Bruno v. W.B. Saunders Co.

• Citation: 882 F.2d 760
• Decision Date: 08 September 1989
• Docket Number: No. 88-1895,88-1895
• Parties: 50 Fair Empl.Prac.Cas. 898, 51 Empl. Prac. Dec. P 39,244, 58 USLW 2162, 28 Fed. R. Evid. Serv. 1057 Adeline M. BRUNO v. W.B. SAUNDERS COMPANY and CBS Educational and Professional Publishing, a division of CBS, Inc., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 760

882 F.2d 760

50 Fair Empl.Prac.Cas. 898,

51 Empl. Prac. Dec. P 39,244, 58 USLW 2162,

28 Fed. R. Evid. Serv. 1057

Adeline M. BRUNO v. W.B. SAUNDERS COMPANY and CBS Educational and Professional Publishing, a division of CBS, Inc., Appellants.

No. 88-1895.

United States Court of Appeals Third Circuit.

Argued April 17, 1989.

Decided Aug. 14, 1989.

Rehearing and Rehearing In Banc Denied Sept. 8, 1989.

John J. McAleese, Jr. (argued), John H. Widman, McAleese, McGoldrick & Susanin, P.C., King of Prussia, Pa., for appellants.

Geoffrey P. Gompers (argued), Philadelphia, Pa., for appellee.

Before SEITZ, ^* SLOVITER and GREENBERG, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

The appeal in this Age Discrimination in Employment (ADEA) action, 29 U.S.C. Sec. 621, et seq., follows a jury verdict against the defendants W.B. Saunders Company (Saunders) and CBS Educational and Professional Publishing (CEPP) in the amount of $850,000. After the verdict, the district court, which had jurisdiction under 28 U.S.C. Sec. 1331, denied the defendants' motion for judgment n.o.v. or in the alternative for a new trial. This court has appellate jurisdiction under 28 U.S.C. Sec. 1291.

I.

In relating the background of this case, we rely on uncontradicted testimony, except where noted. Adeline Bruno, the plaintiff in this case, was employed by W.B. Saunders Company from 1974 until May 1986. Saunders is a publisher of medical textbooks and medical periodicals, or "clinics." During the entire time relevant to this case, W.B. Saunders was a wholly owned subsidiary of CEPP.

Prior to the events out of which this litigation arose, Bruno was Director of Saunders' Central Order Processing Department. This position was described in Saunders' internal nomenclature as a "level 9" position. As Director of Central Order Processing, Bruno earned $44,350 annually as of December 1984.

In early 1984, Saunders announced plans to eliminate the Central Order Processing Department. One consequence of this would ultimately be the elimination of Bruno's job. Bruno was at the time forty-six years old.

Later that year, while Bruno was still working in her Central Order Processing job, the Manager of the Clinics Fulfillment Department at Saunders was transferred, and his job became open. Anthony Degutis, then Director of Budgets and Planning at Saunders, was given responsibility for finding a replacement. Within the Saunders hierarchy, the title "Manager" was a step below that of "Director," the title then held by Bruno. The newly open position was classified by Saunders as a "level 8" position. Bruno applied for the job.

The Clinics Fulfillment Department processes ("fulfills") orders for Saunders' clinics. From 1977 until it was computerized in 1980, the Clinics Fulfillment Department had been under the direction of Bruno in her capacity as Director of Central Order Processing. Degutis testified that his original belief was that Bruno "would best fill this position." Indeed, Degutis was informed by two CEPP executives in New York to whom Bruno had indirectly reported, Richard Bates and William Wright, that Bruno was the obvious successor to the Clinics Fulfillment position.

At the interviews conducted by Degutis, Beverly Dietrich, one of the ten candidates for the position, was treated differently from the others. Dietrich, who was then 36, was taken out by Degutis for a ninety minute lunch at an upscale restaurant near Saunders' office in Philadelphia. None of the other candidates was taken to a restaurant. Bruno was interviewed for approximately twenty minutes in a vacant office in the Saunders building.

Degutis testified that Dietrich "was not at the time we started the interview process[,] in my mind[,] qualified" for the Clinics Fulfillment position. At the time of the interviews for the job of Manager of Clinics Fulfillment, Dietrich was a Supervisor of Systems Analysis in the Clinics Fulfillment Department. Within the Saunders hierarchy, "Supervisors" are below "Managers." Dietrich's particular job was classified as a "level 3" position. Dietrich had been with Saunders three years, and had worked on the computerization of the Clinics Fulfillment Department. At the time of her interview, Dietrich was earning an annual salary of $19,773.

Dietrich's previous work experience--beginning several years before she began working at Saunders--had been as Assistant Manager and then Manager of the Arena Stage, a theater in Washington, D.C. In that position she was responsible for a staff of 15 to 20 people. She was paid on an hourly basis. Her more recent work experience prior to joining Saunders had been as a sales clerk at Bamberger's Department Store and as a front office manager at a grocery store.

Two months before formally filling the position, Degutis made Dietrich temporary head of the Clinics Fulfillment Department. While Dietrich was at the time the senior of the three Supervisors in the Department, Bruno testified that Degutis told her that Dietrich had been given this job because "I know how everybody felt about Beverly so I wanted to give her a chance to prove herself." Degutis testified that this interim appointment was not intended to be a testing period for Dietrich.

Ultimately, Degutis chose Dietrich to fill the post permanently. Although the job had been posted as a "level 8" position, it was given initially to Dietrich as a "level 7." Dietrich was raised from a level 3 to a level 8 in two steps primarily because Saunders management felt that her salary increase would otherwise have been too great for one person to receive at one time. Six months after her installment as Manager of Clinics Fulfillment, Dietrich's annual salary was $29,000. Following Dietrich's selection, Bruno filed an Equal Employment Opportunity Commission (EEOC) charge alleging discrimination on the basis of age.

Several months after she was passed over for the Clinics Fulfillment position, and while she was still working at Saunders, Bruno was offered a job as Manager of Inventory Planning and Control in the Bellmawr, New Jersey warehouse facility Saunders shared with other CEPP subsidiaries. Bruno first accepted the job, but changed her mind four weeks later, before the job commenced. Bruno testified that she was told by a CEPP executive that a condition of her employment in that position was that she not proceed with her age discrimination claim.

Bruno was laid off by Saunders in May 1986. After her termination, Bruno continued to receive pay for four months. Seven months after her severance pay ended, Bruno accepted a job at the Provident National Bank for an annual salary of $18,000 plus benefits.

Bruno brought this action in the district court under the ADEA. ¹ After trial, the jury found the defendants liable for "willful" age discrimination in their failure to give Bruno the Manager of Clinics Fulfillment job, and awarded liquidated damages as provided for by the statute. See 29 U.S.C. Sec. 626(b). The jury verdict in favor of Bruno included $150,000 denominated "lost wages and benefits" and $700,000 denominated "front pay." The parties agree that half of each of these amounts represents liquidated damages.

On appeal, the defendants present a litany of alleged errors.

II.

The defendants' first challenge to the judgment in the district court is that the evidence was insufficient to support the verdict. To win on such a challenge, the defendants must show that the record "is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Simone v. Golden Nugget Hotel, 844 F.2d 1031, 1033 (3d Cir.1988) (citation omitted).

Under the now familiar analytical framework that has been established for analyzing ADEA claims, the plaintiff first bears the burden of establishing a prima facie case. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the plaintiff meets this burden, it raises an inference of unlawful discrimination. The burden of production then shifts to the defendant, who can dispel the inference of discrimination by articulating a "legitimate, non-discriminatory reason" for its employment action. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. If the defendant succeeds in this, the burden then returns to the plaintiff, who retains the ultimate burden of persuasion. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. To win his case, the plaintiff must "prove by a preponderance of the evidence that the proffered reasons were not the employer's true reasons." Sorba v. Pennsylvania Drilling Company, 821 F.2d 200, 202 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).

Saunders and CEPP argue that the evidence was insufficient to support the verdict because it was not adequate to raise an inference of age discrimination at the prima facie case stage. They also argue that the evidence is insufficient to support a jury finding that their articulated, non-discriminatory reason for the employment decision in this case is mere pretext.

A.

The defendants first challenge the sufficiency of the evidence to raise an inference of age discrimination at the prima facie case stage. Of course, after a case has been tried to a jury on the merits, "it is unnecessary for the appellate court to decide whether a prima facie case had, in fact, been established." Blum v. Witco, 829 F.2d 367, 372 n. 2 (3d Cir.1987). "Where the defendant has done everything that would be required of him if the plaintiff had made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). Rather, the appellate court must consider the ultimate...