that no reasonable jury could have returned a verdict adverse to that party."

Rivera Castillo, 379 F.3d at 10-11 (citing Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 759-60 (1st Cir. 1994).

Pursuant to Fed.R.Civ.P. 50, Thermo King's "motion for judgment cannot be granted unless, as matter of law, [Plaintiff] failed to make a case..." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). ANALYSIS In its Renewed Motion for Judgment as a Matter of Law, Thermo King argues that Plaintiff was unable to prove that its proffered reasons for terminating him were pretextual and that the real reason was age. According to Thermo King, there is no evidence that would call into question the legitimacy of the investigation International. conducted (Docket No. by 169, Consultants ¶ 20). It and alleges Resources that the

evidence in the record is substantial as to the fact that his

Civil No. 03-2307 (JAG)

7

termination was the bi-product of the investigation and that the jury could not reject this. Id. at ¶ 21. It also states that "the various investigation-related explanations for terminating the Plaintiff are age much bias more likely by than Vélez, the completely in

unsubstantiated

asserted

particularly

light of the fact that scores of employees that were the same age as Plaintiff or older, were working and continue to work at Thermo King." Id. at ¶ 22. It further argues that it has

presented evidence, which has not been refuted, that age was not the reason, or even a motivating factor in Plaintiff's

termination. Id. at ¶ 32. Thermo King posits that Plaintiff's credibility was

impeached during trial because he admitted he had received such gifts as a hot plate, cases of beer and bottles of liquor, even though he did not admit so during his deposition, and had stated that he had no access to paint but later said that he was

responsible for distributing it to the supervisors. Id. at ¶ 3436. Finally, Thermo King argues that Plaintiff failed to present any evidence that could counter its statistical evidence and evidence of appreciation of career employees. Id. at ¶ 41. Plaintiff, on the other hand, argues in his opposition that there is sufficient evidence to sustain the verdict given that it is uncontested that employees who incurred in similar

Civil No. 03-2307 (JAG) activities were not fired. (Docket No. 175, ¶ 4). He

8 also

sustains that during the trial Thermo King came up with a new theory of why it terminated him, which further supports the jury finding of pretext as a permissible inference stemming from

shifting explanations. Id. at ¶¶ 5-6. Plaintiff also avers that Joint Exhibit IV, a memorandum written by Steve Soto from Thermo King's Human Resources he by on felt the it.

Department, pressured to

documents accept because

that he had

Victor stolen him

Quiles

expressed property depended

company his job

investigators

they

told

Based on this, Plaintiff argues that the jury was justified in finding that even or which Id. at to though Thermo he King, had lied, either had of the to not the been

investigators terminated, treatment.

Victor a

Quiles finding that

further ¶ 9. He

supports further

disparate evidence

argues

supports a finding that Thermo King's acted in willful violation of federal law given the strength of the evidence of disparate treatment and Steve Soto's experience. Id. at 15. Finally,

Plaintiff also defends the jury award of compensatory damages and argues that there are plenty of cases in which jurors have awarded similar amounts that were not considered grossly

excessive or shocking to the conscience by the First Circuit.

Civil No. 03-2307 (JAG)

9

In its reply, Thermo King posits that Plaintiff's failure to admit wrongdoing has been a key distinction between Plaintiff and the other employees since before the litigation began. It avers that this was evidenced by the fact that the warnings given to the other employees indicated they were allowed to keep their jobs precisely because they accepted their faults. (Docket No. 181, ¶ 3). It also avers that it is undisputed that the aggregate of the gifts received by Plaintiff constitutes a clear violation of its company policy and supports a finding that it had a valid non-pretextual reason to terminate him. Id. at ¶ 19. After a careful and thorough assessment of the evidence presented during trial and the parties' motions, and in strict compliance with the precepts governing the application of Rule 50(b) of the Fed.Civ.Proc., the Court has come to the conclusion that it should not disturb the jury verdict. Contrary to Thermo King's assertions and this Courts independent recollection of the facts, the evidence in this case may not be robust but it is certainly sufficient, as a matter of law, to support the jury's unanimous findings. Thermo King posits that a judgment as a matter of law is warranted given that there is sufficient evidence to support a finding in its favor. Specifically, it states that "a reasonable jury could not reject the company's abundant evidence that the

Civil No. 03-2307 (JAG) termination stemmed, however wisely or unwisely, from

10 the

investigation." Id. at ¶ 21. It also lists and describes the alleged abundance of evidence there is to support said finding and asserts that are much the more "various likely investigation-related that the completely

explanations...

unsubstantiated age bias asserted by Vélez." Id. at 22. Contrary to what Thermo King would have it do, the Court cannot weigh the evidence when ruling upon its motion. Even if it were considered that there is sufficient evidence to support a finding in its favor, the true standard for a Rule 50(b) motion is whether there is sufficient evidence upon which the jury might

reasonably find a verdict for the opposing party. Wright and Miller, supra, § 2524. This distinction is key, for there may be substantial weighing evidence the on both and sides, but it is the jury, by

evidence

adjudicating

the

witnesses

credibility, who ultimately decided the issues here. The Court is not free to substitute its own views for those of the jury even if it were to agree with Thermo King's position. In the case at bar, as Plaintiff correctly argues, there is substantial evidence of disparate treatment to allow the jury to find that discrimination took place. The jury was presented with uncontroverted evidence that employees who were younger than

Plaintiff and who also stole company property were not fired,

Civil No. 03-2307 (JAG)

11

but were instead given a second chance. This, in combination with the fact that Thermo King gave shifting explanations for terminating Plaintiff is sufficient to infer pretext on Thermo King's part and supports the verdict. Evidently, the jury did not give much weight to the fact that Plaintiff was different from them because he profited from the sale of the property and because he did not accept his wrongdoing. The jury was also justified in deducting regarding mendacity the from Thermo In King's as shifting Plaintiff

explanation

termination.

fact,

correctly points out, the joint statement of the case which was read to the jury indicates that he "was terminated because he violated company rules and policies by receiving gifts from

company suppliers and for selling company property for his own benefit." (Docket No. 134). Nowhere does it state that he was terminated for failing to accept his wrongdoing, which is Thermo King's This, latest in nondiscriminatory with the reason strong for prima the termination. case was

combination

facie

sufficient for the jury to reach its verdict. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Thermo King's motion also rests on several issues regarding Plaintiff's "Plaintiff's credibility. credibility Thermo was King points out that during

successfully

impeached

trial." (Docket No. 168, ¶ 33). It then proceeds to describe

Civil No. 03-2307 (JAG)

12

several instances of alleged impeachment. Id. at ¶¶ 34, 35, 36. However, when ruling upon a motion for judgment as a matter of law, a court "may not make credibility determinations or weigh the evidence." Reeves v. Sandersib Plumbing Prods., 530 U.S. 133 (2000). Therefore, the Court may not entertain these allegations and instead must focus, as stated above, on the sufficiency of the evidence. Thermo King also argues that the evidence does not support a finding has of willful that violations an ADEA of federal is law. The Supreme if "the

Court

stated

violation

willful

employer ... knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Trans World Airlines, Inc. v. Thurnston, 469 U.S. 111, 126 (1985).

Willfulness requires an element akin to reckless disregard of, or deliberate indifference to, an employee's rights under ADEA. Sanchez v. Puerto Rico Oil Co., 37 F.3d 712 (1st Cir. 1994). In the case at bar, the jury had sufficient evidence to support a finding that Thermo King willfully violated his ADEA right given the strength of his prima facie case and the evidence supporting a finding of pretext. Finally, Thermo King contends that Plaintiff presented only brief and insubstantial testimony as to how he felt after he was terminated and that the award of $200,000 is grossly

Civil No. 03-2307 (JAG)

13

disproportionate to the injury established. "[A] party seeking remittitur bears a heavy burden of showing that an award is grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial of justice to permit it to stand." Monteagudo v. Asociacion de Empleados del Estado Libre Asociado, 554 F.3d 164 (1st Cir. 2009)(citations omitted). The Court finds that the award in this case does not shock the conscience for it is neither exaggeratedly high nor grossly

excessive and is similar to other awards that have been upheld by the First Circuit. See Id. at n.12. Given the above, the Court considers that the jury also had sufficient evidence to support a finding for Plaintiff under Law 80 and Law 100.

II.

ALTERNATIVE MOTION FOR NEW TRIAL AND/OR REMITTITUR PURSUANT TO RULE 59 OF THE FRCP STANDARD OF REVIEW

Rule 59 allows the Court on motion to order a new trial after a jury trial, "for any reasons for which a new trial has heretofore been granted in an action at law in federal court...". Fed.R.Civ.P. 59(a); See also Oriental Financial Group, Inc. v. Federal Insurance Company, Inc., 598 F. Supp. 2d 199 (D.P.R. 2008). The motion for a new trial may invoke the discretion

Civil No. 03-2307 (JAG)

14

of the Court in so far as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law

stemming out of the alleged substantial errors in admission or rejection of evidence or instructions to the jury. Montgomery Ward & Co. V, Duncan, 311 U.S. 243, 251 (1940). The Court may grant a new trial although it has denied the entry of judgment as a matter of law under Fed.R.Civ.P. 50, China Resource Products (U.S.A.) Ltd. v. Fayda Intern., Inc., 856 F.Supp. 856, 862 (D.Del.1994), or even when substantial

evidence supports the jury's verdict, Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994). district court should grant "But this does not mean that the a motion for new trial simply

because the court would have come to [a] different conclusion." 11 James Wm. Moore, Moore's Federal Practice 3D, 12 §

59.13[2][a] at 59-44 (2003).

Instead, a new trial "should only

be granted where a `miscarriage of justice would result if the verdict were or to stand,' the the verdict `cries our out to be

overturned,'

where

verdict

`shocks

conscience.'"

Smith v. Delaware Bay Launch Service, Inc., 842 F.Supp. 770, 778 (D.Del. 1994) (quoting Cudone v. Gehret, 828 F.Supp. 267, 269 (D.Del. 1993)). A trial court "may set aside a jury's verdict

Civil No. 03-2307 (JAG)

15

and order a new trial only if the verdict is so clearly against the weight of the evidence as to amount to manifest miscarriage of justice." Rivera Castillo, 379 F.3d at 23 (citing Federico v. Order of Saint Benedict in Rhode Island, 64 F.3d 1, 5 (1st Cir. 1995). Courts are not allowed to substitute their view of the evidence for the verdict reached by the jury. Id. at 24. ANALYSIS In its Motion for New Trial and/or Remitittur, Thermo King argues that the weight of the evidence is clearly contrary to the jury's verdict since it proffered a valid nondiscriminatory reason for treating Plaintiff differently from other employees who stole company property. It also posits that there is

substantial evidence to support a finding regarding its nondiscriminatory business practices and that there is a complete absence of evidence to support a finding of willful violation of ADEA. It further avers that the Court improperly allowed

Plaintiff's counsel to characterize its witnesses' testimony as mendacious. remitittur. Thermo King's first argument is that it had a valid nondiscriminatory reason for terminating Plaintiff and that it In the alternative, Thermo King requests a

presented the testimony of three individuals who were given a second chance when they accepted their wrongdoing and were

Civil No. 03-2307 (JAG)

16

willing to help by telling what they knew. It argues it was entitled to treat those employees preferentially, as is always the case with whistleblowers and cooperators. Contrary indisputably reasonably to weigh Thermo in its as King's favor argument, because this it may to does also cover not be up

interpreted

another

attempt

discriminatory acts. It is clear that Thermo King has proffered different times explanations this for terminating In Plaintiff fact, it at different that

throughout

litigation.

argues

Plaintiff was impeached when he stated that he did not know the reasons he was terminated until he filed the suit in this case because the Unemployment Bureau of the Puerto Rico Department of Labor told him he was discharged for not following company rules and policies, receiving gifts and royalties from suppliers and selling company property. different not (Docket from he no. 169, that ¶ 37). it This is

unquestionably Plaintiff for

stating violated

terminated policy, as

accepting

company

Thermo King now argues. Moreover, as discussed above, the Joint Statement of the Case states violation of company policies as the reason for termination, not failure to accept the

wrongdoing. Therefore, it is clear that the evidence weighs in favor of a finding of pretext.

Civil No. 03-2307 (JAG) Thermo uncontested, employment King next argues that it of "introduced its notion

17 sufficient,

unimpeached practices to

evidence defeat

non-discriminatory that Plaintiff's

any

termination was age-related." (Docket No. 169). As Thermo King correctly states, this evidence is relevant and assists its

attempts to rebut the inferences that grew out of the shifting explanations. Woodman v. See Connecticut v. Teal, 51 457 F.3d U.S. 440 (1982); Cir.

Haemonetics

Corporation,

1087

(1st

1987). The Court, however, is not persuaded that this evidence is able to destroy the fatal effect of the evidence relating to shifting explanations and and disparate treatment. a Even if the and

statistical

witness

evidence

represented

relevant

valid attempt to demonstrate that Thermo King generally acts without regarding its employees' age, it failed to have the

effect of destroying the inferences created by other evidence in this case. Thermo King also argues that a new trial is warranted

because the weight of the evidence does not support a finding of willful violations of federal law. As stated above, the Supreme Court has said that an ADEA violation is willful if "the

employer ... knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Trans World Airlines, Inc. v. Thurnston, supra. Willfulness requires an

Civil No. 03-2307 (JAG) element akin to reckless disregard of, or

18 deliberate

indifference to, an employee's rights under ADEA. Sanchez v. Puerto Rico Oil Co., supra. The Court again declines to exercise its discretion and disturb the jury's finding regarding Thermo King's willful violations of ADEA. It is the Court's view that the evidence in this case plausibly justifies at the very least an inferential finding of reckless disregard of Plaintiff's

rights. Thermo allowing King further posits that the Court erred of in its

Plaintiff's

counsel's

characterization

witnesses' testimony as mendacious during closing arguments even though it objected to them and that, even though it did not object at the time, Plaintiff's counsel also accused it of

fabricating evidence against Plaintiff and asserted that Victor Quiles was threatened in order to make him provide false

testimony. When a party has timely objected to an attorney's conduct, the Court must examine "the totality of the circumstances,

including: (1) the nature of the comments; (2) their frequency; (3) their possible relevance to the real issues before the jury; (4) the manner in which the parties and the court treated the comments; (5) the strength of the case; and (6) the verdict itself. Grandfield v. CSX Transo., Inc., 597 F.3d 474, 490 (1st

Civil No. 03-2307 (JAG)

19

Cir. 2010). If the party did not object, the conduct in question is reviewed for plain error and a party must establish that: "(1) an error was committed; (2) the error was `plain' (i.e. obvious and clear under current law); (3) the error was

prejudicial (i.e. affected substantial rights); and (4) review is needed to prevent `a miscarriage of justice or [if the error has] seriously affected the fairness, integrity or public

reputation of the judicial proceedings.'" Id. at 491 (citing Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 189 (1st Cir. 1996)). Regarding the characterization of Thermo King's witnesses' testimony as mendacious, an analysis of the totality of the

circumstances does not lead the Court to find that a new trial is warranted. Plaintiff's counsel used his opportunity during closing arguments to try to persuade the jury to doubt the

credibility of Thermo King's witnesses. This is clearly relevant to the issue before the jury and, even if they may be considered inflammatory, the comments do not deviate from the style

employed by attorneys during closing arguments. Furthermore, the final instructions read to the jury included specific

instructions regarding the fact that counsel's arguments are not evidence. Specifically, Jury Instruction #8 explained that

arguments, statements, questions and objections by lawyers are

Civil No. 03-2307 (JAG) not evidence. (Docket No. 159). Also, Jury Instruction

20 #25,

which related to the Conduct of Counsel, explicitly states that jurors are the sole judges of the credibility of all the

witnesses. Id. Regarding the other two alleged instances of misconduct by Plaintiff's attorney, the Court finds that no basis for a new trial exists under the prescribed plain error review standard. Again, Plaintiff's conduct was within the normal parameters of attorney conduct and the Court provided the jury specific

instructions regarding the fact that counsel's arguments are not evidence. Moreover, Plaintiff's attorney, in stating that Victor Quiles tried was to threatened persuade the into providing to false testimony, Joint merely IV

jury

interpret

Exhibit

favorably to him. Said exhibit, as mentioned above, consists of a memorandum written by Steve Soto, from Thermo King's Human resources during a Department, meeting. detailing what Victor Quiles says, told him

The

memorandum

explicitly

"[Victor

Quiles] says he was threatened." Id. Given the above, the Court declines to disturb the jury's finding for Plaintiff under Law 80 and Law 100. CONCLUSION For the reasons stated above, the Court hereby DENIES

Thermo King's Renewed Motion for Judgment as a Matter of Law

Civil No. 03-2307 (JAG) (Docket No. 168) and Motion for New Trial and/or

21 Remittitur

Pursuant to Rule 59 of the FRCP (Docket No. 169).

IT IS SO ORDERED. In San Juan, Puerto Rico, this 29th of March, 2011.

S/ Jay A. García-Gregory JAY A. GARCÍA-GREGORY United States District Judge