On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil No. 90-01428).
Before: Greenberg, and Garth, Circuit Judges and Robreno, District Judge*fn*
This appeal follows final judgment in favor of the appellee, Clarence C. Seman, on his age discrimination claim against his former employer, appellant United States Cement Company ("U.S. Cement"), pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a).*fn1 The trial jury found that Seman's age was a determining factor in U.S. Cement's decision to terminate his employment; that Seman would have been employed by U.S. Cement's successor company had Seman's age not been a factor in the termination decision, and that Seman was entitled to backpay amounting to $150,000 -- $10,000 more than Seman's counsel had requested at trial.
On appeal, U.S. Cement assigns six points of error: (1) the district court erred in denying U.S. Cement's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a); (2) the district court abused its discretion in denying U.S. Cement's motion for a new trial on the ground that the jury verdict was excessive and the result of passion, prejudice or caprice; (3) the district court erred in not reducing the verdict to the $140,000 amount requested by Seman in backpay; (4) the district court erred in instructing the jury concerning the appropriate burden of proof; (5) the district court erred in instructing the jury that it could consider whether Seman's employment would have continued with U.S. Cement's successor company in calculating U.S. Cement's liability for Seman's back pay; and (6) the district court erred in refusing U.S. Cement's request for remitter of federal income taxes on Seman's backpay award.
We have jurisdiction pursuant to 28 U.S.C. § 1291 to review the final amended order of the district court entered on September 23, 1993. We hold that the district court did not err in denying U.S. Cement's Rule 50(a) motion, and that the case was properly submitted to the jury. We also hold, however, that the district court erred in its instruction to the jury.
The need to consider the merits of U.S. Cement's remaining arguments is therefore obviated by our determination that the erroneous jury instruction requires reversal of the final amended judgment entered by the district court on September 23, 1993 in favor of Seman and against U.S. Cement in the amount of $167,827.83, including prejudgment interest. We thus leave the remaining issues raised on this appeal by U.S. Cement for determination in the first instance by the district court on retrial. Indeed, at oral argument counsel urged that we consider issues relating to backpay only if we were not persuaded that the erroneous jury instruction required reversal.
We, therefore, will reverse the September 23, 1993 final amended judgment, and will remand for a new trial on Seman's ADEA claim against U.S. Cement.
Seman was hired by SME Bessemer Cement Company in April 1983 as a cement salesman. He retained that position when SME Bessemer was purchased in April 1987 by its wholly-owned subsidiary, U.S. Cement. Between April 1983 and January 1988, Seman was assigned to handle primarily cement field sales in southwestern Pennsylvania. In January 1988, Seman was promoted to the newly-created position of assistant sales manager for U.S. Cement, and worked briefly out of an office at U.S. Cement's plant office in Lowellville, Ohio. Although U.S. Cement executives later testified that the assistant sales manager position was never intended to be a permanent position, no one apparently mentioned that fact to Seman.
Shortly after turning 65 on May 3, 1988, Seman was asked about his plans for retirement by Arthur Edwards, U.S. Cement's vice president of sales. Seman informed Edwards that he did not intend to retire for at least several years. Within a month of that Discussion, Seman's position as assistant sales manager was eliminated, and Seman was ordered back to the field without any change in pay or benefits. At that time, U.S. Cement had five cement salesmen: Seman; Robert McDonough, 54; Frank Long, 41; Lee Lydic, 33; and Kurt Rosander, 31. At 65, Seman was by far the oldest member of the cement sales force.
In September 1988, just a few months after being sent back to the field, Seman was informed by Edwards that U.S. Cement was reducing its sales force, and that the company had decided to lay off Seman and McDonough. Seman requested reconsideration of that decision, and suggested to Edwards that U.S. Cement's selection of its two oldest salesmen as casualties of the reduction in force decision could be viewed as age discrimination. Seman also threatened to communicate with the Equal Employment Opportunities Commission ("EEOC") concerning the threatened layoffs. Ultimately, U.S. Cement decided to retain McDonough, and to terminate Long, 41, along with Seman.
Effective October 31, 1988, Seman and Long were laid off from their positions as field salesmen. Long was rehired that same day by U.S. Cement and given another position at no loss of pay. Seman, however, was never offered reemployment in any capacity by U.S. Cement.
On August 29, 1990, Seman commenced this action in the district court, alleging a violation of the ADEA. At trial on his claim against U.S. Cement, Seman introduced evidence showing that, after being approached about his plans for retirement, he was laid off from a job for which he was qualified while younger and less-experienced salesmen were retained by U.S. Cement to perform essentially the same duties he had performed before his employment was terminated. The evidence also showed that all of U.S. Cement's sales people -- except for Lydic, who voluntarily left to work for a competitor -- were retained after U.S. Cement was acquired by ESSROC Materials, Inc. in August 1990. For its part, U.S. Cement presented evidence to support its position that the decision to terminate Seman's employment was based solely on legitimate nondiscriminatory business reasons, and was not in any way motivated by Seman's age.
Following the introduction of all of the evidence, U.S. Cement moved for entry of judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a).*fn2 That motion was denied by the district court Judge, who then submitted the case to the jury on special interrogatories after instructing the panel on the law. The jury was asked to determine:
(1) Do you find by a preponderance of the evidence that plaintiff's age was a determining factor in defendant's decision to terminate plaintiff's employment? [The jury answered,] Yes;
(2) Do you find by a preponderance of the evidence that plaintiff would have been employed by ESSROC after it acquired, on February 27, 1990, United States Cement facility at which plaintiff was formerly employed if plaintiff's age had not been a factor in defendant's decision to terminate plaintiff's employment? [The jury answered,] Yes;
(3) To what amount of back pay is plaintiff entitled? [The jury answered,] $150,000.
A judgment in favor of Seman and against U.S. Cement was then entered in the amount of $150,000. U.S. Cement filed this appeal after its motion for a new trial was denied and the district court entered a final order amending judgment in favor of Seman to include prejudgment interest.*fn3
We exercise plenary review of an order granting or denying a motion for judgment as a matter of law and apply the same standard as the district court. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). In an ADEA disparate treatment case, our standard requires consideration of whether or not there is substantial evidence in the record to support an employee's contention that "'but for' his age he would not have been discharged." Billet v. Cigna Corp., 940 F.2d 812, 815 (3d Cir. 1991).
The ADEA prohibits discrimination in employment against an individual over age 40 because of that individual's age. 29 U.S.C. 623(a)(1).*fn4 To recover in an ADEA action, a discharged employee over the age of 40 must first establish by a preponderance of the evidence a prima facie case of age discrimination. For employees such as Seman who are not replaced because their jobs are eliminated, a prima facie case of age discrimination requires only a showing that the discharged employee was at least forty years of age when his employment was terminated, and that he was laid off from a job for which he was qualified ...