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Benjamin v. United Merchants and Manufacturers Inc.

decided: April 19, 1989.

PETER M. BENJAMIN, MELVIN H. KLIPPER AND DAVID PERITZ, PLAINTIFFS-APPELLEES,
v.
UNITED MERCHANTS AND MANUFACTURERS, INC., DEFENDANT-APPELLANT



United Merchants and Manufacturers, Inc. appeals from a judgment of the United States District Court for the Southern District of New York (MacMahon, J.), entered on September 19, 1988, that denied its motion for judgment n.o.v. or for a new trial, after a jury found that appellant had violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, in the discharge of appellee Peter M. Benjamin. Appellant also appeals the district court's award of damages to appellee following the jury's finding of liability. Affirmed.

Before: VAN GRAAFEILAND and CARDAMONE, Circuit Judges and SWEET, District Judge*fn*

CARDAMONE, Circuit Judge:

United Merchants and Manufacturers, Inc. (United Merchants) appeals from the final judgment of the United States District Court for the Southern District of New York (MacMahon, J.), denying its motion for judgment n.o.v. or for a new trial on the question of whether it willfully violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982 & Supp. IV 1986), when it fired plaintiff-appellee Peter M. Benjamin. Plaintiff, Melvin H. Klipper, also discharged, has settled his ADEA suit with appellant, and the jury found that a third plaintiff, David Peritz, who has not appealed, had not been fired because of age discrimination.

Appellant United Merchants, the defendant in the district court, argues that the verdict was based on speculation rather than evidence--and on impermissible sympathy for a long--term employee and that it should therefore have been set aside pursuant to Fed. R. Civ. P. 50(b) or 59. United Merchants also appeals the award of liquidated and other damages following the jury's liability finding that was fixed by the district court in the amount of $336,361.56. For the reasons that follow, we affirm.

FACTS

United Merchants is a textile manufacturer. It emerged from bankruptcy in 1978, but like much of the American textile industry in the early 1980's, it continued to experience business difficulties. As a result of its losses, it undertook a corporate restructuring which was followed by the discharge of a number of employees, including appellee Benjamin.

Appellee, age 62 at trial, was in charge of appellant's international sales, which had declined prior to his discharge. At the time of Benjamin's termination, the value of the United States dollar was rising, making it more difficult for American companies to compete successfully for foreign business. United Merchants contends that it demoted Benjamin twice for poor performance, though it did not memorialize the asserted demotions in any of its business records. Benjamin argues that the decline in foreign sales that cost him his job was due to the then rising dollar, and not to his performance. Appellee--whose interest in the company's pension plan had vested--was fired in 1983 after 38 years with the company, during which time his responsibilities had substantially increased. Five months later, he was replaced with a 41 year-old employee who was not vested in the employer's pension plan. Benjamin's separation notice stated that United Merchants would reemploy him, and the box on that form indicating "Unsatisfactory work" was not checked.

Discussion

A. ADEA Violation

The ADEA provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). This protection extends to employees who are at least 40 years old. Id. § 631(a). Benjamin made out a prima facie case of an ADEA violation by establishing that he was (1) a member of the protected class, (2) qualified for his job, (3) fired, and (4) replaced by a younger individual, see Haskell v. Kaman Corp., 743 F.2d 113, 119 n.1 (2d Cir. 1984), and that, therefore, his discharge occurred under circumstances giving rise to an inference of discrimination on account of age. See Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983).

Our review of a denial of a judgment n.o.v. turns on whether viewing the evidence in the light most favorable to Benjamin there is (1) no probative evidence to support a verdict in Benjamin's favor, or (2) the record evidence so strongly favors United Merchants that fair minded jurors exercising impartial judgment could not arrive at a verdict against the employer. See Howes v. Great Lakes Press Corp., 679 F.2d 1023, 1030 (2d Cir.), cert. denied, 459 U.S. 1038, 74 L. Ed. 2d 605, 103 S. Ct. 452 (1982); Mattivi v. South African Marine Corp., 618 F.2d 163, 167-68 (2d Cir. 1980). Applying this test, it is clear that there was ample evidence for the jury to have found that United Merchants' asserted reason for firing Benjamin (poor performance) was pretextual.

The jury could properly have determined that appellant decided to discharge Benjamin from employment because of his age. The ADEA prohibits such terminations even when the company is undergoing a legitimate business restructuring or work force reduction. See Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983). Moreover, age need not be the sole reason for discharge in order to find an ADEA violation. The jury was entitled to conclude that appellant's asserted reasons for Benjamin's discharge were not credible, and that his age and consequent entitlement to a pension tipped the employer's decision against him. See id. at 82. Hence, the district court correctly denied appellant's motion for judgment n.o.v. on the jury verdict finding that United Merchants had violated the ADEA.

B. Damages

1. Liquidated ...


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