Binder v. Long Island Lighting Co.

• Decision Date: 08 June 1995
• Docket Number: D,No. 568,568
• Citation: 57 F.3d 193
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1783, 64 USLW 2032, 32 Fed.R.Serv.3d 346 Donald BINDER, Plaintiff-Appellant, v. LONG ISLAND LIGHTING COMPANY, Defendant-Appellee. ocket 94-7483.
• Court: U.S. Court of Appeals — Second Circuit

Page 193

57 F.3d 193

67 Fair Empl.Prac.Cas. (BNA) 1783, 64 USLW 2032,

32 Fed.R.Serv.3d 346

Donald BINDER, Plaintiff-Appellant, v. LONG ISLAND LIGHTING COMPANY, Defendant-Appellee.

No. 568, Docket 94-7483.

United States Court of Appeals Second Circuit.

Argued Nov. 1, 1994.

Decided June 8, 1995.

Lawrence C. Downes, Gilroy Downes Horowitz & Goldstein, New York City, for plaintiff-appellant.

Joseph E. Gulmi, Richards & O'Neil, New York City (Robert J. Grey, Mindy S. Novick, Hicksville, NY, of counsel), for defendant-appellee.

Samuel A. Marcosson, Washington, DC (James R. Neely, Jr., Gwendolyn Young Reams, Vincent J. Blackwood, of counsel), for amicus curiae E.E.O.C.

Before: WINTER, MAHONEY, and GODBOLD, ^* Circuit Judges.

WINTER, Circuit Judge:

Donald Binder appeals from Judge Mishler's grant of judgment n.o.v. and alternative grant of a new trial on the ground that the verdict was against the weight of the evidence. These rulings followed a jury verdict finding the Long Island Lighting Company ("LILCO") liable for discrimination under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. ("ADEA"), and the New York Human Rights Law, N.Y.Exec.Law

Sec. 296. Binder contends that there is sufficient evidence to sustain the jury's verdict and that the district court erred by granting LILCO's motion for judgment notwithstanding the verdict. We reverse the district court's grant of judgment n.o.v. We hold that the alternative grant of a new trial is reviewable on an abuse of discretion standard and reverse. With regard to damages, we order a remittitur of the award of compensatory damages to $552,337, to be doubled because of the jury's finding of wilfulness, which is supported by the evidence. We affirm the district court's remittitur of the award for pain and suffering to $5,000.

BACKGROUND

This is the second time this matter has been before us. Familiarity with our prior decision is assumed. See Binder v. Long Island Lighting Co., 933 F.2d 187 (2d Cir.1991) ("Binder I ").

Given the jury's verdict for Binder, we view the evidence in the light most favorable to him. Binder began working for LILCO in 1955, shortly after receiving a bachelor's degree in mechanical engineering. Over the next 31 years, Binder progressed through the ranks at LILCO, while earning favorable performance evaluations. He started in the gas division, acting as a project engineer and, later, overseeing the design and construction of gas manufacturing plants. Later, Binder became involved in LILCO's nuclear program. He received a master's degree in nuclear physics and took additional courses in reactor design, operation, and safety. Binder was the original quality assurance administrator for the Shoreham nuclear project, and later became the project engineer for Shoreham. When LILCO formed a division of nuclear engineering, Binder was chosen as its first division manager. When the division was elevated to departmental status, Binder became its first department manager and later assistant to the vice president in charge of nuclear operations.

Binder's various job titles were: from 1955 to 1958, junior engineer; from 1958 to 1964, associate engineer; from 1964 to 1969, engineer; in 1969, senior engineer; from 1969 to 1970, Shoreham quality assurance administrator; from 1970 to 1973, project engineer; from 1973 to 1979, division manager; from 1979 to 1984, department manager; and from May 1984 to November 1984, assistant to the vice president of nuclear operations.

In December 1984, Binder became a consulting engineer on the staff of Matthew Cordaro, vice president of engineering and administration. In this position, Binder represented Cordaro at meetings and also acted as a troubleshooter for Cordaro, particularly with respect to cost overruns on LILCO's large projects. There was evidence that Binder performed well as Cordaro's assistant.

William Catacosinos became chief executive officer of LILCO in 1984 and immediately began a massive reorganization. Cordaro had been delegating large amounts of responsibility to his two staff assistants, Binder and Walter Ferraro, but Catacosinos wanted senior managers like Cordaro to take a more active, hands-on role. In late 1985, Catacosinos sought the elimination of all staff assistant positions, including those held by Binder and Ferraro. Cordaro initially resisted but, in September 1986, he notified Binder that his position, along with Ferraro's, was going to be eliminated. Cordaro told Binder to see Robert Kelleher, vice president of human resources, about finding another position at LILCO.

Positions at LILCO were generally filled in one of two ways. Management succession was used to place employees in positions of division manager or higher. Under this process, the human resources department nominated candidates. Self-nomination was used with regard to positions below division manager. Under the self-nomination method, vacancies would be posted on bulletin boards, and candidates would apply for the open position. Binder never applied to fill an open position.

However, Binder clearly expressed his desire to find another position at LILCO. As suggested by Cordaro, Binder met with Kelleher and discussed what could be done to find him another position. Kelleher asked Binder for his preferences--which Binder gave. These preferences included, inter Meanwhile, in August 1986, Christopher Cole began to organize a new project management department at LILCO. He initially proposed a structure comprised of three division managers and eighteen subordinate positions. Ten of the subordinate positions were approved and transferred from other areas in LILCO. Some of these ten positions were already staffed, but others were vacant. Seven other positions were later approved on the condition that they too would involve transfers within LILCO.

alia, project management and co-generation. Significantly, Binder never informed Kelleher that there were jobs in the company that he would refuse to take. Kelleher told Binder that he would investigate available positions, and Binder testified that he was, at the time, relying upon Kelleher to find him a new position.

After Binder's meeting with Kelleher, Cole approached Binder about joining the project management department. When Binder expressed interest, Cole suggested that he speak with Martin Mullarkey, one of the division managers in the project management department. Mullarkey, who had earlier been hired at LILCO by Binder, told Binder that he wanted him to work on an instructional manual for project managers. They did not discuss job title or salary level. According to Binder's testimony, Mullarkey initiated the process of transferring Binder to his group by filling out a change of status form.

Binder then met with Cole, who was Mullarkey's supervisor, and Cole, according to Binder's testimony, prepared a personnel requisition form that requested authorization for a position for Binder to allow him to work on the manual. A requisition form is required when a new position is created, while a change of status form is used when an employee moves to an existing position. After Cole signed the requisition form, it went to Cordaro for approval. Catacosinos denied authorization to create the new position.

Binder continued to work on Cordaro's staff, but, near the end of 1986, February 1, 1987 was designated as a target date for the elimination of Binder's position. Also in late 1986, Ferraro's position was eliminated, but he was transferred to a lower level job at LILCO. Ferraro was 48 years old at the time.

On February 3, 1987, Cordaro informed Binder that his position had been eliminated and that Catacosinos considered Binder a poor performer. Approximately two days later, Kelleher dropped by Binder's office. Binder asked Kelleher why Catacosinos was displeased with his performance. Kelleher advised Binder to think of his pending dismissal as equivalent to the mass layoffs that had occurred several years before. Binder also told Kelleher that he was incredulous that no other position could be found for him at LILCO.

Binder subsequently brought the present action, alleging violation of the ADEA and the New York Human Rights Law. Binder, who was 57 years old when terminated, claimed that LILCO: (i) eliminated his staff assistant position because of his age; (ii) refused to create a new position for him because of his age; and (iii) refused to consider him for any other available position because of his age. The district court granted summary judgment for LILCO on all three claims. We affirmed as to the first two claims but reversed and remanded Binder's third claim. See Binder I. We observed that "[t]he ADEA does not forbid employers from adopting policies against 'underemploying' persons in certain positions so long as those policies are adopted in good faith and are applied evenhandedly," but that the issues of good faith and evenhanded application were for the trier of fact to resolve. Id. at 193. We concluded that there was a material issue of fact regarding whether LILCO's agent, Kelleher, "was acting out of a genuine desire to avoid placing Binder in a job in which he might be frustrated, exhibit low morale and perform poorly" or was offering that explanation as a pretext to disguise age discrimination. Id.

Binder argued to the jury that LILCO considered only his age and not his accomplishments in declining to offer him any other available position in the company. LILCO contended that there were legitimate nondiscriminatory reasons for not offering The jury deliberated for less than two hours before returning a verdict in Binder's favor of $828,505 for lost wages and $497,738 for pain and suffering. It also found that LILCO's discrimination against Binder was willful. See 29 U.S.C. Sec. 626(b). The district court declined to accept the verdict. Rather, over Binder's objection, the court gave the jury a supplemental question asking it...