Paolitto v. John Brown E. & C., Inc.

• Decision Date: 17 July 1998
• Docket Number: Nos. 97-7477,97-7483,s. 97-7477
• Citation: 151 F.3d 60
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1351, 74 Empl. Prac. Dec. P 45,573 Anthony W. PAOLITTO, Plaintiff-Appellee-Cross-Appellant, v. JOHN BROWN E.&C., INC., and Crawford & Russell, Inc., Defendants-Appellants-Cross-Appellees.

Page 60

151 F.3d 60

77 Fair Empl.Prac.Cas. (BNA) 1351,

74 Empl. Prac. Dec. P 45,573

Anthony W. PAOLITTO, Plaintiff-Appellee-Cross-Appellant, v. JOHN BROWN E.&C., INC., and Crawford & Russell, Inc. Defendants-Appellants-Cross-Appellees.

Nos. 97-7477, 97-7483.

United States Court of Appeals Second Circuit.

Argued Feb. 23, 1998.

Decided July 17, 1998.

David S. Golub, Silver Golub & Teitell, Stamford, Connecticut (Jonathan M. Levine, of counsel), for Plaintiff-Appellee-Cross-Appellant.

Mark L. Zaken, Cummings & Lockwood, Stamford, Connecticut (Stephanie E. Lane, of counsel), for Defendants-Appellants-Cross-Appellees.

Before: WINTER, Chief Judge, PARKER, Circuit Judge, and SCHWARZER, ^* District Judge.

WINTER, Chief Judge.

This appeal and cross-appeal arise from a complaint alleging that Anthony Paolitto was unlawfully denied a promotion to the position of Chief Structural Engineer by John Brown E.&C., Inc. ("Brown"). Paolitto claims that the denial was illegal because it was: (i) based on his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); (ii) in breach of a 1981 oral contract; and (iii) in retaliation for his filing an administrative claim with the Connecticut Commission on Human Rights and Opportunities ("CHRO"), also in violation of the ADEA. A jury returned a verdict in favor of Paolitto on all three claims and awarded compensatory damages in the following amounts: $100,000 for discriminatory failure to promote, $100,000 for breach of contract, and $29,000 for retaliation. The jury also found that Brown had acted willfully, thus entitling Paolitto to liquidated damages on the first and third claims in amounts equal to the jury's compensatory damage awards. See 29 U.S.C. §§ 626(b), 216(b). Judge Goettel ruled that each of the three claims asserted an alternate theory of liability that would support only a single damage award. He then entered judgment based on the ADEA failure-to-promote claim because it would maximize the return to Paolitto. Accordingly, Paolitto was awarded $200,000--$100,000 for compensatory damages and $100,000 for liquidated damages--plus $60,000 in prejudgment interest. Both parties appeal.

Brown contends that Judge Goettel erred by excluding from evidence the findings and investigative file of the CHRO--the state equivalent of the EEOC--which concluded that Paolitto's evidence of age discrimination was insufficient. Brown contends further that the compensatory damage award on Paolitto's ADEA failure-to-promote claim was excessive. Paolitto argues that, although the compensatory damage awards on his first and third claims do overlap entirely, he should have received liquidated damages on both claims. Paolitto also asserts that he is entitled either to an appointment to the position of Chief Structural Engineer or to an award of front pay. For the reasons that follow, we affirm.

BACKGROUND

Paolitto was hired in 1971 as a design engineer by Crawford & Russell, Brown's predecessor company. ¹ In 1981, Paolitto was offered a job at a rival engineering company. He was allegedly persuaded to stay with Brown only after being promoted to Assistant Chief Structural Engineer and receiving a promise from the then-Chief Structural Agranoff died in 1985, and Paolitto was passed over for the position of Chief in favor of Neil Runyan. In 1987, Runyan resigned and Joseph Cozza, who had become the Vice President of Engineering in January 1987, began discussing Runyan's potential successor with department heads and project managers. Ultimately, Cozza hired Robert Coleman, who was then 37 years old. Paolitto was 57. Cozza articulated three reasons for hiring Coleman over Paolitto: (i) Paolitto had a history of using excessive overtime in the jobs he supervised; (ii) he had poor interpersonal skills; and (iii) he did not have a Professional Engineers' License.

Engineer, Leo Agranoff, that Paolitto would succeed him as Chief when Agranoff retired. ²

Paolitto filed an administrative charge of age discrimination with the CHRO. In January 1989, the CHRO dismissed Paolitto's charge for lack of sufficient evidence of age discrimination. Paolitto claims that, after he filed his charge with the CHRO, Brown gave him only insignificant assignments that curtailed his professional development. This suit followed.

Paolitto's amended complaint contained three claims: (i) that Brown violated the ADEA by failing to promote Paolitto because of his age to the position of Chief Structural Engineer; (ii) that Brown's failure to promote him breached the oral contract between Paolitto and Agranoff; and (iii) that Brown retaliated against him, in violation of the ADEA, for filing an administrative charge with the CHRO.

At trial, Paolitto offered evidence showing that, by virtue of his experience, job appraisals, and responsibility, he was more qualified than Coleman for the position of Chief Structural Engineer. He also offered evidence that the bases articulated by Cozza for passing over Paolitto in 1987 were either false or irrelevant. This evidence was sufficient to allow a jury to conclude that Brown violated the ADEA by failing to promote Paolitto and by retaliating against him. The issues on appeal and cross-appeal involve the exclusion of the CHRO findings and investigative file and the denial of various post-trial motions. The facts relevant to these issues follow.

A. Exclusion of CHRO Findings

In support of his age-discrimination claim, Paolitto introduced evidence indicating that Cozza had a pattern of appointing young workers to senior management positions. Specifically, Paolitto provided a chart showing the ages of the six persons appointed by Cozza to senior management positions between 1987 and 1989. The average age of such appointees was 46.3, but the chart noted that the "[a]verage age of promotions/appointments before Paolitto['s] age discrimination complaint"--i.e., his CHRO filing--was 39.6. This notation and Paolitto's accompanying examination of Cozza were aimed at revealing that Cozza's post-CHRO-filing appointments--with an average age of 53--were an attempt to cover up Cozza's prior discriminatory practices in the face of Paolitto's age-discrimination charge. In response, Brown sought to introduce the CHRO finding--which Judge Goettel had previously ruled inadmissible--to show that the CHRO charge had been dismissed in Brown's favor before Cozza made any of the post-filing appointments. Judge Goettel refused to admit the CHRO finding but allowed Cozza to testify that there was "no agency complaint pending at the time" when he made the later appointment decisions. On Paolitto's redirect examination, Cozza testified that "when the [CHRO] dismissed this case I thought it was over. I had no reason to think it would go any further." At this point, Paolitto's counsel began questioning Cozza about the nature and quality of the CHRO investigation. Brown again sought to admit the CHRO findings, arguing again that Paolitto had "opened the door." Once more, Judge Goettel refused to admit the evidence, but allowed Brown to elicit from Cozza information about the testimony provided to the CHRO investigator.

B. Verdict and Post-trial Rulings

The jury returned a verdict in favor of Paolitto on all three claims and further found that Brown had acted willfully, thus entitling Paolitto to liquidated damages under the ADEA. As noted, the jury awarded Paolitto $100,000 in compensatory damages on his failure-to-promote claim and $29,000 in compensatory damages on his retaliation claim. Judge Goettel ruled that, because Paolitto's damages for the latter claim were subsumed within his damages for the former, he was entitled to compensatory damages only on his failure-to-promote claim, the claim that produced the largest damage award. Because Brown had acted willfully, Judge Goettel awarded Paolitto an additional $100,000 in liquidated damages, for a total amount of $200,000. See 29 U.S.C. §§ 626(b), 216(b).

Both parties filed post-trial motions. Brown moved for a new trial on damages or, alternatively, for a remittitur, contending that the verdict was not supported by the evidence. Judge Goettel denied the motion. Paolitto, who was terminated by Brown in 1993, moved for an order directing his appointment to the position of Chief Structural Engineer and/or "monetary relief in lieu of such appointment." Judge Goettel denied Paolitto's motion because he had not alleged that his 1993 termination was discriminatory and because he had waited until essentially the eve of trial before raising the issue of post-termination relief. Paolitto also moved for an order making clear that, although he was entitled to compensatory damages only on his failure-to-promote claim, he was entitled to liquidated damages on both that claim and his retaliation claim. Judge Goettel denied that motion, reasoning that the ADEA's liquidated-damages provision precludes an award of liquidated damages that exceeds a plaintiff's compensatory damages.

DISCUSSION

A. Brown's Appeal

Brown claims that Judge Goettel erred by refusing to admit the CHRO findings and investigative file and that the jury's damage award was excessive. We address these arguments in turn.

1. Exclusion of CHRO Finding

Brown argues first that findings of the EEOC or equivalent state agencies must, as a matter of law, be admitted in subsequent trials. We disagree. "[U]nless the sources of information or other circumstances indicate lack of trustworthiness," Fed.R.Evid. 803(8)(C), such findings fall within the "public records" exception to the hearsay rule, see id. ("factual findings resulting from an investigation made pursuant to authority granted by law"); Chandler v. Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Generally, however, the fact that evidence is within an exception to the hearsay rule does not by itself make it admissible per se. The district court generally has discretion to...