Ostrowski v. Atlantic Mut. Ins. Companies

• Decision Date: 19 June 1992
• Docket Number: No. 678,D,678
• Citation: 968 F.2d 171
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1131, 59 Empl. Prac. Dec. P 41,613, 61 USLW 2008 James P. OSTROWSKI, Plaintiff-Appellant, v. ATLANTIC MUTUAL INSURANCE COMPANIES, Defendant-Appellee. ocket 91-7674.
• Court: U.S. Court of Appeals — Second Circuit

Page 171

968 F.2d 171

59 Fair Empl.Prac.Cas. (BNA) 1131,

59 Empl. Prac. Dec. P 41,613, 61 USLW 2008

James P. OSTROWSKI, Plaintiff-Appellant, v. ATLANTIC MUTUAL INSURANCE COMPANIES, Defendant-Appellee.

No. 678, Docket 91-7674.

United States Court of Appeals, Second Circuit.

Argued Dec. 16, 1991.

Decided June 19, 1992.

Debra L. Raskin, New York City (Stuart L. Lichten, Michael B. Ranis, Vladeck, Waldman, Elias & Engelhard, P.C., on the brief), for plaintiff-appellant.

Richard H. Block, New York City (Lisa Rosenthal, Elizabeth A. Barasch, Steven J. Feinstein, Stroock & Stroock & Lavan, on the brief), for defendant-appellee.

Before MESKILL, KEARSE, and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff James P. Ostrowski appeals from so much of a final judgment entered in the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, as dismissed, following a jury verdict in favor of defendant Atlantic Mutual Insurance Companies ("Atlantic" or "Atlantic Mutual"), his claim under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (1988) ("ADEA"). On appeal, Ostrowski raises several challenges to the district court's instructions to the jury, including his contention that the court erroneously failed to give a burden-shifting charge in accordance with Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). We agree that the district court should have given such a charge, and we accordingly vacate the judgment and remand for a new trial.

I. BACKGROUND

In January 1981, Atlantic hired Ostrowski as claims manager at its New York City office ("NYC office"). In 1983, Ostrowski was also made an officer of the company, with the title Secretary of Claims. As both claims manager and Secretary of Claims, Ostrowski had responsibility for, inter alia, supervising the investigation, processing, and payment of insurance claims at the NYC office. In his capacity as manager, Ostrowski reported to Atlantic's Secretary of Field Administration with respect to administrative matters concerning the NYC office. In his capacity as an officer, Ostrowski reported to Richard M. Pennington, Atlantic's Senior Vice President of Claims. Pennington was responsible for evaluating Ostrowski's overall performance and conducting his salary reviews.

Ostrowski served as claims manager and Secretary of Claims until April 1989, when his employment with Atlantic was involuntarily terminated. In the present action, he sought to prove that though prior to 1987 he had consistently received favorable performance evaluations from Pennington, when Ostrowski began hiring and promoting middle-aged and older persons protected by the ADEA, see 29 U.S.C. §§ 621, 623, 631 (generally prohibiting employment discrimination against persons age 40 or older on the basis of age), Pennington became highly critical and eventually had him fired principally in retaliation for hiring and promoting such persons. Ostrowski also claimed that there had been retaliation against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988) ("Title VII"), because of his hiring and promotion of minorities and women; he has not pursued the Title VII claims on appeal.

A. The Evidence at Trial

At trial, Ostrowski presented evidence that until 1987, reviews rated his performance as excellent. In late 1984, Pennington wrote, "Mr. Ostrowski is doing an excellent job overall in his current assignment." In late 1985, Pennington wrote, "Mr. Ostrowski has completed his objectives well and is becoming an effective manager of people.... [I]t has to be said that the New York claims operation has never been better, a major contribution to the overall Atlantic results." In late 1986, Pennington wrote that Ostrowski "has met expectations ... by once again demonstrating his exceptional organizational and leadership abilities."

Ostrowski's other supervisor from September 1986 to November 1988 was Thomas Silika, who was then Atlantic's Secretary In 1987, Ostrowski began to receive poor reviews from Pennington, and he offered evidence that they were in retaliation for his hiring and promotion of older Atlantic employees. In 1987, Ostrowski hired Dominic Tringali, an attorney in his 60's, as a senior claims adjuster. Ostrowski testified that Pennington, after meeting Tringali, criticized Ostrowski, stating "[T]hat's not the type of person that we want to hire.... [T]hat guy should have retired years ago." (Id. at 125.) Notwithstanding this criticism, in the summer of 1988 Ostrowski hired Lionel DaCosta, who also was in his 60's. Ostrowski testified that Pennington's immediate reaction after meeting DaCosta was that "DaCosta is not Atlantic type material" and that he "should have stayed retired." (Id. at 139-40.)

                of Field Administration.   Prior to 1983, Silika had worked for another insurance company at which Ostrowski had been his supervisor.   Silika described Ostrowski as a demanding but fair and professional worker and an excellent administrator who strove for excellence and instilled in others the desire to excel.   Based on his experience both in supervising Ostrowski at Atlantic and observing Ostrowski supervise others, including himself previously, Silika testified that "Ostrowski ha[d] always had, in [Silika's] opinion, a good relationship with his staff."  (Trial Transcript ("Tr.") 314.)
                

Silika, the other Atlantic officer to whom Ostrowski reported, testified that in the late summer of 1988, Pennington convened a lunch meeting attended by Pennington, Silika, and Klaus Dorfi, who was Atlantic's Executive Vice President of Insurance Operations and Pennington's immediate supervisor. At that meeting, Pennington told Silika and Dorfi that Pennington "wanted to fire Mr. Ostrowski because of the hiring of Lionel DaCosta and Dominic Tringali." (Id. at 303.) Silika testified that Pennington had pointed out that "Tringali ... was 60 years old," and had stated that DaCosta "was 60 years old and that he doesn't have any future for him and that there is no way he can contribute." (Id. at 304-05.) Pennington had noted that "there are no young, upcoming, promotable people in [the NYC office] because of Mr. Ostrowski's hiring practices," to which Dorfi responded, "Yes." (Id. at 305.) Dorfi did not agree at that lunch, however, that Ostrowski should be fired.

In November 1988, on Pennington's recommendation, Atlantic placed Ostrowski on six month's probation. In late February 1989, while on probation, Ostrowski rated Erika Krotman, an Atlantic employee, as "superior." Ostrowski testified that Pennington criticized this evaluation, stating, "Erika is 64 years old.... I can't see how she can be superior." (Id. at 147-48.)

In early April 1989, before the end of the probationary period, on Pennington's recommendation, Ostrowski was fired. Ostrowski contended that Pennington's recommendations were motivated by his antipathy toward older employees and toward Ostrowski for hiring and promoting such employees; he argued that Pennington's recommendations were, within the company, determinative.

In defense, Atlantic presented memoranda and testimony in order to show that its decision to fire Ostrowski had been based on his performance other than his personnel decisions with respect to older employees. It argued that no adverse employment action had been taken against any of the older employees hired or promoted by Ostrowski, and it contended that Ostrowski's performance had deteriorated significantly in 1987. During the fall of that year, a Quality Control Review ("QCR"), a process that evaluated the quality of claims handling in a given office, had been performed at the NYC office. As to portions of the QCR for the NYC office that were somewhat critical of claims handling, Ostrowski made intemperate comments on a number of the review sheets, criticizing the review process itself. Pennington testified that Atlantic officers viewed Ostrowski's comments as unprofessional and as indicative of a lack of teamwork and an inability to accept criticism.

Atlantic also contended that during this period other problems with Ostrowski's management style emerged, including excessive In the summer of 1988, Ostrowski was involved in a controversy with his superiors as to whether a certain claim (the "Feldman claim") should be paid. Ostrowski found a number of difficulties and resisted its prompt settlement. Pennington testified that he and others believed that Ostrowski had mishandled the claim and determined that it should be settled. Ostrowski was directed to issue a check to the claimant, but he refused, taking the position that settlement was unjustifiable. Dorfi testified that Atlantic's senior management considered Ostrowski's refusal to sign the check to be so serious an act of insubordination that he discussed with Pennington and Atlantic's president whether Ostrowski should be fired at that time.

                use of independent adjusters and poor relationships with other employees.   In Ostrowski's 1987 evaluation, Pennington wrote, "Mr. Ostrowski has performed at a level which is less than expected and has verged on unsatisfactory....  In the past, Mr. Ostrowski has been viewed as having potential for greater responsibility.   That potential is now in doubt."
                

When Atlantic placed Ostrowski on probation in November 1988, Pennington's memorandum to him stated that that action was being taken because of deficiencies in Ostrowski's management style, his mishandling of the Feldman claim, and his "initial response to the 1987 QCR." When, during the probationary period, Pennington determined that Ostrowski's performance had not improved, Ostrowski was fired. Dorfi and Shirley Grill, Atlantic's Vice President of Human Resources, testified that although Pennington had recommended both the probation and the firing, Dorfi and Grill, along with Atlantic's president and chairman, had conducted their own...