Wildman v. Lerner Stores Corp., Nos. 84-1394

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBOWNES
Citation771 F.2d 605
Parties38 Fair Empl.Prac.Cas. 1377, 37 Empl. Prac. Dec. P 35,482, 54 USLW 2141, 54 USLW 2144 Mark WILDMAN, Plaintiff, Appellee, v. LERNER STORES CORPORATION, et al., Defendants, Appellants. Mark WILDMAN, Plaintiff, Appellant, v. LERNER STORES CORPORATION, et al., Defendants, Appellees.
Decision Date28 August 1985
Docket Number84-1463 and 84-1462,Nos. 84-1394

Page 605

771 F.2d 605
38 Fair Empl.Prac.Cas. 1377,
37 Empl. Prac. Dec. P 35,482, 54 USLW 2141,
54 USLW 2144
Mark WILDMAN, Plaintiff, Appellee,
v.
LERNER STORES CORPORATION, et al., Defendants, Appellants.
Mark WILDMAN, Plaintiff, Appellant,
v.
LERNER STORES CORPORATION, et al., Defendants, Appellees.
Nos. 84-1394, 84-1463 and 84-1462.
United States Court of Appeals,
First Circuit.
Argued June 3, 1985.
Decided Aug. 28, 1985.
Rehearing Denied in No. 84-1462
Sept. 23, 1985.

Page 607

Harvey B. Nachman, Santurce, P.R., with whom Antonio Moreda Toledo, Hato Rey, P.R., and Nachman & Fernandez-Sein, Santurce, P.R., were on brief, for Mark Wildman.

Carl A. Schwarz, Jr., and Raymond L. Vandenberg, New York City, with whom Kenneth A. Margolis, New York City, Christopher A. D'Angelo, Vicente J. Antonetti, Santurce, P.R., and Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, New York City, were on brief, for Lerner Stores Corp. and Lerner Shops Intern.

Before COFFIN, BOWNES and DAVIS, * Circuit Judges.

BOWNES, Circuit Judge.

Before us are cross-appeals from a jury verdict finding defendants liable for willfully violating the Age Discrimination In Employment Act, 29 U.S.C. Secs. 621-634 (1975 & Supp.1984) (ADEA), and also liable under two Puerto Rico statutes; the Puerto Rico Anti-Discrimination Statute, P.R.Laws Ann. tit. 29, Sec. 146 (Supp.1983) and the Puerto Rico Severance Pay Statute, P.R.Laws Ann. tit. 29, Sec. 185a (Supp.1983). The amount of damages to date of judgment was stipulated by the parties.

Defendants' appeal, which we consider first, raises four issues: whether there should have been a judgment n.o.v.; whether there should have been separate trials on the federal and Puerto Rico statutes; whether the closing argument by plaintiff's counsel deprived defendants of a fair trial; and whether the award of attorney's fees to plaintiff's counsel was excessive.

I

1. The Denial of Defendants' Motion for Judgment N.O.V.

The principles controlling our review of the denial of a motion for judgment n.o.v. are well established. We cannot determine credibility, resolve conflicting testimony, or evaluate the weight of the evidence. Judgment n.o.v. should be granted only when the evidence could lead reasonable men to but one conclusion. Fishman v. Clancy, 763 F.2d 485, 486 (1st Cir.1985); Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53, 54 (1st Cir.1984); Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir.1978). And our review of the evidence and inferences fairly drawn therefrom must be made in the light most favorable to the prevailing party. Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 732 (1st Cir.1982), cert. denied, 459 U.S. 1105, 1204, 103 S.Ct. 728, 1191, 75 L.Ed.2d 436 (1983); DeVasto v. Faherty, 658 F.2d 859, 861 (1st Cir.1981).

Page 608

We start with the undisputed facts. Plaintiff, Mark Wildman, was, without prior warning, asked to resign by the chief executive officer of Lerner Stores, Karl Margolis, in October 1981 when he was in New York City at a company merchandising meeting. At that time he was sixty-one years of age. Wildman refused to resign and, after returning to Puerto Rico, wrote a letter demanding the payment of $1,500,000 or reinstatement. He was then notified that he was fired for cause. Wildman's annual salary at the time of his discharge was $60,000. He was also entitled to certain fringe benefits, including a vested interest in the company retirement fund. Wildman was replaced with a thirty-six year old man at an annual salary of $48,000 and with smaller fringe benefits. Based on these facts, Wildman made out a prima facie case of a discharge based on age discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 688 (1973); Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979). The liability issue was whether plaintiff was discharged because of his age or "some legitimate, nondiscriminatory reason." McDonnell Douglas 411 U.S. at 802, 93 S.Ct. at 1824.

Plaintiff's evidence can be summarized as follows. He opened the first Lerner store in Puerto Rico in August 1959. Under his aegis, the number of stores grew to twenty-six in 1981. In 1973, he was appointed vice-president in charge of the Carribbean region (Puerto Rico and St. Thomas) and continued in that capacity until his discharge. According to plaintiff's testimony, exhibits he introduced and the testimony of witnesses Friedman, Dasz Castrillo, and Sanchez, the Puerto Rico stores were profitable and well managed. In 1978, policy changes were made by defendants. The man who helped start the company, Harold Lane, Sr., and his son were forced to retire. At least eight elderly executives were asked to resign or were fired because of their age. After the retirement of Lane, Sr., Karl Margolis became chairman of the board and chief executive officer of Lerner Stores. Margolis repeatedly, at least three or four times a year, asked Wildman when he was going to resign and reminded him that he was not getting any younger. Wildman finally told Margolis that he would retire when Margolis did. Margolis told Wildman, "as long as I'm here you will have a job, I promise you that."

Defendants' articulated nondiscriminatory reason for discharging plaintiff was that he did not promptly fire an employee, Loida Marti, who had invested $10,000 in a store that Margolis felt was in direct competition with Lerner. Marti was the principal buyer for the Lerner Puerto Rico stores. There is no question that she owned an interest in a store that sold essentially the same type of merchandise as did the Lerner Stores. There was testimony from which it could be found that the merchandise was cheaper and of inferior quality than that sold by Lerner. The store was located in the same shopping area as a Lerner Store, about a ten minute walk away. The testimony was conflicting as to whether the store was in competition with the Lerner Store. Wildman learned of Marti's interest in the store in May or June of 1981. He told her that she had to get her investment back as soon as possible and that if she worked in the store she would be fired immediately. Marti immediately tried to get her $10,000 back, but was unable to do so because the money was not available. She kept trying and Wildman also approached the other owners in an effort to get Marti's investment returned to her. Although Wildman felt that Marti's investment in the store was "wrong," he did not fire her because she was a hardworking employee, an excellent buyer ("born to be a buyer"), had three children, and was a wonderful mother. Margolis learned of Marti's interest in the store in late October of 1981 when she and Wildman were in New York at a Lerner merchandising meeting. He promptly fired Marti and demanded Wildman's resignation.

Although not pressed on appeal, defendants adduced testimony at the trial that Wildman's performance as vice-president in

Page 609

charge of Puerto Rico operations left a lot to be desired.

Considering the evidence in the light most favorable to the plaintiff, we can only conclude that defendants' motion for judgment n.o.v. was properly denied. The jury had ample grounds for finding that Wildman was willfully discharged because of his age and the proferred reason--Marti's store investment--was only a pretext. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26; Loeb, 600 F.2d at 1014.

2. Trial on Both Federal and Puerto Rico Claims

Defendants urge that because of the different burdens of proof the district court abused its discretion in trying the federal and Puerto Rico claims together. Under the ADEA, the burden of proof is at all times on the plaintiff. S/he must establish a prima facie case and then, if an explanation for the discharge is offered by the employer, must prove that the explanation was not the real reason for the discharge but a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Loeb, 600 F.2d at 1014. Under the Puerto Rico Anti-Discrimination Statute, the fact of discharge at age sixty-one would put the burden on the employer to prove that the discharge was not discriminatory. Defendants have not suggested any burden of proof problem relative to the Puerto Rico Severance Statute and we see none.

We find that the district court did not abuse its discretion in trying the federal and Puerto Rico claims together. The liability issue was the same under all claims: was the plaintiff discharged because of his age or his failure to fire Loida Marti when he learned of her interest in the other store. The district court carefully and correctly explained the burden of proof applicable to the statutes and written interrogatories were submitted to the jury for findings on each of the three statutes. We think that the instructions, to which there were no objections, were sufficient to enable the jury to cope with the different burdens of proof and apply them correctly. Criminal conspiracy cases with a large number of defendants and issues far more complex than those involved here are routinely submitted to juries. Moreover, if the jury found a violation of the ADEA, violations of the Puerto Rico statutes would necessarily follow. And, as already explained, there was sufficient evidence for the jury finding that defendants' discharge of plaintiff violated the ADEA.

3. The Closing Argument of Plaintiff's Counsel

Defendants argue that they were denied a fair trial because, in his closing argument, plaintiff's counsel misled the jury on the burden of proof and distorted the testimony. This issue is foreclosed, however, by defense counsel's failure to object at the time the allegedly improper statements were made or move for a mistrial before the verdict was returned. Counsel cannot play a waiting game and after an adverse verdict is rendered raise an objection to argument for the first time. Computer Systems Engineering,...

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151 practice notes
  • International Woodworkers of America, AFL-CIO and its Local No. 5-376 v. Champion Intern. Corp., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1986
    ...supra note 5 (collecting cases in addition to those cited here). 16 707 F.2d 636, 637 (1st Cir.1983). Cf. Wildman v. Lerner Stores Corp., 771 F.2d 605, 612, 614 (1st 17 558 F.2d 97, 100 (2d Cir.1977), rev'd on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979). 18 619 F.2d 27......
  • McCullough v. Cady, Civ. No. 82-74264.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • July 30, 1986
    ...in § 1988 fee petitions. Institutionalized Juveniles v. Sec. of Pub. Wel., 758 F.2d 897 (3rd Cir.1985); Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st Cir.1985); LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985); Craik v. Minnesota State University Board, 738 F.2d 348 (8th Cir.1984) all app......
  • Amico v. New Castle County, Civ. A. No. 82-513 CMW.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 11, 1987
    ...risk neutral or risk preferring. See Nonpayment Risk Multipliers, 53 U.Chi.L.Rev. at 1084 n. 63. See also Wildman v. Lerner Stores Corp., 771 F.2d 605, 612-613 (1st Cir.1985) (criticizing Judge Poser's analysis for failing to consider how relatively modest multipliers have been, i.e., a mul......
  • Orshan v. Macchiarola, No. 79 CV 309 (ERN).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 28, 1986
    ...pro and con concerning multipliers to reflect the contingent nature of a civil rights suit are set out in Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st Cir.1985) and McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984). Although this issue was expressly left open in Blum, supra, 104......
  • Request a trial to view additional results
151 cases
  • International Woodworkers of America, AFL-CIO and its Local No. 5-376 v. Champion Intern. Corp., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1986
    ...supra note 5 (collecting cases in addition to those cited here). 16 707 F.2d 636, 637 (1st Cir.1983). Cf. Wildman v. Lerner Stores Corp., 771 F.2d 605, 612, 614 (1st 17 558 F.2d 97, 100 (2d Cir.1977), rev'd on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979). 18 619 F.2d 27......
  • McCullough v. Cady, Civ. No. 82-74264.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • July 30, 1986
    ...in § 1988 fee petitions. Institutionalized Juveniles v. Sec. of Pub. Wel., 758 F.2d 897 (3rd Cir.1985); Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st Cir.1985); LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985); Craik v. Minnesota State University Board, 738 F.2d 348 (8th Cir.1984) all app......
  • Amico v. New Castle County, Civ. A. No. 82-513 CMW.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 11, 1987
    ...risk neutral or risk preferring. See Nonpayment Risk Multipliers, 53 U.Chi.L.Rev. at 1084 n. 63. See also Wildman v. Lerner Stores Corp., 771 F.2d 605, 612-613 (1st Cir.1985) (criticizing Judge Poser's analysis for failing to consider how relatively modest multipliers have been, i.e., a mul......
  • Orshan v. Macchiarola, No. 79 CV 309 (ERN).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 28, 1986
    ...pro and con concerning multipliers to reflect the contingent nature of a civil rights suit are set out in Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st Cir.1985) and McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984). Although this issue was expressly left open in Blum, supra, 104......
  • Request a trial to view additional results

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