Cummings v. Standard Register Co

• Decision Date: 04 June 2001
• Docket Number: No. 00-2395,No. 00-2394,00-2394,00-2395
• Citation: 265 F.3d 56
• Parties: (1st Cir. 2001) PAUL CUMMINGS, Plaintiff, Appellee, v. THE STANDARD REGISTER COMPANY, Defendant, Appellant. PAUL CUMMINGS, Plaintiff, Appellant, v. THE STANDARD REGISTER COMPANY, Defendant, Appellee. & Heard
• Court: U.S. Court of Appeals — First Circuit

Page 56

265 F.3d 56 (1st Cir. 2001)

PAUL CUMMINGS, Plaintiff, Appellee, v. THE STANDARD REGISTER COMPANY, Defendant, Appellant.

PAUL CUMMINGS, Plaintiff, Appellant, v. THE STANDARD REGISTER COMPANY, Defendant, Appellee.

No. 00-2394 & No. 00-2395

United States Court of Appeals For the First Circuit

Heard June 4, 2001

Decided September 14, 2001

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Lisa J. Damon, with whom Julie C. McCarthy, Barbara Andrade and Seyfarth Shaw, were on brief, for appellant.

Mark D. Stern, with whom Mark D. Stern, P.C., Floyd H. Anderson, Campo Anderson, LLP and Joanne Fray, were on brief, for appellee.

Before Torruella, Selya and Lynch, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff-appellee-cross-appellant Paul Cummings brought this suit in Massachusetts Superior Court, alleging that defendant-appellant-cross-appellee Standard Register, Co. discriminated against him on the basis of age in violation of Mass. Gen. Laws ch. 151B, § 4. Standard Register removed the case to the federal district court for the district of Massachusetts and, after a ten-day trial, a jury found in favor of Cummings and awarded him $990,000 in combined front pay, back pay, and emotional distress damages. The district court doubled the front and back pay awards and denied Standard Register's motions for judgment as a matter of law, a new trial, or remittitur. On appeal, Standard Register challenges the court's admission of three witnesses' testimony and its refusal to remit the front pay award. Cummings cross-appeals, seeking pre-judgment interest on the jury's award as well as attorney's fees. We affirm in part and reverse in part.

BACKGROUND

We highlight from the voluminous record the following facts relevant to these appeals.

Standard Register provides document management systems and services to companies within the health care, financial, and general business markets. On January 1, 1998, Standard Register acquired its competitor, UARCO, where Cummings, at the time forty-nine years old, had worked for seventeen years as a National Account Director (NAD) in health care sales for the northeastern United States. This area included all of New England, New York, New Jersey and the Philadelphia metropolitan area.

Standard Register had a similar position to Cummings' called a National Account Manager (NAM). For the northeast region, Standard Register assigned two NAMs: Pamela Pedler, age thirty-one, covered New England and the New York metropolitan area, and Timothy Gabb, age forty-nine, covered the "Mideast" area, which extended westward from Pennsylvania into Ohio. As a result of the merger, Standard Register had an overlapping sales force in the northeast, with Pedler, Gabb, and Cummings covering some of the same regions. Standard Register directed Ted Stark, the head of Standard Register's National Healthcare Accounts, to integrate the sales force and eliminate overlapping sales areas.

To do this, Stark decided to divide the New England/New York metropolitan area into two different regions. In filling the positions, Stark reassigned Gabb to the New York metropolitan area, and reduced Pedler's sales region to the New England area. Stark then hired 30-year old Jed Cavadas, a former UARCO employee, to represent the firm in the Mideast area. Cummings was not offered a position. Stark advised Cummings to contact two regional sales managers for other sales openings, but both managers told Cummings that they had none available. Cummings' employment thus ended.

On December 30, 1998, Cummings brought an action in Massachusetts Superior Court, alleging that Standard Register had terminated his employment on account of his age.¹ According to Cummings, Stark informed him that he was being terminated because he did not fit Standard Register's model of someone "young, handsome, aggressive, a little arrogant, and just like Jed Cavadas." Cummings also alleged that the six different, non-discriminatory reasons offered by Standard Register at various times were pretexts for age animus. Standard Register removed the case to federal court based on diversity jurisdiction, 28 U.S.C. § 1332, on February 16, 1999.

During discovery, Cummings and Standard Register sought to reach informal and formal agreements concerning the production of documents and taking of depositions. On March 3, 1999, Cummings made an informal request for the production of the personnel files of Pedler, Gaab, and Cavadas. Cummings served a formal request for these same documents on April 2, 1999. On April 26, Standard Register agreed to produce the documents on the condition that they be viewed only by Cummings' attorney and his staff. Cummings filed an "emergency motion" to compel production of the documents without the stipulation on April 28, 1999, five days before Standard Register's response to the formal request was officially due. Included in the motion was a request for attorney's fees for expenses incurred in filing the emergency motion. The magistrate judge granted the emergency motion but denied the request for attorney's fees because the motion had been filed prior to the expiration of the thirty day time period in which Standard Register's response was due. Cummings filed a motion to reconsider which was denied by the district court on October 25, 1999.

Trial commenced on January 10, 2000. In presenting his case, Cummings offered the deposition testimony of two former Standard Register employees, John Weatherly and J. Michael Talley, who believed that they also were victims of age discrimination. Weatherly, who worked as a field engineer in Nashville, Tennessee stated that beginning in 1996, his boss, Gabe Perkins, indicated that he would be terminating Weatherly because he and other employees were "too old to do the job" and because "the older guys and guys like [him] just [didn't] have the stamina to . . . keep up with this." Weatherly also testified that Perkins' age-related comments to him and others "[were] like a broken record about these men." Talley worked as a sales representative in Seattle, Washington from 1984 to 1998. Talley testified that his supervisor, Rick Campbell, repeatedly told him that Standard Register needed to make room for "young blood." Talley also stated that after he was replaced by a younger employee, he filed an age discrimination complaint with the EEOC, which was removed to federal court and ultimately settled.

Cummings also introduced live testimony from his economic expert, Martin Duffy. Duffy testified to Cummings' future losses as a result of being terminated by Standard Register.² To calculate this, Duffy used Cummings' 1997 UARCO salary and bonus, which totaled $88,120, as a base salary. Using the average earnings increases cited by the Bureau of Labor Statistics (BLS) for salaried workers in the U.S. economy, Duffy increased Cummings' 1997 base salary by 3.9% per year to estimate his future salary. Estimating that Cummings would retire at age 63.83, adding in the value of future fringe benefits, and subtracting the income and benefits Cummings would earn if he continued at his (then) current employment, Duffy arrived at a total estimate for future front pay losses. On direct examination, Duffy testified that he estimated that, in 1999, Cummings would have earned $95,128 if he had stayed at Standard Register, and, in 2000, $109,824. He further testified that, based on his various assumptions, Cummings's future losses would total $656,867. This $656,000 figure was the expert's first front pay figure. However, he later withdrew it as being in error.

After being cross-examined, Duffy realized that either he or his software had made a mathematical error in applying the estimated 3.9% annual salary increases, resulting in inflated salary estimates for 1999 and all subsequent years. After the court recessed for the evening, Duffy performed new calculations. Continuing on cross-examination on the following day, Duffy revised his estimate downward. To further complicate the matter, neither on cross-examination nor on re-direct did Duffy explicitly state the corrected front pay estimate. Instead, he gave a corrected figure for total losses (past and future), which was $162,155 less than his initial estimate for total losses. Because the mathematical error did not affect the past losses figure, the corrected estimate for future losses would be $494,712. And so, the expert's final front pay figure was the $494,000 figure.

Duffy also conceded on cross-examination that he had not used data specific to Standard Register, such as its average retirement age and its caps on compensation nor considered the nature of the health care market in reaching his calculations. In addition, he stated that rather than using the mean of Cummings' earnings over the past five years as a base, he used Cummings' salary in 1997, a higher-than-average earnings year. Following Duffy's testimony, Standard Register made a motion to strike the expert evidence, which the district court denied.

Duffy's expert report was not introduced into evidence, nor was the posterboard he used during testimony to explain his calculations given to the jury. The jurors did not request a transcript of his testimony. They had only their own hand-written notes and memories of his testimony to guide them in arriving at a damages award.

On January 24, 2000, the jury returned a verdict in favor of Cummings and awarded him $665,000 in front pay, $150,000 in back pay, and $175,000 in emotional distress damages. The district court struck the emotional distress damage award because it was not included in Cummings' complaint and, pursuant to Mass. Gen. Laws ch. 151B, § 9, doubled the front and back pay awards for a total award of $1.63 million. Cummings v. Standard Register, No. 99-10368-RWZ, at 8-10, 17-18 (D....