United States District Court, D. New Jersey
Munshi, Esq. (pro hac vice) Laura C. Mattiacci, Esq. Susan M.
Saint-Antoine, Esq. Emily Rose Derstine Friesen, Esq. Console
Mattiacci, LLC, -and- Stephen G. Console, Esq. Megan Knowlton
Balne, Esq. Console Mattiacci, LLC Attorneys for Plaintiff.
Anjanette Cabrera, Esq. Constangy, Brooks, Smith &
Prophete -and- Tamika Nordstrom, Esq, (pro hac vice)
Constangy, Brooks, Smith & Prophete -and-Rodrick D.
Holmes, Esq. (pro hac vice) Constangy, Brooks, Smith &
Prophete -and-Michael Gaston-Bell, Esq. (pro hac vice)
Constangy, Brooks, Smith & Prophete Kansas City, MO 64108
-and-Kannon K. Shanmugam, Esq. (pro hac vice) Williams &
Connolly LLP, Attorneys for Defendant.
OPINION DKT. NO. 114]
RENÉE MARIE BUMB, United States District Judge
close of a four-day trial, a jury found that Defendant
Lockheed Martin Corp. (“Defendant” or
“Lockheed”) discriminated against Plaintiff
Robert Braden (“Plaintiff” or
“Braden”) on the basis of age, in violation of
the Age Discrimination in Employment Act, as amended, 29
U.S.C. § 621, et seq. (“ADEA”), and
the New Jersey Law Against Discrimination, N.J.S.A. §
10:5-1, et seq. (the “NJLAD”). The jury
awarded Plaintiff $520, 000 for lost wages and benefits,
$520, 000 for emotional distress, and $50, 000, 000 in
matter now comes before the Court upon the filing of an
omnibus post-trial Motion by Defendant seeking judgment as a
matter of law as to both liability and damages pursuant to
Fed.R.Civ.P. 50(b), a New Trial pursuant to Fed.R.Civ.P. 59,
or Remittitur of the jury's emotional distress and
punitive damages awards. For the reasons set forth below,
Defendant's Motion for Judgment as a Matter of Law shall
be DENIED, Defendant's Motion for a New Trial shall be
GRANTED, in part, and DENIED, in part, and Defendant's
Motion for Remittitur of emotional damages shall be DENIED.
Because the Court grants Defendant's motion for a new
trial on the issue of punitive damages, it need not reach
Defendant's motion to remit the punitive damages award.
2, 2014 Plaintiff filed a two-count complaint alleging that
Lockheed terminated his employment because of his age, in
violation of the ADEA and the NJLAD. This Court has
jurisdiction over plaintiff's ADEA claim pursuant to 28
U.S.C. § 1331 and exercises supplemental jurisdiction
over plaintiff's NJLAD claim pursuant to 28 U.S.C. §
moved for summary judgment on October 20, 2015, seeking
dismissal of Plaintiff's discrimination claims on two
bases. First, Defendant argued that Plaintiff could not
establish a prima facie case of age discrimination under the
framework initially set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Specifically, Lockheed argued that the
evidence of record was insufficient to establish that a
similarly situated younger person was retained or hired to
fill Plaintiff's position. See Anderson v. Consol.
Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002). Second,
Lockheed contended that even had Plaintiff established a
prima facie case of age discrimination, Lockheed had
proffered a legitimate, non-discriminatory business reason
for terminating Plaintiff --current or projected lack of work
-- and Plaintiff had failed to establish that such reason was
11, 2016, this Court issued a Memorandum Order denying
summary judgment, finding that (i) whether employees retained
by Lockheed were sufficiently “similarly
situated” to Plaintiff was a genuinely disputed issue
of fact which a jury should resolve, and (ii) Plaintiff had
identified sufficient evidence of pretext to survive summary
judgment. (Dkt. No. 35). Lockheed filed a motion for
reconsideration on May 23, 2016, which this Court denied on
July 28, 2016. (Dkt. No. 39).
January 6, 2017, Lockheed filed two motions in limine seeking
to exclude various evidence and testimony and to bifurcate
the issues of liability and damages at trial. Among other
things, Lockheed sought to exclude testimony regarding an age
discriminatory remark allegedly made by Jay Hansen,
Plaintiff's direct manager's (James Judd) manager at
the time of the alleged comment, about “getting
rid” of Plaintiff, as well as testimony from Plaintiff
regarding the emotional distress he suffered as a result of
his termination. With regard to Hansen's statement,
Lockheed argued that it was alleged to have been made so long
before Plaintiff's termination that it could not possibly
be relevant, and that even if it were relevant it was unduly
prejudicial. With regard to Plaintiff's testimony
regarding his emotional distress, Lockheed argued that
Plaintiff, as a lay person, was not competent to testify
regarding what Lockheed qualified as medical diagnoses, and
that any such testimony would be unduly prejudicial.
Court held oral argument on the Defendant's motions on
January 19, 2017. At that hearing, the Court made several
rulings, one of which is relevant to the pending motions. As
is discussed in greater detail below, the Court denied
Lockheed's request to exclude testimony regarding Jay
Hansen's alleged comment about “getting rid”
of Plaintiff, holding, in general, that the comment set the
gears of discrimination in motion, and the jury could decide
what weight to give the testimony, if any. (1/19/17 Oral Arg.
Tr. at 7:17-8:25).
trial was held from January 23, 2017 through January 26,
2017. Plaintiff called three witnesses: Dennis Gillespie, a
Human Resources Business Partner for Lockheed at the time
Plaintiff worked there; Christopher Kebalo, a Director with
oversight of the unit in which Plaintiff worked; and
Plaintiff himself. Plaintiff also relied on various
documentary evidence, which constituted a significant portion
of his case and much of which is described in further detail
below. At the close of the Plaintiff's case-in-chief,
Defendant moved for judgment as a matter of law under
Fed.R.Civ.P. 50. Defendant argued that Plaintiff had failed
to present evidence sufficient for a reasonable jury to find
that Lockheed had retained a similarly situated younger
employee when it terminated Plaintiff. (Trial Transcript
“Tr.” 295:5-7). The Court denied the motion,
finding that Plaintiff had presented sufficient evidence to
warrant submission of the case to the jury.
called James Judd, Plaintiff's manager from the early
2000s; Hansen, the upper-level manager from Lockheed whom
Plaintiff alleged had made age-related comments about
Plaintiff; Gillespie, the Human Resources Business Partner;
Christopher Renna, the manager of Plaintiff's unit at the
time of his termination and the individual who selected
Plaintiff for termination; and Kebalo, the Director of the
unit. At the close of its case, Defendant again moved for
judgment as a matter of law, arguing that Plaintiff had
failed to submit sufficient evidence to establish that
Lockheed had retained a similarly situated younger employee
and that Plaintiff had failed to establish that
Lockheed's justification for firing Plaintiff was
Court denied Defendant's motion. The case was submitted
to the jury, which found for Plaintiff and awarded him $520,
000 in compensatory damages and $520, 000 in emotional
damages. The jury also found that Lockheed's violation
had been willful, triggering an award of $520, 000 in
liquidated damages under the ADEA. See 29 U.S.C.
reaching a verdict on liability, the jury heard
Plaintiff's case on punitive damages, which consisted of
Plaintiff's testimony, in his capacity as a Lockheed
shareholder and long-time employee, about the worth of
Lockheed. (Tr. 733- 742). Plaintiff initially sought to
question in-house counsel for Lockheed, who was present at
trial, but relented upon Defendant's objection. (Tr.
720-23). Defendant cross-examined Plaintiff but presented no
witnesses of its own. Defendant did not move for judgment as
a matter of law at the close of the punitive phase. After a
short deliberation, the jury returned a punitive damages
award of $50, 000, 000. Defendant orally moved to remit the
jury's award. The Court responded that it would receive
the parties' written submissions.
Court entered Judgment on February 6, 2017. On March 6, 2017,
the parties filed the pending motions.
noted above, the jury found for Plaintiff after a four-day
trial. The following constitutes a summary of the evidence
presented at trial.
was born on February 27, 1946. He was hired as an engineer by
RCA, a predecessor to Lockheed, in December, 1984, and
remained employed with the company, through a series of
mergers, until 2012 when he was terminated as part of a
Reduction-in-Force (“RIF”), a mass layoff by the
company. Plaintiff was 66 years old at the time of his
termination, and he maintains that he was selected for the
RIF because of his age.
Plaintiff's Positions at Lockheed; Corporate
served in a number of positions in his 28 years at Lockheed.
In 2010, he was moved for the final time from the “New
Ventures” program to the Hardware Engineering
Organization (“Hardware Engineering”) within the
Mission Systems and Sensors (“MS2”) business
unit. At the time of his termination, Plaintiff was serving
as a Project Specialist, Senior Staff (“PSSS”)
and working largely on “Anti-Tamper”
technology. Employees designated as PSSS were
engineers with significant technical experience, but did not
typically have other employees reporting directly to them.
Plaintiff was part of a group of employees who reported
directly to Christopher Renna, a staff manager in the MS2
unit. The other PSSS employees in Plaintiff's group were
James Reynolds and Kim Tighe who were 47 and 34 years old,
respectively, at the time of the RIF. Neither Reynolds nor
Tighe was terminated.
in turn, reported to Christopher Kebalo, the Director of
Hardware Engineering. Kebalo's direct superior was Jay
Hansen. Hardware Engineering fell within the ambit of
“Tech Ops, ” and the Vice President in charge of
“Tech Ops” for MS2 was Norm Malnak.
Plaintiff's time at Lockheed the company undertook a
yearly formal evaluation process for its employees.
Throughout the year, individuals who worked closely with or
who had firsthand knowledge of the employee's
performance, known as “multi-raters, ” could
provide written feedback through Lockheed's automated
performance review system. In Plaintiff's case, these
individuals were typically project managers and other
employees working with Plaintiff on projects to which he was
end of each evaluation period, a manager would generate an
overall score for an employee, taking multi-rater feedback
into account. As noted, at the time Plaintiff was selected
for the RIF, his manager was Christopher Renna. The manager
would bring this preliminary numeric rating to a
“rating and ranking session” with other managers
to discuss the rankings for all of the employees in a given
group. The outcome of this process was an overall rating from
1 to 5 (best to worst) for each person. These ratings were
subject to a required distribution put in place by Lockheed
so that the employees could be ranked against one another.
Occasionally, to meet these rating distribution targets, some
employees' scores would be lowered. Managers had
discretion regarding the information ultimately documented in
the final written review as well as the employee's final
rating and ranking.
and 2011 -- the two years preceding his termination --
Plaintiff was rated as a “Basic Contributor, ”
the second lowest possible score. (Pl. Tr. Ex.
“PTX”-4, 6). At trial, Plaintiff testified that
these reviews and the review process were manipulated by
Lockheed as a way to push him out. Plaintiff testified, in
essence, that from as early as 2001, his scores were
artificially lowered to the point that they were inconsistent
with his multi-rater feedback. (See PTX-5, 7). He
also testified and presented evidence that in his later years
at the company, the younger employees in his group,
particularly Reynolds (age 47 at the time of Plaintiff's
termination), received scores that were artificially high
when compared to their multi-rater feedback.
testified that around 2002, the first time he received a
score that he felt was unfairly low, he approached his
manager, Judd, who told him that Hansen, Judd's
supervisor, had stated “Rob's been there too long,
it's time to get rid of him.” Both Judd and Hansen
testified at trial, and both denied that this statement was
ever made. Although Plaintiff testified that Hansen was not
his supervisor at the time of the RIF and that he was not
aware if Hansen played any role in the decision to include
him in the RIF, he also testified that the rankings from one
year would be used as a “starting point” for
future rankings. (Tr. 162:1-3).
trial, Defendant contested both the fact of Plaintiff's
reviews being contrived and whether the reviews were the
basis of his termination. Defendant presented testimony
through both Renna and Kebalo that the RIF was an age-neutral
process taken as a measure to curb rising costs to customers.
Both Renna and Kebalo also testified that Plaintiff was
selected for the RIF due to “workload softness”
-- a current and projected lack of work. Defendant also
presented testimony through Renna that Plaintiff was
“difficult” to work with, leading to bad reviews
and contributing, at least in part, to his lack of work. As
proof that Plaintiff was experiencing “workload
softness, ” Defendant presented an email sent from
Renna to Kebalo in July 2011, warning that Plaintiff would be
going “idle” part-time because some of the
projects on which he was working were “being stopped
for the near future.” (Def. Tr. Ex.
“DTX”-39). iii. Lockheed's
Documentation Plaintiff relied heavily at trial on
documentary evidence, specifically a Power Point presentation
titled “MS2 Workforce Reduction Analyses and
Recommendation” (the “RIF Analysis”).
(PTX-19). The RIF Analysis was prepared by
Lockheed in February 2012 and contained a series of
slides summarizing the reasons for the RIF and the
methodology to be used in carrying it out. The title slide
listed the names of eleven high level Lockheed employees,
including Norm Malnak.
Analysis set forth the “Business Case for [the] 2012
MS2 Reduction.” (See PTX-19 at 1074).
According to this analysis, MS2 had become “top
heavy” with too many upper-level employees and a
“shrinking talent pipeline.” (Id. at
1086). This called for MS2 to “Do 8.4% (479) Upper
Level Exempt Reductions and Hire 185 Entry
Levels.” (Id. at 1074)(emphasis in original).
The stated purpose of this reduction of upper level employees
and influx of entry levels was “Aligning [the]
Engineering Workforce to Future Customer
Affordability, With [the] Right Skills.”
(Id.)(emphasis in original). Lockheed referred to
the end result of this process as a
“re-energized” entry level pipeline.
(Id. at 1079). Multiple witnesses testified at trial
that this “pipeline” tended to refer to younger
Voluntary Layoff Program
consisted of two stages, which Lockheed announced
simultaneously. First, there was a “Voluntary Layoff
Incentive Program” (“VLIP”) through which
employees could voluntarily leave the company and receive a
payout. There was no age requirement for the VLIP, but
according to the RIF, only employees at “Level 3”
-- non “entry-level” -- and above were eligible.
The VLIP served as “risk mitigation for involuntary
selection adverse impact.” (PTX-19 at 1075). In
connection with the VLIP, Lockheed prepared, among other
things, three charts analyzing “employees with a high
probability of accepting VLIP” and an analysis of a
previous RIF. (Id. at 1075, 755). Each of the three
charts divided employees into groups based on age and years
of service with the company. Only employees who were at least
50 years old and had at least 15 years of service were
included in these charts. (Id. at 1081-83). These
charts further highlighted those employees who were at least
60 years old and had been with the company for at least 15
presented testimony through Kebalo that these charts were not
evidence of Lockheed targeting older employees, but were
merely an assessment of those most likely to volunteer. This
analysis was necessary, according to Kebalo, because the
company had to prepare itself for the loss of experienced
employees that this layoff would inevitably bring about. In
fact, Kebalo testified, the company did not desire such a
result, but considered it a threat. To further support its
position that the VLIP was not aimed at older employees,
Defendant presented the testimony of Gillespie -- who had
accepted a voluntary layoff -- that employees interested in
participating in the VLIP had to apply, and that some
employees who applied for the VLIP were rejected. (Tr. at
Involuntary Layoffs/Communities of Interest
conclusion of the VLIP, there was an involuntary
layoff during which certain employees who had not volunteered
were selected for termination. Lockheed prepared a schedule
for the involuntary portion of the RIF that called for
management to take several steps before selecting employees
for involuntary termination. (See PTX-19 at 1076).
The step most critical to this case was the one that required
Lockheed to create “Communities of Interest”
(“COI”), which were groupings of employees based
on their skills and the type of work they were doing. COIs
were further divided by employee “level, ” which
is based on position and years of service, among other
things. Once these COIs were created and employees were
placed into them, managers and directors were to identify
which COIs would be affected by the RIF, create a list of
“critical skills” for each COI, rank the
employees in each COI, and finally select those to be laid
undisputed evidence at trial was that Lockheed, and
specifically Renna, placed Plaintiff in a COI of one. (Tr.
125:21-25). He was placed in the “Digital Design”
COI, and was the only Level 5 employee placed in that group.
This COI was eliminated. Because Renna place Plaintiff into a
COI of one, the RIF's further directives, such as
ranking, became moot. In other words, no one at Lockheed ever
created a list of “critical skills” for Plaintiff
in connection with the RIF, nor did anyone -- or was it
possible to -- rank him within his COI. Lockheed attempted to
justify its placement of Plaintiff into a COI of one by
presenting evidence through Kebalo and Renna that Plaintiff
was the only employee in MS2 doing the type of work he was
doing. They testified that it was not necessary to further
determine Plaintiff's “critical skills”
because his entire COI was subject to “workload
softness” and needed to be eliminated. Plaintiff,
however, disputed this testimony. He testified that
“Digital Design” did not accurately reflect his
skillset or the work he was doing. As noted, Plaintiff was
transferred into Renna's group in 2010, and Renna
testified that he had never made an effort to learn what
skills Plaintiff had developed up to that point. Renna
testified that he “never had a meeting to probe
[Plaintiff's] skills [sic] sets, ” and that he
never had a “conversation” with anyone who had
previously worked with Plaintiff to determine what Plaintiff
was good at. (Id. at 492:4-11).
Judgment as a Matter of Law
motion for judgment as a matter of law may be granted where
“a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party on that issue.” Fed.R.Civ.P. 50(a)(1). If the
Court denies a motion for judgment as a matter of law raised
during trial, the moving party may renew that motion
post-trial under Fed.R.Civ.P. 50(b). In order to preserve the
right to renew a motion for judgment as a matter of law, the
moving party must raise a Rule 50(a) motion with
“sufficient specificity to put the [nonmovant] on
notice” before the case is submitted to the jury.
Williams v. Runyon, 130 F.3d 568, 571-72 (3d Cir.
50 motion “should only be granted if ‘the record
is critically deficient of that minimum quantity of evidence
from which a jury might reasonably afford relief.”
Raiczyk v. Ocean County Veterinary Hospital, 377
F.3d 266, 269 (3d Cir. 2004)(citing Trabal v. Wells Fargo
Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001)).
“The question is not whether there is literally no
evidence supporting the unsuccessful party, but whether
there is evidence upon which a reasonable jury could properly
have found its verdict.” Johnson v. Campbell,
332 F.3d 199, 204 (3d Cir. 2003)(emphasis in original)
(citation and internal quotation marks omitted).
making this determination, ‘the court may not weigh the
evidence, determine the credibility of the witnesses, or
substitute its version of the facts for the jury's
version.'” TransWeb, LLC v. 3M Innovative
Properties Co., 16 F.Supp.3d 385, 391-92 (D.N.J. 2014)
(quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1166 (3d Cir.1993), aff'd, 812 F.3d 1295
(Fed. Cir. 2016)). The Court must “disregard all
evidence favorable to the moving party that the jury is not
required to believe . . . [t]hat is . . . give credence to
the evidence favoring the nonmovant as well as that evidence
supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes
from disinterested witnesses.” Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 151 (2000)(citation
and internal quotation marks omitted).
Liability under the ADEA and the NJLAD
argues that it is entitled to judgment as a matter of law
because (1) Plaintiff failed to establish a prima facie case
of age discrimination under the ADEA or the
NJLAD;(2) even if Plaintiff had established a
prima facie case, Defendant offered a legitimate,
non-discriminatory reason for his termination; and (3)
Plantiff failed to establish that Defendant's proffered
non-discriminatory explanation was pretextual.
relied on circumstantial evidence to establish his age
discrimination claims. Age discrimination claims based on
circumstantial evidence under both the ADEA and the NJLAD are
evaluated under the McDonell Douglas burden shifting
framework. Anderson v. Consol. Rail Corp., 297 F.3d
242, 249 (3d Cir. 2002)(citation omitted); Bergen Comm.
Bank v. Sisler, 157 N.J. 188, 200 (1999). First, to
raise the inference of discrimination, a plaintiff must
establish a prima facie case by showing that he or she was a
member of a protected class who was qualified for the
position at issue and suffered an adverse employment action.
Anderson, 297 F.3d at 249 (citing Showalter v.
University of Pittsburgh Med. Ctr., 190 F.3d 231, 234-35
(3d Cir. 1999); Connors v. Chrysler Financial Group,
160 F.3d at 973-74). Additionally, in the context of an RIF,
a plaintiff must establish that the employer retained a
“sufficiently younger” employee who was
“similarly situated” to the plaintiff.
Anderson, 297 F.3d at 249; Monaco v. Am. Gen.
Assur. Co., 359 F.3d 296, 305 (3d Cir. 2004).
rebut the inference of discrimination created by the prima
facie case, the defendant must “offer evidence that is
sufficient, if believed, to support a finding that it had a
legitimate, nondiscriminatory reason for the
discharge.” Showalter, 190 F.3d at 235
(citations omitted). If the defendant satisfies this burden,
then the plaintiff must establish that the reasons offered by
Defendant are pretextual, and that the actual reason for the
adverse employment action was age discrimination. Fuentes
v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
Court will focus its analysis on whether the evidence was
sufficient for a reasonable jury to find that: Defendant
retained a similarly situated younger employee when it
terminated Plaintiff; Defendant offered a legitimate
non-discriminatory reason for terminating Plaintiff; ...