Moorhouse v. Boeing Co.

• Decision Date: 19 February 1980
• Docket Number: Civ. A. No. 77-1584.
• Citation: 501 F. Supp. 390
• Parties: Robert W. MOORHOUSE v. The BOEING COMPANY, John Mayer, Peter Cross, and Ray Pearson.
• Court: U.S. District Court — Eastern District of Pennsylvania

501 F. Supp. 390

Robert W. MOORHOUSE v. The BOEING COMPANY, John Mayer, Peter Cross, and Ray Pearson.

Civ. A. No. 77-1584.

United States District Court, E. D. Pennsylvania.

February 19, 1980.

James H. Gorbey, Jr., Gorbey, Di Orio, Gallagher & Palma, Media, Pa., for plaintiff.

Robert M. Landis, Dechert, Price & Rhoads, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

HANNUM, District Judge.

(I) INTRODUCTION

This is an action in which plaintiff Robert W. Moorhouse (Moorhouse), a 55 year old aircraft controls design engineer, alleged that he was illegally demoted, and later laid off, by the defendant Boeing Company (Boeing). The individually named defendants, John Mayer (Mayer), Peter Cross (Cross) and Ray Pearson (Pearson) were alleged to have conspired to take the illegal action on behalf of Boeing.

The Complaint contained four counts. Count One asserted that the actions of Boeing violated the Age Discrimination In Employment Act, 29 U.S.C. §§ 621-634 (ADEA). Count Two charged that defendants Mayer, Cross and Pearson conspired to violate the ADEA. Count Three sounded in common law breach of contract, and asserted that Boeing's action in laying off plaintiff violated a "working lifetime" provision of the oral employment contract between Boeing and Moorhouse. Count Four alleged that defendants Cross and Pearson conspired to commit the breach of contract set forth in Count Three.

A jury trial commenced on June 11, 1979, and continued through June 12, 13, 18, 19, and 20. At the close of plaintiff's case, defendants moved for a directed verdict pursuant to Rule 50(a), Fed.R.Civ.P. That motion was denied. At the close of all the evidence, defendants renewed their motion for a directed verdict, and after hearing argument, the Court granted the motion as to Counts Two, Three and Four. The motion was denied as to Count One, and the ADEA claim was submitted to the jury with the following special interrogatories:

1. Was age a consideration in Boeing's decision to demote Moorhouse?

Yes _________ No ________

2. Was the consideration of age a cause of Boeing's decision to demote Moorhouse?

Yes _________ No _______

3. Was age a consideration in Boeing's decision to lay off Moorhouse?

Yes _________ No _______

4. Was the consideration of age a cause of Boeing's decision to lay off Moorhouse?

Yes __________ No __________

On June 20, 1979, the jury returned negative answers to special interrogatories 1 and 3, and judgment was accordingly entered in favor of defendant. Presently before the Court is Plaintiff's Motion For A New Trial Pursuant To Rule 59, Fed.R.Civ.P.

Plaintiff's assignments of error fall into three general categories. First, Moorhouse contends there was error in the Court's refusal to allow certain testimony by five of his witnesses. Second, plaintiff maintains that the Court erred in granting defendants' motion for a directed verdict on the contract claims asserted in Counts Three and Four. Finally, plaintiff suggests that he was prejudiced by the conduct of the trial court towards his counsel. Each contention will be considered separately below.

(II) DISCUSSION

(A) The Evidentiary Ruling.

There are presently pending five additional age discrimination cases by former employees of Boeing.¹ The actions have all been assigned to this Judge as related cases, and except for the two filed in 1979, all were consolidated for purposes of discovery. At a conference conducted March 5, 1979, a discussion occurred concerning consolidation of the cases for trial as well as for discovery. Neither a formal motion was made nor order entered, but the Court expressed the view that despite the similarity among the cases, there were nevertheless substantial enough factual distinctions surrounding each plaintiff's lay off which made it impractical to try all the cases to the same jury. This is because although Boeing is a defendant in each of the six cases, and there is some overlap among individually named defendants, many of the individually named defendants are not named in each case. Moreover, with the exception of plaintiffs Nelson and Santa Maria, who were laid off the same day as Moorhouse, different time periods are involved in each case. The confusion which would result from a joint trial is obvious from only a review of the docket sheets in the cases. Had the actions been consolidated, the trial would have involved six plaintiffs, the Boeing Company and 16 individually named defendants. The Court is convinced a jury would have faced a hopeless task of trying to discern who did and said what to whom and for what reason.

Because one allegation of the Complaint was that Boeing engaged in a "pattern or practice" of discrimination against older employees, however, Moorhouse sought to introduce the testimony of each plaintiff in the other suits at this trial. Additionally, Moorhouse sought to adduce the testimony of some of the plaintiffs concerning the adequacy of Moorhouse's work performance, the difficulty experienced by one of Moorhouse's supervisors² in dealing with subordinates, derogatory comments at Boeing about older employees generally and Moorhouse in particular, and Boeing's failure to follow its prior practice to transferring employees from one project to another rather than resorting to lay offs when the work force on a project was cut back. The plaintiff/witnesses were also expected to testify that employees who had been downgraded in job level³ performed the same work after as before the downgrade, and that "many" older employees were laid off by Boeing. With the exception of testimony concerning comments about age generally, the adequacy of Moorhouse's work performance and Boeing's transfer in lieu of lay off practice, the testimony was drawn from each plaintiff/witnesses' knowledge of the circumstances surrounding his own lay off, which ultimately led to the witnesses' suit against Boeing. When this testimony was originally proffered on direct during plaintiff's case in chief, defendants objected on the basis of Rules 401 and 403, Fed.R. Evid.

The rule 401 argument was that, to the extent testimony of each witness was about his own lay off, it was not relevant to Moorhouse's lay off. Under rule 403, defendants maintained that even if evidence of other lay offs similar to Moorhouse's was relevant to the existence of a pattern or practice of discrimination at Boeing, the prejudice resulting from permitting each witness, who is the plaintiff in his own lawsuit, to testify about the circumstances of his departure from Boeing substantially outweighed the probative value of the testimony. At that juncture of the trial, the Court agreed with defendants and the plaintiff/witnesses were excluded, primarily on the same grounds of confusion and unfair prejudice bottoming the Court's decision to not consolidate the cases for trial.

Once a plaintiff has presented a prima facie case under the ADEA, defendants have the burden of producing evidence that some legitimate business purpose, rather than age, was the reason for the allegedly discriminatory action taken. Had the Court permitted each of the proposed witnesses to testify about the circumstances surrounding his own lay off, each, in essence, would have presented a prima facie case of age discrimination. Defendants then would have been placed in the position of either presenting the justification for each witnesses' lay off, or of allowing the testimony to stand unrebutted. This latter alternative, of course, would have had an obvious prejudicial impact on the jury's consideration of Moorhouse's case.⁴ To have pursued the former option, defendants would have been forced, in effect, to try all six cases together with the attendant confusion and prejudice inherent in that situation.

Rule 403, Fed.R.Evid. states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In the Court's view, each of the factors set forth in the Rule, danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, and needless presentation of cumulative evidence, would have resulted had each plaintiff in the other cases testified about his lay off.

During his case in rebuttal, plaintiff again proffered the testimony of these witnesses, and to a limited extent they were permitted to testify. Specifically the Court stated:

THE COURT: These witnesses will be permitted to testify as respects impeachment of Mr. Sam Thomas concerning his testimony that Boeing does not offer work-lifetime employment contracts.

The next is that testimony concerning, if such there was, comments about Moorhouse's age may be relevant to reasons for Moorhouse's discharged....

One feature that does occur to me is that assuming this case is submitted to the jury, that thes sic persons, talking about Russo, Greenstein, Barker, Nelson, Santa Maria, if such were the case, were laid off, might be evidence that Boeing didn't follow the procedure they claim they did.

That, in my view, is a jury argument. N.T. at 655-56.

Moreover, in order to provide the greatest leeway possible, the Court suggested that it would rule on objections to other areas of testimony as they were presented. "Now, I can't rule in a vacuum because I do not know what the precise questions Mr. Gorbey will propound." N.T. at 656.

Thereafter, plaintiff's rebuttal consumed some 56 pages of testimony during which the following topics were covered: The existence of working lifetime employment contracts at Boeing, N.T. at 659-61, 668, 685; comments by supervisors concerning age, N.T. at 672; a purported Boeing policy geared to reducing the age level of the engineering work force, N.T. at 683; and, a brief background of each witnesses' work history at Boeing. See N.T. at 657-712...