In this case, a 61-year old employee of the Department for the Aging for the City of New York ("DFTA") was discharged after some 21 years of service. She brought this action against DFTA and its Commissioner, alleging age discrimination and retaliation. After a five-day trial, a jury concluded that defendants had unlawfully and wilfully discriminated and retaliated against her. Judgment was entered in her favor in the amount of $1,559,359.01. Defendants appealed. For the reasons set forth below, we affirm.
STATEMENT OF THE CASE
Defendant-appellant DFTA was created in 1968 and was initially known as the "Mayor's Office for the Aging." It is the city agency responsible for promoting and coordinating services for the elderly. It provides a broad range of services, primarily through contracts with non-profit organizations. It also engages in advocacy and policy analysis.
Defendant-appellant Prema Mathai-Davis ("Mathai-Davis") was appointed Commissioner of DFTA in January 1990, when she was 39 years old. She replaced Janet Sainer, the former Commissioner, who was then 71 years old.
Plaintiff-appellee Joyce Stratton ("Stratton") was employed at DFTA from January 5, 1970 through February 21, 1991, when she was discharged. At the time, she was 61 years old.
Stratton's Employment with DFTA
For most of her 21 years at DFTA,
Throughout her employment with DFTA, Stratton received very favorable performance evaluations. From 1981 until the appointment of Mathai-Davis as Commissioner, Stratton consistently received performance ratings of "outstanding" or "very good," the two highest possible ratings. Her supervisor for the period from 1982 through late 1989, Marcia Stein, testified that a "very good" rating was "above the median." She also testified that Stratton had an "expertise" in the area of benefits and entitlements that "very few of us had" as well as a "passion for the poor elderly that ... fueled her in advocating for them." In August 1990, Stratton received an award from the Regional Commissioner of the Social Security Administration for her work on a Supplemental Security Income outreach program.
When Mathai-Davis took over as commissioner, Stein, who was then 51 years old, was replaced by 39-year old Lorraine Cortez-Vasquez. A number of other changes in DFTA followed as it was reorganized. Certain of these changes were reflected in DFTA's organizational charts. The average age of the individuals listed on the organizational chart as of January 31, 1990, when Mathai-Davis took over as Commissioner for Sainer, was 50.3, while the average age for the individuals on the April 30, 1991 chart was 45.9.
As part of the changes, DFTA also shifted certain of Central I & R's functions to the field offices. After considering different options, DFTA decided to retain Stratton as Director of the reorganized Central I & R. Implementation of the "decentralization" of Central I & R was commenced, but before the process was completed, the City's "fiscal crisis" and resultant "budget cuts intervened."
After Mathai-Davis took over as Commissioner, the manner in which Stratton was treated by her supervisors changed. She was told not to send out certain publications
Because of the "budget crisis," DFTA laid off 36 employees in February of 1991. Stratton was one of them. Management did not, however, consult Stratton about any of the changes, even though she was the Director of Central I & R and had been at DFTA some 21 years. DFTA decided to eliminate Stratton's position purportedly because it would be difficult, with the planned reductions in staff, to justify having a manager at her level. As Ted Taberski, DFTA's Director of Administration and Budget, testified at trial, "the [D]epartment didn't see a role that [Stratton] would be suited for of those that were available."
When Stratton learned that she was going to be discharged, she sought the assistance of Mary Mayer, DFTA's director of research. She asked Mayer to speak to the Commissioner on her behalf and asked Mayer to specifically mention her age because she was concerned about the impact dismissal would have on her pension. In a later conversation, Mayer told Stratton that she had spoken to the Commissioner and had specifically mentioned Stratton's age. According to Mayer, the Commissioner responded: "`What about young mothers who are being fired?'"
Before her employment was actually terminated, Stratton retained counsel who met with DFTA in an effort to prevent her dismissal. Stratton's counsel raised the issue of age discrimination as well as Stratton's concerns about the impact termination would have on her pension. Stratton's counsel discussed with representatives of DFTA the possibility of finding Stratton another job.
Although DFTA contended that there was no longer a need for Stratton as a manager because of the purported staff reductions, in fact there continued to be a need for supervision in Central I & R. As city-funded workers in Central I & R were laid off, they were replaced by federally-funded "Title V" workers who needed supervision. Just a few days after Stratton was laid off, her duties were taken over on a part-time basis by Kitty Williston, who was almost 13 years her junior. Williston was given the title of Acting
At some point in 1991, DFTA started looking for a full-time supervisor of Central I & R. In early 1992, DFTA filled the position with Jean McEwan, who was some 26 years younger than Stratton. McEwan had been employed by DFTA as a Community Coordinator for some three years when she was laid off in 1991, and had had no prior experience in Central I & R. Stratton was never contacted or interviewed for the job.
Eventually, DFTA "recalled quite a number of [employees]" who had been laid off; all of the community associates and community coordinators who had been laid off were recalled. These were "noncompetitive" employees who were given the opportunity to be rehired and two were actually rehired. Stratton participated in a program for laid-off employees at the City's Redeployment Center. According to testimony from Sarah Rosenfeld, DFTA's Director of Personnel and Labor Relations, the Redeployment Center would send out referrals for former staff they felt might be qualified for vacant positions. Rosenfeld acknowledged that referrals "were supposed to receive consideration before anybody else" and that Stratton had been referred for some vacancies. Stratton was not, however, "called back" for an interview for any position within DFTA. She received only one call from the Redeployment Center for an interview, which was for a position with another agency working with 14-21 year-olds who had committed violent crimes. She interviewed for the position but did not get the job. She was never offered an alternative position within DFTA.
In May 1991, Stratton filed a charge of discrimination with the United States Equal Employment Opportunity Commission. She commenced this lawsuit on October 2, 1991.
Stratton's Application for the New DFTA Position
In April 1992, Stratton saw an advertisement in The New York Times for an opening at DFTA for the newly-created position of Director of the Bureau of Program and Resource Development. Although the Redeployment Center had referred Stratton for that particular position, DFTA had not contacted Stratton in response to the referral. Stratton submitted an application directly and, as a result of that application, she was interviewed by Mary Mayer and Sarah Rosenfeld. Although the position had been split into two positions by the time Stratton was interviewed, Stratton was well qualified for at least one of the new positions, Director of the Bureau of Benefits and Entitlements. In fact, in her view there was no one "better qualified" for the position, because the job encompassed "all of what I & R had done and then more."
Rosenfeld, the Director of Personnel, usually did not interview applicants for jobs, but she was asked by Rabin, DFTA's General Counsel, to interview Stratton. She did not interview any of the other candidates, and she acknowledged at trial that she was not in a position to evaluate Joyce Stratton as to her skills and abilities in providing services and that she would not be able to make any comparisons between Stratton and other candidates. Although Rabin interviewed a dozen candidates and participated in the process of screening the applicants and making recommendations to the Commissioner, he chose not to interview Stratton.
The Proceedings Below
This action was commenced on October 2, 1991. The complaint asserted claims of discrimination,
The case was tried to a jury starting on November 27, 1995, with Judge Shira A. Scheindlin presiding. On December 1, 1995, the jury returned a verdict in favor of Stratton. The jury found that Stratton had proven that the reasons articulated by defendants for terminating her employment or for not "recalling or rehiring her" were not the true reasons. It found that Stratton had proven that age was a determinative factor in defendants' decision to terminate her employment or not to recall or rehire her. It found that Stratton had proven that defendants' actions were motivated at least in part by a desire to retaliate against her for filing an age discrimination claim against them. The jury awarded $500,000 in back pay and found that defendants' actions were wilful.
Post-trial motions followed. Defendants moved pursuant to Fed.R.Civ.P. 59(a) for a new trial or remittitur and pursuant to Fed. R.Civ.P. 50(b) for judgment as a matter of law dismissing the complaint. Stratton cross-moved for an award of front pay and the restoration of her full pension and social security benefits. In an Opinion and Order dated March 12, 1996, Judge Scheindlin denied defendants' motions, conditioning the denial of the motion for a new trial on the amount of damages on Stratton's acceptance of a reduction in the back pay award from $500,000 to $373,886.23, which would be doubled pursuant to the liquidated damages provision of the ADEA, 29 U.S.C. § 626(b), because of the jury's finding of wilfulness. Judge Scheindlin also granted Stratton's cross-motion and awarded $378,000 in front pay and other benefits. Stratton v. Department for the Aging, 922 F.Supp. 857 (S.D.N.Y.1996).
Stratton then moved for attorneys' fees and costs and prejudgment interest. In an Opinion and Order filed June 25, 1996, Judge Scheindlin granted the motion and awarded attorneys' fees and costs in the amount of $337,760.03 and prejudgment interest in the amount of $63,880.75. Stratton v. Department for the Aging, No. 91 Civ. 6623, 1996 WL 352909 (S.D.N.Y. June 25, 1996).
Stratton accepted the remittitur, and final judgment was entered on July 23, 1996, in the total amount of $1,559,359.01, consisting of $747,772.46 (the back pay award of $373,886.23 doubled by virtue of the jury's finding of wilfulness), $378,000 in front pay and other benefits, $337,760.03 in attorneys' fees and costs, $63,880.75 in prejudgment interest awarded by Judge Scheindlin on June 24, 1996, and additional prejudgment interest.
This appeal followed.
On appeal, defendants make three principal arguments: first, they contend that the district court erred in receiving into evidence, over defendants' objection, the two organizational charts showing the ages of DFTA's senior staff before and after Mathai-Davis took over as Commissioner; second, they argue that the evidence was insufficient to support the jury's findings of wilful discrimination and retaliation; and third, they contend that the compensatory damages award, even as reduced by the district court, was excessive.
We review the district court's decision to admit the two charts into evidence for abuse of discretion. See Eagleston v. Guido, 41 F.3d 865, 873 (2d Cir.1994); United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983).
The two charts consisted of DFTA's own organizational charts, one as of January 31, 1990 (just before Mathai-Davis took over), and one as of April 30, 1991 (some 14 months later). The charts were "marked up" to show each person's age and to show that the average age had dropped from 50.3 when Sainer was Commissioner to 45.9 after Mathai-Davis took over. Defendants argue that
First, the two charts were reliable. They were defendants' own documents — organizational charts prepared by DFTA in the ordinary course of business, as of two different dates, one just before Mathai-Davis took over and one 14 months later. The only information added were the ages of the individuals listed and the averages of all their ages, and this basic information, taken from defendants' own records, was not disputed. There was no selective sampling as everyone on each chart was included in calculating the average age.
Second, no expert was required. See Green v. Kinney Shoe Corp., 715 F.Supp. 1122, 1124 (D.D.C.1989) ("[p]arties should not be deprived of the opportunity to present the results of fairly simple statistical tests simply because they cannot obtain the services of a trained statistician"). There was no "gerry-mandering" of statistics here. Rather, simple arithmetic was used — the ages of all the individuals were used to calculate an average age for each chart. There were no sophisticated statistical theories that needed explanation. See Bruno v. W.B. Saunders Co., 882 F.2d 760, 766-67 (3d Cir.1989) (in individual disparate treatment case, statistical evidence may be less finely tuned than in a disparate impact case); see also Deloach v. Delchamps, Inc., 897 F.2d 815, 820 (5th Cir. 1990).
Third, defendants could have offered their own charts or statistics or called their own expert witness. If there were other organizational charts that showed a different average age, defendants could have offered them. If defendants felt an expert witness would have helped clarify the charts, they could have called such a person to testify. They did none of these things.
Fourth, the drop in the average age of all the individuals sufficiently senior to be listed on the organizational charts was relevant. See Schulz v. Hickok Mfg., Co., 358 F.Supp. 1208, 1213 (N.D.Ga.1973) (permitting into evidence statistics showing average age of managers had dropped by nearly 13 years in 18-month span). Although statistics play a much more substantial role in disparate impact cases, they are admissible to support a claim of discrimination even in a disparate treatment case involving a single plaintiff. Hudson v. International Bus. Mach. Corp., 620 F.2d 351, 355 (2d Cir.1980); see Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106, 113 & n. 11 (1st Cir.1979) (statistics add color and may be helpful to an individual claim of discrimination).
Finally, Stratton was not relying solely on the two charts. To the contrary, the two charts were only part of the overall proof. As the district court concluded, the charts were accompanied by substantial other evidence showing discrimination. Moreover, the district court cautioned the jury not to place undue reliance on the charts by giving the following instruction:
In view of the simple nature of the statistical analysis, the district court's cautioning instruction, and the overall evidence in the case, the district court did not abuse its discretion by receiving the charts into evidence.
B. The Sufficiency of the Evidence
Defendants attack the sufficiency of the evidence with respect to the jury's findings that defendants wilfully discriminated and retaliated against Stratton by firing her and failing to rehire her. The district court denied defendants' motion pursuant to Fed. R.Civ.P. 50(b) to this effect.
In ruling on a motion for judgment as a matter of law under Rule 50(b), a district court is required to
Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir.1988) (internal quotes omitted); see LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2546, 135 L.Ed.2d 1067 (1996). The court may properly grant the motion only if there is "`such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [the moving party].'" LeBlanc-Sternberg, 67 F.3d at 429 (citing Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992)). The same standard governs appellate review of a decision granting or denying judgment as a matter of law. See, e.g., LeBlanc-Sternberg, 67 F.3d at 429-30 (reversing grant); Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 889 (2d Cir.1988) (upholding denial).
The "ultimate issue" in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an "impermissible reason," i.e., a discriminatory reason. Fields v. New York State Office of Mental Retardation & Dev. Disabilities, 115 F.3d 116, 119 (2d Cir.1997); see St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Renz v. Grey Adver., Inc., 135 F.3d 217, 220-22 (2d Cir. 1997) (age need not be principal or sole factor); Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir.1997) ("the ultimate burden of persuading the trier of fact of intentional discrimination remains at all times with the plaintiff"). A plaintiff may meet that burden by using a "mixed-motives" analysis, de la Cruz v. New York City Human Resources Admin. Dep't of Social Servs., 82 F.3d 16, 23 (2d Cir.1996), petition for cert. filed, (U.S. July 10, 1996) (No. 96-5214); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.1992),
In recent years, the three-step McDonnell Douglas formulation has been clarified. St. Mary's Honor Center, 509 U.S. at 510-11, 113 S.Ct. at 2748-50; Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir.
Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision. The purpose of this step is "to force the defendant to give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent." Fisher, 114 F.3d at 1335-36.
Third, if the defendant articulates a non-discriminatory reason for its actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's Honor Center, 509 U.S. at 510-11, 113 S.Ct. at 2748-50. The plaintiff must then show, on the basis of all the evidence presented and without the benefit of any presumptions, that it is more likely than not that the employer's decision was motivated at least in part by discrimination. Because the defendant has at this point offered a non-discriminatory reason for its actions, the plaintiff must show that the proffered reason is in reality a pretext for unlawful discrimination, i.e., that it is "a mask for unlawful discrimination." Fisher, 114 F.3d at 1337.
In the present case, defendants concede that Stratton demonstrated the first three elements of a prima facie case of discrimination and retaliation. They contend, however, that Stratton failed to show that she was discharged under circumstances that give rise to an inference of age discrimination or retaliation. They further contend that even if Stratton proved the fourth element of her prima facie case, she did not prove that their articulated reasons for dismissing her — the "budget crisis" — and for not rehiring her — she was not the most qualified candidate for the position — were pretextual.
Defendants' arguments are rejected. Viewing the evidence in the light most favorable to Stratton, and giving her the benefit of all reasonable inferences, we cannot say that the jury's findings were the result of "sheer surmise and conjecture" or that fair minded persons could not have arrived at this verdict. Logan v. Bennington College Corp.,, 72 F.3d 1017, 1022 (2d Cir.1995), cert. denied, ___ U.S. ___, 117 S.Ct. 79, 136 L.Ed.2d 37 (1996).
The record contains sufficient evidence to support the jury's conclusions that defendants discriminated against Stratton because of her age. That evidence included the following: Stratton, a 61-year old employee with a strong record, was inexplicably treated in a negative fashion as soon as a new (and substantially younger) Commissioner and supervisor took over;
The evidence at trial also was sufficient to support the jury's finding of pretext. It is undisputed that in 1990 and 1991, New York City was experiencing a budget crisis. But the jury's implicit finding that defendants could have retained Stratton in some capacity at DFTA notwithstanding the budget crisis is supported by the record. For example, although defendants contended that there was no longer a need for Stratton as a manager because of staff reductions caused by the budget cuts, in fact there was a continued need for a manager because Central I & R continued to be busy, federally-funded Title V workers replaced laid-off city employees, and certain city employees were recalled and rehired. The jury could have reasonably found that, even assuming the duties of the Director position were changed to some extent, Stratton could have been retained to fill the position that Williston first filled on a part-time basis and that McEwan later filled on a full-time basis.
A finding of pretext, of course, does "not necessarily mean that the true motive was the illegal one argued by the plaintiff." Fisher, 114 F.3d at 1338. Rather, the pretext may mask some other improper, albeit not illegal, motivation, such as "back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, [or] spite." Id. at 1337. Here, however, defendants never argued at trial that their actions were actually motivated by some other, non-discriminatory motive, for they never acknowledged the possibility that their articulated reasons for their employment decisions could be found to be pretextual. See Binder v. Long Island Lighting Co., 57 F.3d 193, 200 (2d Cir.1995) ("We do not exclude the possibility that an employer may explain away the proffer of a pretextual reason for an unfavorable employment
Likewise, the jury's finding that defendants retaliated against Stratton is supported by the evidence, including the evidence of discrimination discussed above. Stratton was undeniably treated differently from all the other candidates for the position of Director of the Bureau of Benefits and Entitlements. The jury was entitled to reject defendants' explanation for its disparate treatment of Stratton and it was entitled, from the record evidence, to find that Stratton was more qualified than the successful candidate and that she was not fully considered or hired because she had filed a claim of discrimination.
Finally, the jury's finding of wilfulness was supported by the evidence. An employer acts wilfully if it "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Hazen Paper Co. v. Biggins, 507 U.S. 604, 617, 113 S.Ct. 1701, 1709-10, 123 L.Ed.2d 338 (1993). Here, the jury's finding that defendants knew that their conduct was prohibited by statute is amply supported by the evidence. Defendants were charged with the responsibility of protecting the rights of older Americans. Moreover, the issue of age discrimination was raised by Stratton's attorneys before she was dismissed, and hence there can be no question that defendants were aware, before they made any final decisions with respect to Stratton's employment, that age discrimination was unlawful. Yet, as the jury found, they acted in a discriminatory and retaliatory manner nonetheless.
Accordingly, we affirm the jury's findings that defendants wilfully discriminated and retaliated against Stratton.
Three issues remain with respect to damages: (1) the use of a $70,000 annual salary figure to compute damages; (2) the award of an additional 35% for "fringe benefits"; and (3) the failure of the district court to discount the front pay award to present value.
In reviewing a claim of excessive damages, an appellate court must accord substantial deference to the jury's determination of factual issues. See Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir.1982). The trial court's determination not to set aside or reduce a jury award will be overturned only for abuse of discretion. See, e.g., Martell v. Boardwalk Enters., Inc., 748 F.2d 740, 750 (2d Cir.1984); Batchkowsky v. Penn Central Co., 525 F.2d 1121, 1124 (2d Cir.1975). Here, of course, Judge Scheindlin ordered a remittitur. Hence, the question is whether she abused her discretion in declining to further reduce damages.
Defendants' contention that the use of a $70,000 salary, which was the salary earned by Joseph Barnes, the successful candidate for the position of Director of the Bureau of Benefits and Entitlements, is speculative is based solely on their argument that Barnes was a "far superior candidate" to Stratton and that she therefore never would have gotten the position. The short answer to this argument, however, is that the jury rejected it. The jury concluded that Barnes was not more qualified and that, but for the discriminatory and retaliatory acts of defendants, Stratton would have gotten that position. Hence, as Judge Scheindlin held, it was rational for the jury to base damages on a $70,000 annual salary.
Finally, defendants' contention that the district court erred by not discounting its front pay award to present value is also rejected. The district court did not factor future salary increases into its front pay award; hence, it was not required to discount to present value. See, e.g., Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1257-58 (2d Cir.1987) (affirming front pay award not discounted to present value); Gusman v. Unisys Corp., 986 F.2d 1146, 1147-48 (7th Cir. 1993) (same); cf. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1189 (2d Cir.1992) (upholding front pay award discounted to present value after 17 years of projected annual 8.3% salary increases were factored in); Whittlesey v. Union Carbide Corp., 1983 WL 652, at *2 (S.D.N.Y.1983) (discounting to present value only after factoring in projected inflation values), aff'd, 742 F.2d 724 (2d Cir.1984).
The damages calculations are affirmed as well.
For the reasons set forth above, the judgment of the district court is affirmed in all respects.
In view of the jury's verdict, of course, we must resolve this conflict in the evidence in favor of Stratton.
Rabin was hired in 1990 or 1991 to replace Emilio Gautier as General Counsel. Although there was a "budget crisis" that purportedly necessitated lay-offs, Rabin was hired at a salary of $76,000 to replace Gautier, who was earning a salary of only $52,410 when he left. At the time, Rabin was 39 years old and Gautier was 58 years old.