Professional Documents
Culture Documents
____________________
March 29, 1994
____________________
_____________________
* Of the Eastern District of Pennsylvania, sitting by designation.
Discrimination in
sections
621
et seq.
_______
This
Employment
(1988),
Act
with
("ADEA"),
a pendent
29
U.S.C.
claim
under
The
plaintiff,
the
Dania
Keisling, claims
that
her
firing by
Finding
liability both
("SER"), was
F. Green and
under ADEA
of SER
Lois K. Turner.
law, the
jury
(1) awarded
Keisling
$32,874
in compensatory
damages
damages against
at 1 (D.R.I. Mar.
Appellants
now appeal.
11, 1993).
(hereinafter "A.")
121.1
Turner.
$25,000 in
Memorandum and
and Turner
____________________
1
Rhode Island law permits the award of "punitive
damages" in cases of discrimination involving "reckless
indifference" to the plaintiff's rights. See R.I. Gen. L.
___
28-5-29.1.
Keisling sought an additional award of $32,874
in "liquidated damages" pursuant to the ADEA, 29 U.S.C.
626(c).
The district court denied this request, reasoning
that because liquidated damages under the ADEA are punitive
in nature, permitting Keisling both liquidated damages under
federal law and punitive damages under state law would
result in a double recovery for a single wrong. A. 121-23.
-2-
I.
FACTS
The record developed at trial would
support factual
findings as follows:
SER
is
a non-profit
Rhode
Island social
service
population.
Dania Keisling
became
an
associate
board of directors.
During
was
this time
its
increased
dramatically.
evaluations of
services
Keisling's
Keisling did
job
responsibilities
not
receive
formal
however, that
and I was
doing a real good job" and "that I was always actually running
that
agency."
Transcript
-3-
of
Defendants-Appellants
In
and
SER began
Keisling
the
and Lynn
applied to fill
she
applied
conversations
comments.
chore of
finding
Trudell, SER's
the vacancy.
for
the
with
other associate
Both
director,
position
Green
a replacement.
in
she
which
had
at
Green made
after
least
two
age-related
Sure, you can run this agency and you have done it
but do you want to do that and do you want that
aggravation at your age?
T.
49.
Two
other
witnesses,
an
independent
bookkeeper
during the
time
executive director.
In November
that
SER
was
about Keisling to
searching
for
T. 182, 218.
1989, SER hired
Dr. Lois K.
Turner as
Turner
director,
functioned
supervising the
consultation
new
with Green.
essentially
as
daily operation
Among
in
interim
executive
of the
agency in
responsible
for
performing
an
extensive
review
A. 164-65.
of
the
hiring of a
new
-4-
performance.
attention.
Specifically,
members had
Turner
told
timely manner.
Keisling that
had yelled at
memorandum
Keisling
to complete some of
February
1,
her tasks in a
1990
--
with Keisling in
a
memorandum
on February 9.
In
of
the
alleged
deficiencies
memorandum, Turner
that
The memorandum
number
performance.
them and
T. 58-9.
dated
repeated the
staff
forth
problems with
gave
Keisling's
Keisling
demonstrate
appropriate
professional
A. 133, 135.
behavior
and
to
Keisling responded to
memoranda of her
own, one to
2, at
the conclusion of
her employment
was to
A. 136, 138.
the probationary
be terminated.
They
her
presented
-5-
the
Executive Committee
decision to
of
SER
A. 144.
They
dated
March
2,
inappropriate
Turner's
detailing
additional
behavior and
instances
inadequate
of
alleged
performance. A.
141.
the
At the
ANALYSIS
From
Keisling, the
for appeal are
address
district
two in
the
jury's
three defendants
advanced.
detail.2
court erred
in
the
verdict
district
Of
favor
of
plaintiff
have appealed.
Four grounds
these, it is only
necessary to
First, defendants
failing to
a matter of
court
in
claim that
grant their
law.
committed
post-trial
Second, they
prejudicial
the
argue
error
in
by
defendant
Green
and
by
Keisling
herself.
These
____________________
2
10.
-6-
Defendants
argue that
for judgment as
claim
failed
that Keisling
sufficient
even
discrimination,
to
much less
a matter of law.
to introduce
establish
to
erred in
evidence at
prima facie
____________
carry her
They
trial
case
of
ultimate burden
of
proof.
Defendants' argument suffers from two flaws.
as Keisling
points out,
defendants failed to
a matter of
preserve their
by failing to make a
law at
the close
First,
motion for
of all
evidence.
permits a
are
rule, made
Defendants, in
a motion for
judgment as
motion, however,
defendants
to the jury."
seeking to
present
on
T. 289.
That
If
having denial of
is required to
-7-
matter of law at
the
close of
Requiring
the
all
the evidence.
motion to
be
Fed.
made at
R.
the
Civ. P.
50(b).3
close of
all the
prior to
jury.
Civ. P. 50(a)
(1991).
See
___
Fed. R.
This
court
consider claims of
submission of the
law at
advisory committee's
therefore has
held
that it
case to
will
the
note
not
the district
the evidence.
See
___
Jusino v. Zayas,
_______________
They claimed
at the close of
them to believe
by
both the
district court
and this
court, and
that their
____________________
3
states:
reasonable reliance on
the necessity for
a renewed motion
comments removed
at the close
of all
the
evidence.4
We are far from
comments could reasonably
the
judge that
matter
of law at
defendants need
the close
not move
of all
an assurance by
for judgment
the evidence.
as a
However,
into
asserted reliance on
nonetheless, insufficient
to obviate
those
the need
of the
____________________
4
The comments of the district judge on which
defendants claim to have relied were as follows:
First,
after hearing argument on the defendants' motion, the court
stated:
of the
on a
plaintiff's
case
be
challenged
at
the close
of
all
the
evidence.
To
requirement
that only
be
is not
sure, the
obligation
absolute, but
to conform
this court
to
the
has emphasized
justify treating a
motion
at
circumstances
narrow
343,
the
--
close
of
which, we
all
have
the
said,
evidence.
Those
constitute a
"very
Cir. 1986),
to the
rule that
case
...
combining
judicial
F.2d
the motion
be
assurance
concerning
inconsequential evidence
following
1970).
court's
In
statements
may
induced,
issues
raised
in
the
the
district
evidence
that
motion.
."
972 (1st
have
was undeniably
. .
F. 2d 968,
the motion.
If
defendants
to the
believed,
it was incumbent
upon them to make that belief known to the court and to permit
-10-
to the jury.
exception"
to the submission of
of
Della Grotta,
____________
Bayamon
_______
and
Beaumont,
________
court
even if defendants
the
stringent standards
matter of
law.
A court
necessary
for
failed to
judgment as
is without authority to
set aside a
62, 66
standard
(1st Cir.
1993).
whether this
non-moving
inferences
party
which the
is
entitled to
evidence fairly
"the
benefit
of all
supports, even
though
contrary inferences
Quattrocci, 949
__________
F.2d
n.1
(1st Cir.
Cochrane v.
___________
1991)
(quoting
Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S.
____________________________________________________
690, 696
(1992).
-11-
job
responsibilities
were
forth in
a plaintiff may
assumed
by another
person,
for the
position
the possibility that the adverse job action was for inadequate
job
performance.5
922
F.2d 43,
See
___
45 (1st
Defendants
concede that
was terminated
by SER.
40 years of age
They argue,
however, that
Keisling
elements of
the
prima facie
___________
case,
and that
they
are
____________________
5
ADEA
Keisling failed to
another.
In making this
Keisling.
This
Keisling presented
fact,
however,
evidence
that Lynn
establish
is not
replacement
determinative.
Trudell, SER's
other
This
evidence is
purpose of establishing
"continued
to show,
sufficient
failed
see also
________
Loeb v.
_______
SER had
the
for
that, viewing
the evidence
SER hired
employee
Defendants have
in a
light most
favorable to Keisling, no
Keisling
third
established the
element of
case.
Defendants
also
argue
that
Keisling
failed
to
that
her performance
expectations
of
was sufficient
SER.
Defendants
to meet
contend
the legitimate
that
the
only
-13-
evidence
was
Keisling offered
her own
assessment
of her acceptable
of her
to establish
achievements and
case.
Defendants
entirety
while
of
the
fourth element
substantially,
defendant Green)
regular pay
of the
prima
_____
to take
Keisling's evidence.
employed at
abilities.
job performance
SER, her
she received
into
Keisling testified
responsibilities
positive
feedback
increases.
Keisling also
account the
that
were increased
(e.g.,
from
she received
introduced a favorable
letter of
recommendation
director,
Carlos Pedro.
written by
It
SER's former
is true that
executive
evidence
Keisling's
adequate
does,
however,
support
job performance at
to
succeeded
meet
SER's
an
the time of
inference
legitimate needs.
in establishing
the
that
Keisling
thus
of the
prima
_____
fourth element
facie case.
_____
Defendants note that
at the
inadequate.
evidence,
and
establish
apprehend
the
Under
that this
failure
prima facie
____________
case.
McDonnell
burden-shifting
Douglas,
the
amounted to
This
failure to
argument
structure of
an
burden initially
fails
ADEA
is
to
case.
on
the
__________________
plaintiff to
case.
establish all
Once
the
production shifts
required
plaintiff
to the
has
to present evidence
explodes
production,
the
evidence and
If
of
discrimination
plaintiff
was
indeed
the
Thus,
to
in
an ADEA
the orderly
it is not unusual
case-in-chief
framework,
is
burden
of
defendants are
to
created by
the
their burden
of
the defendant's
action suffered by
product
of
illegal
the
of a legitimate
plaintiff must
discrimination.
neatly
so,
prima facie
___________
the presumption
done
of the
the
the elements
evidence
best
case
presentation
of
for a plaintiff
that,
within
understood
as
the
always
correspond
evidence at
trial.
to introduce in her
McDonnell Douglas
_________________
responsive
to
evidence
The
does not
defendants'
case.
mean that
anticipation
case constitute
To
hold otherwise
Supreme Court
an
of the
the assertion
of establishing a
of the
prima facie
___________
U.S. 248,
element of
would belie
and rebuttal
950
253 (1981);
F.2d
816,
see also
________
823
(1st
Mesnick v.
__________
Cir.
1991);
in
to
ask is
defendants
this
not
manner, the
whether
proper
question
Keisling has
failed
to
carry
the
ultimate
burden
of
persuasion
of
this
appeal,
in meeting her
we must
burden.
conclude
that
Granted, the
for
to
has
upon
For the
Keisling
evidence of
discrimination
that
overwhelming.
Keisling
presented
It is certainly conceivable
was
far
from
that a reasonable
a legitimate response
job behavior, or
not
to inappropriate on-the-
age discrimination.
was
It seems to
-16-
requires
defendants'
witnesses,
inappropriate behavior,
that
she
ever
who
within the
court
not
of
described
the
credibility
Keisling's
behaved
peculiarly
may
weighing
improperly.
province
interpose
of the
judgment
Such
credibility determinations.
See
___
who denied
are
An appellate
different
alleged
assessments
jury.
of
from
that
it was, on the
conclude
record made at
trial, inapposite, we
in denying the
motion.
B.
defendants
the
presentation
presented
testimony
by
counsel
both
by
particular, defendants'
defendants'
SER's
In the course of
questioned
Keisling
of
and
former
counsel sought
executive
Pedro's testimony,
Pedro concerning
defendant
case,
Alma
statements
Green.
to elicit from
In
Pedro
-17-
statements
by
Keisling and
Green
to the
effect
that each
respectively was
their jobs.
getting too
Defendants'
old to endure
counsel posed
the travails
the question
of
in two
forms, as follows:
Q:
During from [sic] the period of 1987 until 1989
when you were employed at the agency, did you have
occasion, while in the presence of Alma Green or
Dania Keisling, to hear conversation where the words
to the effect were [sic] "I'm getting too old for
this crap or too old for this stuff" were used?
Q:
In 1987 until 1989 when you left the agency,
Mr. Pedro, did you ever hear conversation in the
agency where reference to age was used?
T.
514-15.
calling
for
sustained
hearsay
the
responses,
objections.
and
to both questions as
the
Defendants
now
district
court
claim that
the
Rule
801(c)
of the
Federal
Rules of
asserted."
was
agree.
evidence
to
prove
the
the trial
truth
In counsel's questions to
attempting to
statements
testifying at
made out
elicit
from
of court;
-18-
of
or hearing,
the
matter
Pedro
testimony
concerning
to that
extent,
the hearsay
rules were
implicated.6
Defendants
of Keisling
truth of
the
Rather, in seeking to
to herself as
And
____________________
6
Defendants' assertion that the questions did not
call for a hearsay response because they simply required a
"yes" or "no" answer is flawed.
A party cannot evade the
dictates of the hearsay rules simply by having an attorney,
rather than the witness, present the alleged out-of-court
statement and then asking the witness, "Is that what you
heard?" To the extent that the questions posed called for
Pedro to affirm or deny the content of an out-of-court
statement, the questions fell within the purview of Rule
801.
7
Keisling contends that defendants did not argue to
the district court that Keisling herself had made comments
referring to her age, and that defendants therefore cannot
present that argument to this court. Keisling's contention
were devoid of
As
defendants
provided a
animus.
may have made regarding being 'too old' for this job
with
environment."
a difficult
Appellants'
job
Brief
in
at
a difficult
17.
economic
Because
the
the matter
Rule 801(c).8
In
addition
to
establishing
that
the
proffered
prejudiced by
the
exclusion
of
the testimony.
See
___
done so.
As we have
discrimination, while
We
said, Keisling's
sufficient to withstand
____________________
"[I]n the case that those statements are attributed to
either a defendant or a plaintiff, I believe they are
clearly admissible." T. 515-16. That argument may not have
been a model of clarity, and it is true that counsel did not
elaborate with respect to statements by Keisling. Counsel's
presentation was, however, sufficient to
preserve the
argument made on this appeal.
8
Of course, from the standpoint of hearsay doctrine, an
out of court statement by the plaintiff, when offered by the
defendant, is not hearsay even if offered for the truth of
the matter asserted. Fed. R. Evid. 801(d)(2)(A).
-20-
motion
for
judgment
as
The
testimony
overwhelming.
matter
relevant to the
of
proffered
law,
by
was
hardly
defendants
and
defendants
The
testimony was
direct
evidence
presented.
offered in
of
tip
discriminatory
In a close
an attempt
to rebut
animus
case, depending on
that
Keisling
the assessment of
the sole
enough to
warranted.10
____________________
9
Keisling argues that the testimony,
even if
admissible, was duplicative, because Green herself testified
that she frequently made comments along the lines of "I'm
getting too old for this crap." To the extent, however,
that the testimony of Pedro might have (1) reinforced the
credibility of Green's testimony, which was plainly in her
self-interest, and (2) shown that Keisling herself made
similar comments, the testimony would not have been simply
duplicative.
10
Defendants raise two additional issues on appeal.
First, they argue that the district court erred in excluding
a
document entitled
"Since Original
Warning," which
purported to list 18 deficiencies in Keisling's performance
following the original warning that Keisling received.
Defendants argue that the document is admissible as a
business record kept in the ordinary course of business that
was considered by the SER Board of Directors in making the
decision to terminate Keisling. The district court excluded
the document.
It concluded that the document represented
cumulative evidence, because Turner herself testified at
length
concerning
Keisling's
deficiencies
and
the
-21-
III.
CONCLUSION
Having concluded
vacate
the judgment
entered
by the
district
court and
____________________
presentation that Turner had made to the Board of Directors.
In addition, while the court apparently did not rely on this
point, the court noted that there was evidence that the
document had been prepared after Keisling's termination.
Since we have decided on other grounds that a new trial is
warranted, we are not required to resolve the issue.
Nonetheless, given that the issue is likely to recur in any
new trial, we think it appropriate to note that, on the
record before this court, it appears that the district
court's decision to exclude the document did not represent
an abuse of discretion.
Second, defendants argue
that they
are
entitled to a new trial because the jury's verdict was
against the weight of the evidence.
As we are ordering a
new trial on other grounds, we find it unnecessary to
address this issue.
-22-