Bhaya v. Westinghouse Elec. Corp.

• Decision Date: 30 November 1987
• Docket Number: No. 87-1026,87-1026
• Citation: 832 F.2d 258
• Parties: 45 Fair Empl.Prac.Cas. 212, 45 Empl. Prac. Dec. P 37,620 BHAYA, Lal R. and Carner, Richard and Haessler, William J. and Parzick, Henry A. and Williams, Earle, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

Page 258

832 F.2d 258

45 Fair Empl.Prac.Cas. 212,

45 Empl. Prac. Dec. P 37,620

BHAYA, Lal R. and Carner, Richard and Haessler, William J and Parzick, Henry A. and Williams, Earle, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION.

No. 87-1026.

United States Court of Appeals Third Circuit.

Argued Aug. 4, 1987.

Decided Nov. 2, 1987.

Rehearing and Rehearing En Banc Denied Nov. 30, 1987.

Alan B. Epstein (argued), Kirschner, Walters & Willig, Philadelphia, Pa., for appellants.

Dona S. Kahn (argued), Harris and Kahn, Philadelphia, Pa., for appellee.

Before SEITZ, MANSMANN and GREENBERG, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This is an appeal from the district court's entry of judgment for the defendant employer under Fed.R.Civ.P. 50(b) notwithstanding the jury verdict for the plaintiffs in this action under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. We have jurisdiction under 28 U.S.C. Sec. 1291 to review the final order of the district court. When deciding a motion for judgment notwithstanding the verdict, the trial judge must determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict. Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253 (3d Cir.1986). Our review of the application of this standard is plenary. Id. We find that the district court erred in failing to afford the plaintiffs the benefit of all reasonable inferences to be drawn from the evidence. Consequently we will vacate the order of the district court and remand for reinstatement of the jury verdict in favor of the plaintiffs.

I.

The plaintiffs are five engineers who were laid off or retired on December 17, 1982 when the defendant Westinghouse Corporation eliminated the job progression of Negotiation Engineer. The plaintiffs were the only employees in that job progression and, at the time of their terminations, they ranged in age from 54 to 62 and had between 16 and 39 years of service with Westinghouse. ¹ The parties agree that economic conditions necessitated a reduction in force. They also agree that, under the collective bargaining agreement which governs their relationship, the plaintiffs were not eligible to "bump" employees in other job progressions.

The plaintiffs filed this action claiming that, in effectuating the necessary force reduction, the defendants discriminated against the plaintiffs because of their age. The district court had subject matter jurisdiction under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq., ("ADEA").

The plaintiffs claimed that the defendants eliminated the plaintiffs' job progression because the engineers in that category were older than engineers in two other salaried job progressions--namely "Availability Assurance Engineer" and "Applications Engineer"--which were not eliminated. The plaintiffs claimed that their duties were assumed by Availability Assurance Engineers and Applications Engineers, and that they are qualified to do the work performed by Availability Assurance Engineers and Applications Engineers. The plaintiffs asserted that the defendants could have maintained an adequate workforce by laying off engineers in all three progressions according to their seniority and transferring the duties of the other classifications to the older and more senior Negotiations Engineers. The plaintiffs' theory of recovery was that the jury could logically infer, from the defendant's failure to pursue this course of action, that age was a factor in the defendant's decision to eliminate the plaintiffs' job progression.

At the close of the evidence, the defendants moved for a directed verdict. The motion was denied. The jury was instructed that it might find for the plaintiffs under the ADEA only if age was a determining factor in Westinghouse's selection of the job classification of negotiations engineer for elimination. When the jury returned a verdict for the plaintiffs, the defendants moved for a judgment n.o.v., because of the asserted insufficiency of the evidence or, in the alternative, for a new trial because of asserted trial errors. ² Judgment n.o.v. was granted by the district court. Consequently, no action was taken on the Motion for a New Trial.

II.

A plaintiff may recover under the ADEA only if he proves by a preponderance of the evidence that age was a determining factor in the employer's decision. Smithers v. Bailar, 629 F.2d 892 (3d Cir.1980). He may meet this burden with direct evidence, or when no direct evidence of intent is available, the employee plaintiff may have the benefit of a presumption of the employer's discriminatory intent by first establishing a prima facie case by circumstantial evidence. "This prima facie case is easily made out: a plaintiff alleging a discriminatory layoff need show only that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably." Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983).

As in any lawsuit, if the plaintiff fails to establish his prima facie case, the defendant may persuade the district court to dismiss the action. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983) ("Aikens"). If the plaintiff successfully proves its prima facie case, the defendant has the "burden of proof at this stage to meet [plaintiff's] prima facie case of discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) ("McDonnell Douglas "). To withstand a directed verdict, the defendant must "articulate some legitimate, nondiscriminatory reason" for its action, id. at 802, 93 S.Ct. at 1824, and must introduce evidence to prove that it acted for this reason. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The burden of production then shifts back to the plaintiff, because the ultimate burden to prove discriminatory animus remains with the plaintiff. See e.g. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.) cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) ("Burdine "). The plaintiff may meet this burden either through evidence presented in his case in chief or by way of rebuttal evidence.

The defendant in this case made no attempt to persuade the district court to dismiss the action for lack of a prima facie case. Instead, the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case. Therefore, whether the plaintiff actually did so is no longer relevant. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482.

When the defendant responds to the plaintiff's proof by offering evidence of the reason for its treatment of the plaintiff, the factfinder is then in a position to decide the ultimate factual issue in the case. Id. The question facing the trier of fact at the close of the evidence in an employment discrimination case is "whether the defendant intentionally discriminated against the plaintiff." Id. "In short, the [factfinder] must decide which party's explanation of the employer's motivation it believes." Id. at 716, 103 S.Ct. at 1482.

In this case, the plaintiffs assert that their job classification was selected for elimination by the defendant because of the age of the engineers remaining in that job classification. The defendant denies discrimination based on age, asserting that a reduction in force was necessitated by economic conditions and its elimination of the job category was based on a lack of need for the services being performed by negotiation engineers. Thus the issue at trial was framed by those opposing factual contentions. See McDonnell, 411 U.S. at 801, 93 S.Ct. at 1823.

The issue on this appeal is straightforward. The jury has told us which explanation it believes, and we are bound by that finding if there is evidence of record to support it. Our only inquiry is whether, taking the record as a whole and resolving all factual disputes in favor of the plaintiffs, the evidence and justifiable inferences therefrom reasonably support the plaintiffs' explanation. We turn now to consider whether a reasonable juror could have concluded that the defendant intentionally discriminated against the plaintiffs because of their age.

III.

Each plaintiff testified that when he was laid off or retired his remaining work was transferred to a younger engineer in another job progression, and that younger engineers were retained to perform work which the plaintiffs were qualified to perform. The plaintiffs also presented expert testimony of Richard Andrulis, Ph.D., who opined that the plaintiffs were qualified to perform the remaining tasks in other job progressions and that the tasks could have been transferred without a change in plaintiffs' job description. Andrulis testified that statistical analysis had led him to the conclusion that there was "no question that age was a determining factor" in the decision to eliminate the plaintiffs' job progression.

The plaintiffs' expert testified that layoffs by seniority within each job family would have provided the defendants with a workforce capable of carrying out all tasks that were being performed at the time of the plaintiffs' termination. He testified that there was substantial financial benefit to Westinghouse in discharging older workers instead of younger ones. His statistical analysis showed that the class of engineers most dramatically affected by the layoffs in general were the Negotiation Engineers, who were substantially older as a group than the other engineering job families. Negotiation engineers, average age 48.9 years, were laid off at a...