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Anastasio v. Schering Corp.

filed: February 5, 1988.

ANTHONY J. ANASTASIO, APPELLANT IN 87-5225
v.
SCHERING CORPORATION, APPELLANT IN 87-5188



On Appeal from the United States District Court for the District of New Jersey, D.C. Civil Action No. 83-4549.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

The appeal and cross-appeal before us arise out of an age discrimination suit brought by plaintiff Anthony J. Anastasio against his former employer, Schering Corporation (Schering).*fn1 Anastasio claimed that Schering eliminated his job and fired him because of his age. The case was bifurcated and tried before two juries. The first jury found in Anastasio's favor on the issues of liability and willfulness. The second awarded him $184,853.70 in damages. The district court granted Schering's motion for judgment notwithstanding the verdict on the issue of willfulness but denied the remainder of the parties' post-trial motions.

Schering challenges the district court's rulings on the following bases: (1) there was insufficient evidence to place the question of liability before the jury or, in the alternative, to support the jury's finding; (2) plaintiff's counsel made improper remarks during his summation in the liability phase of the trial that were prejudicial and thus warrant a new trial; and (3) as a matter of law, Anastasio failed to mitigate his damages because he refused the job Schering offered him.*fn2 In his cross-appeal, Anastasio contends the district court erred in granting Schering's motion for judgment notwithstanding the verdict on the issue of willfulness and in denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on the damage issues of front pay and mitigation.

For the reasons that follow, we will affirm the order of the district court.

I

The following facts are stipulated. Defendant, Schering Corporation, engages in the research, development, manufacture and marketing of ethical and proprietary pharmaceuticals. The International Pharmaceutical Products Division (IPPD) is the division of Schering that is responsible for its international operations.

Plaintiff, Anthony J. Anastasio, was employed by Schering in the technical services department of IPPD from December 3, 1962, until December 31, 1982. He was hired in 1962 as Assistant to the Technical Liaison Manager. Between 1968 and 1970 he became the department's Engineering Liaison Manager. By 1974, he was responsible for chemical and industrial engineering services and supervised three industrial engineers and one chemical engineer. In the early 1970's Anastasio's title was changed to Manager-Engineering.

The following facts were established at trial. On October 12, 1982, Anastasio met with his supervisor, Anthony Wolfe, IPPD's Director-Technical Services, and Matthew Marcus, IPPD's Personnel Manager. Marcus told Anastasio that his position was being eliminated effective December 31, 1982.*fn3

Anastasio and Marcus met again on October 19, November 12 and December 8, 1982. At the November 12 meeting Marcus offered Anastasio the position of Technical Procedures Control Supervisor. The salary grade level of that position was 85 and the salary range was $22,800 to $36,200. The position was considered professional rather than managerial; it entailed supervising four clerical employees. The salary grade level of Anastasio's position, Manager-Engineering, was 90 and its range was $36,000 to $57,800. Anastasio's salary, as of November 12, 1982, was $50,650; he supervised five employees, three of whom were professionals. At the December 8 meeting, Marcus offered Anastasio the position of Technical Procedures Control Manager, at a salary grade level of 59.*fn4 The job responsibilities for this position were those of the Technical Procedures Control Supervisor, making it the same job with a different title and salary grade.

Anastasio declined the job offers made at the November 12 and December 8 meetings. His employment with Schering was terminated on December 31, 1982. On that date Anastasio was 62 years old.

On November 22, 1982 (prior to his termination), Anastasio filed a verified complaint with the New Jersey Division on Civil Rights and a charge of discrimination with the Equal Employment Opportunity Commission, wrongfully from his job because of his age. One year later, he filed a complaint in the District Court of New Jersey, charging age discrimination under both the Age Discrimination in Employment Act (ADEA), 29 U.S.A.C. §§ 621-634 (West 1985) and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-12 (West Supp. 1987).*fn5 Prior to trial, both parties filed motions for summary judgment, which were denied. The trial was bifurcated as to liability and damages, and the liability and damages phases were tried before separate juries.

In the liability phase, the jury returned a verdict for plaintiff, finding that Anastasio's age was a determinative factor in Schering's decision to terminate his position and his employment, that Schering's stated reasons for Anastasio's termination were pretextual, and that Schering's actions in this matter were willful. After the jury returned this verdict, Schering renewed its motion for a directed verdict*fn6 and also moved for judgment notwithstanding the verdict. The district court denied Schering's motions as to the jury's finding that age was a determinative factor in the termination and that Schering's stated reasons for it were pretextual. It granted Schering's motion for judgment notwithstanding the verdict as to the willfullness of the ADEA violation.

In the damages phase of the trial, the jury first found that Schering did not offer Anastasio a job that was substantially equivalent to his position as Manager-Engineering. Proceeding to the issue of general mitigation, it found Anastasio had failed to mitigate his damages by failing to be reasonably diligent in trying to secure other employment, but declined to reduce his damages due to this failure to mitigate. It then awarded ...


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