United States District Court, D. New Jersey
SCHNEIDER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on defendant's “Federal
Rules of Civil Procedure 50(b) and Rule 59 Motion for a New
Trial or, In the Alternative, Amending the Judgment
Dismissing All Claims Against General Nutrition
Corporation” (“motion”) [Doc. No. 74]. The
Court received plaintiff's response [Doc. No. 80] and
defendant's reply [Doc. No. 82]. The Court exercises its
discretion to decide the motion without oral argument. See
Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be
discussed, defendant's motion is denied.
Santos Andujar, began his employment with defendant, General
Nutrition Corporation (“GNC”), in 1999 as a sales
associate. Tr.1 at 115:3-17. Plaintiff was promoted to the
position of store manager in 2001 and remained in that
position until his termination on February 26, 2014 at age
57. Id. at 109:13-110:24; 155:20-116:21. Throughout
his employment with GNC, plaintiff received numerous awards
and accolades from the company. Id. at
139:11-140:25. Defendant classified each store as “A,
B, C or D” based on sales, profits and store growth.
Tr.2 at 313:18-314:18. During plaintiff's employment as a
store manager, he improved his store's classification
from a “D” store to a “B” store. Tr.1
was also evaluated annually for his performance as a store
manager from 2002 to 2014 through defendant's Performance
Evaluation Process (“PEP”). Tr.2 at 232:4-21. The
maximum score possible on the PEP evaluation is 500, with 300
considered to be a “passing” score. Id.
at 232:21-233:1. In 2014, plaintiff's PEP score was 287,
which was considered to be a failing score. Id. at
addition to the PEP, each of defendant's stores is
evaluated annually through an assessment known as a Critical
Point Audit (“CPA”). Id. at 233:2-19.
The passing score on a CPA is 90%. Id. at 234:12-13.
Plaintiff's store received CPA scores of 88% in 2010, 68%
in 2011 and 79% in 2012. Id. at 234:1-235:11. As a
result of the three consecutive failing CPA scores,
plaintiff's regional sales director, Christian Gosseaux
(“Gosseaux”), issued a written warning to
plaintiff on June 21, 2012. Id. at 235:12-236:6. The
following year, in 2013, plaintiff raised his CPA score to
88%. Id. at 246:11-17.
January 23, 2014, Gosseaux presented plaintiff with his 2014
PEP evaluation, on which plaintiff scored 287, and a Red
Store Action Plan. Id. at 251:3-16. Gosseaux
described the Red Store Action Plan as a coaching document
used when GNC “identified a manager who needed to be
put on a plan, . . . or who needed immediate
improvement.” Id. at 248:14-23. According to
Gosseaux, the PEP score and Red Store Action Plan were given
to plaintiff on the same day out of
“convenience.” Id. at 249:1-10. Gosseaux
testified he had already been planning on putting plaintiff
on the Red Store Action Plan and because he was in the store,
he delivered plaintiff's PEP evaluation and the Red Store
Action Plan on the same day. Id. at 249:1-17.
Gosseaux further testified the Red Store Action Plan was a
“stand alone document, ” and it was not meant to
coincide with the PEP. Id. at 251:3-16. The Red
Store Action Plan allowed plaintiff 30 days to make
improvements, while the PEP allowed 60-90 days to make
improvements. Id. Plaintiff also contends the Red
Store Action plan contained various ageist comments,
including reference to plaintiff's “same old
ways” and plaintiff needing to “grow” with
the company. Id. at 251:3-16; 282:16-283:3.
one month after receiving the PEP and being placed on the Red
Store Action Plan, plaintiff was terminated for, according to
Gosseaux, failure to improve the performance of the store
after being placed on the Red Store Action Plan. Id.
at 254:13-19. Plaintiff was replaced by Nicholas Librizzi who
was in his 20s. Id. at 278:1-3.
order to show he was treated differently than other similarly
situated individuals, plaintiff presented a grid listing the
names, age and status of employment of six store managers in
the same region as plaintiff with a PEP score below 300 from
2012 to 2015. See Trial Ex. P6(B). The grid indicates the six
store managers listed were all younger than plaintiff by at
least ten years and none of them were placed on the Red Store
Action Plan or terminated within 30 days of receiving a
failing PEP score. See id.
November 19, 2014, plaintiff filed suit in state court,
alleging wrongful termination based on age discrimination
under the New Jersey Law Against Discrimination
(“NJLAD”). On December 10, 2014, defendant
removed this matter to federal court based on diversity
jurisdiction pursuant to 28 U.S.C. § 1332. See Notice of
Removal [Doc. No. 1]. After fact discovery concluded,
defendant moved for summary judgment arguing plaintiff could
not maintain a claim of discrimination pursuant to the NJLAD
because he was terminated for a legitimate non-discriminatory
reason. Def.'s Mot. for Summary Judgment,
[Doc. No. 34]. The Court denied defendant's motion
finding a genuine issue of material fact existed as to
whether defendant's proffered reason for termination was
pretext. See Andujar v. General Nutrition Corp, C.A.
No. 14-7696(JS), 2017 WL 2323405 (D.N.J. May 26, 2017),
[Doc. No. 40].
trial was conducted on October 24, 25 and 26, 2017. The jury
returned a verdict in favor of plaintiff in the amount of
$123, 926 in back pay, $60, 000 in front pay and $75, 000 in
emotional distress damages. [Doc. No. 63]. Final judgment was
entered on October 30, 2017. [Doc. No. 66]. Plaintiff timely
filed the instant motion seeking judgment as a matter of law
pursuant to Fed.R.Civ.P. 50(b) or a new trial pursuant to
Motion for Judgment as a Matter of Law
Fed.R.Civ.P. 50, a party may move “for judgment as a
matter of law . . . at any time before the case is submitted
to the jury, ” and the court may enter judgment if it
finds a “reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that
issue.” If the motion is not granted, it may be renewed
“[n]o later than 28 days after the entry of judgment .
. . and may include an alternative or joint request for a new
trial under Rule 59.” Fed.R.Civ.P. 50(b). “The
court may, on consideration of the renewed motion, enter
judgment as a matter of law for the moving party, leave the
jury's original verdict undisturbed, or order a new
trial.” Pediatrix Screening, Inc. v. TeleChem
Int'l, Inc., 602 F.3d 541, 546 (3d Cir. 2010)
(citing Fed.R.Civ.P. 50(b)).
Court will only address issues raised in a Rule 50(b) motion
which were first properly raised in a Rule 50(a) motion. See
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,
1172 (3d Cir. 1993) (“In order preserve an issue for
judgment pursuant to Rule 50(b), the moving party must timely
move for judgment as a matter of law . . . pursuant to Rule
50(a), and specify the grounds for that motion.”).
as a matter of law is a sparingly invoked remedy.”
Marra v. Philadelphia Housing Auth., 497 F.3d 286, 300 (3d
Cir. 2007) (internal citation and quotation marks omitted).
Because the jury returned a verdict in favor of plaintiff,
the Court “must examine the record in a light most
favorable to the plaintiff, giving [him] the benefit of all
reasonable inferences, even though contrary inferences might
reasonably be drawn.” In re Lemington Home for the
Aged, 777 F.3d 620, 626 (3d Cir. 2015) (internal
citation and quotation marks omitted). Judgment as of matter
of law following return of a jury verdict is only appropriate
“if, as a matter of law, the record is critically
deficient of that minimum quantity of evidence from which a
jury might reasonably afford relief.” Trabal v.
Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d
Cir. 2001) (internal citation and quotation marks omitted).
“The question is not whether there is literally no
evidence supporting the party against whom the motion is
directed but whether there is evidence from which the jury
could properly find a verdict for that party.”
Jaasma v. Shell Oil Co., 412 F.3d 501, 503 (3d Cir.
2005) (internal citation and quotation marks omitted).
defendant made a Rule 50(a) motion at the close of
plaintiff's presentation of the evidence and again after
its own presentation of the evidence. See Tr.2 at
219:7-220:16; 323:22- 324:11. In its Rule 50(a) motion at the
close of plaintiff's case in chief, defendant argued the
Court should enter judgment as a matter of law in its favor
because plaintiff admitted during his testimony the reason he
was fired was his poor performance and, if the Court declined
to enter judgment on those grounds, it should enter judgment
as a matter of law on the issue of front pay because
plaintiff did not submit sufficient evidence to support an
award of front pay. Id. at 219:7-220:16. In its Rule
50(a) motion at the close of its presentation of evidence,
defendant argued the Court should enter judgment as a matter
of law limiting damages because it was discovered during
plaintiff's deposition that he lied on his resume, an
offense for which an employee would be discharged and thus,
damages should be limited to only the period prior to the
testimony. Id. at 323:22-324:11. The Court denied
both motions and the case was submitted to the jury.
Id. at 224:13-225:16; 326:13-327:14. When
considering plaintiff's present Rule 50(b) motion, the
Court will only consider the issues defendant
preserved. See Lightning Lube, 4 F.3d at
1172. Thus, any arguments raised in this motion not
previously raised in the Rule 50(a) motion will only be
considered in the context of defendant's motion for a new
Motion For a New Trial
a motion for judgment as a matter of law pursuant to Rule
50(b), a motion for a new trial pursuant to Rule 59 does not
require any pre-verdict motions. After a jury trial, the
Court may grant a new trial “for any reason for which a
new trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1)(A). The Court may
grant a new trial “purely on a question of law”
or to correct a previous ruling “on a matter that
initially rested within the discretion of the court.”
Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir.
1993) (internal citation and quotation marks omitted).
Court may also grant a new trial where it “believes the
jury's decision is against the weight of the
evidence.” Id. at 1290. However, a Court
should grant a motion for a new trial only when “the
great weight of the evidence cuts against the verdict”
and “a miscarriage of justice would result if the
verdict were to stand.” Leonard v. Stemtech
Int'l Inc., 834 F.3d 376, 386 (3d Cir. 2016)
(quoting Springer v. Henry, 435 F.3d 268, 274 (3d
Cir. 2006)). The Court must not “substitute its
judgment of the facts and the credibility of the witnesses
for that of the jury.” Id. (internal citation
and quotation marks omitted).
Rule 50(b) motions, a motion for a new trial does not require
any pre-verdict motions. Accordingly, when deciding
defendant's motion for a new trial, the Court will
consider all of defendant's arguments presented in this
Defendant's Motion for Judgment as a Matter of Law or a
moves for judgment as a matter of law or a new trial on the
following grounds: 1) the Court erred in admitting the
purported comparator evidence, 2) the Court erred in
admitting Exhibit P4(A) into evidence, 3) the curative charge
given after defendant's closing was in error and
prejudiced defendant, 4) the damages award was not supported
by the evidence, 5) empaneling Juror 8 was error, and 6) the
verdict was against the weight of the evidence. For the
reasons set forth below, all of defendant's arguments are
Comparator Evidence-Exhibit P6(B)
noted above, plaintiff submitted evidence of six GNC managers
within the same region around the time of plaintiff's
dismissal who, like plaintiff, scored below 300 on the PEP
evaluation. Trial Ex. P6(B). Notably, none of the managers
was terminated within 30 days or placed on a Red Store Action
Plan, a fact plaintiff used as evidence he was treated
differently than other similarly situated employees.
contends the Court erred in admitting the proffered
comparator evidence because none of the proffered comparators
were similarly situated to plaintiff. Def.'s Br. at 11.
Defendant also contends the inquiry into whether individuals
are similarly situated is one for the Court, not the jury.
Id. at 9.
for discrimination may be supported in a number of ways,
including, as here, comparator evidence of similarly situated
individuals. See Wilcher v. Postmaster Gen., 441
Fed.Appx. 879, 881 (3d Cir. 2011) (citing Simpson v. Kay
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d
Cir. 1988)). “‘[T]here is no precise formula to
determine whether an individual is similarly situated to
comparators, ' and it is generally a question of fact for
the jury.” Simmermon v. Gabbianelli, 932
F.Supp.2d 626, 633 (D.N.J. 2013) (quoting Fiala v.
Bogdanovic, C.A. No. 07-2041, 2009 WL 3260585, *4 (M.D.
Pa. Oct. 8, 2009)).
“similarly situated does not mean identically
situated.” Opsatnik v. Norfolk Southern Corp.,
335 Fed.Appx. 220, 223 (3d Cir. 2009). A determination
whether an individual is similarly situated to the plaintiff
takes into account several factors, including job function,
level of supervisory responsibility, salary and the nature of
the misconduct engaged in. Wilcher, 441 Fed.Appx. at
882; Ewell, 94 F.Supp.3d at 625.
plaintiff presented evidence of managers in the same region
as plaintiff (Region 22) for the period of 2012 to 2015 who,
like plaintiff, scored below 300 on their evaluations. Given
that all of these individuals were managers, the jury could
infer they had the same or similar job functions and the same
level of supervisory responsibilities as plaintiff. Defendant
did not contest this point. Further, the act that allegedly
resulted in plaintiff's termination was his poor job
performance and all of the managers submitted as comparators
received a failing score (below 300) on their PEP
evaluations, just as plaintiff. Accordingly, the jury (and
the Court) could find the comparators were “similarly
situated to plaintiff in all relevant
argues Wilcher v. Postmaster Gen., 441 Fed.Appx.
879, 882 (3d. Cir. 2011) and Ewell v. NBA Props., 94
F.Supp.3d 612, 625 (D.N.J. 2015) support the proposition that
the comparators were not similarly situated to plaintiff, and
thus, Exhibit P6(B) should not have been submitted to the
jury. Def.'s Br. at 11. However, these cases are
Wilcher, the Third Circuit examined a District Court's
entry of summary judgment in favor of the defendant-employer.
441 Fed.Appx. at 879. The Court determined the evidence
plaintiff submitted to show pretext for discrimination was
not sufficient to present a question of fact for the jury.
Id. at 882-83. The Court ruled the seven employees
the plaintiff offered as comparators were not similarly
situated because they held different positions, had different
job responsibilities and were subjected to disciplinary
action for different types of misconduct than the plaintiff.
Id. Here, unlike Wilcher, all of the comparators
were managers within the same region as plaintiff and had the
same or similar job responsibilities. In further contrast to
Wilcher, all of the comparators in this case were similar in
that they all had PEP scores under 300. The fact that the
comparators were not identical to plaintiff in every respect
does not disqualify them.
Ewell, the Court granted summary judgment in favor of the
defendant-employer, finding the plaintiff did not present
sufficient evidence to show pretext for discrimination. 94
F.Supp.3d at 625. The plaintiff presented evidence of three
comparators, who he claimed engaged in conduct similar to the
conduct for which he was discharged. Id. However,
the Court disagreed, finding the proffered comparators had
engaged in conduct dissimilar to the conduct for which the
plaintiff was discharged. Id. at 631.
as noted above, the proffered reason for plaintiff's
discharge was his poor job performance. All of the managers
proffered as comparators scored below 300 on the PEP, just as
plaintiff had. Thus, unlike in Ewell where all of the
proposed comparators engaged in different types of
misconduct, the jury could find all of the proposed
comparators engaged in the same type of
“misconduct” as plaintiff-they all scored below
300 on the PEP.
argues the question whether the proffered comparators are
similarly situated should be decided by the Court, not the
jury. Def.'s Br. at 9. Thus, defendant contends, the
Court's statement that the question was one for the jury
was error. Id. Defendant's contention is
unsupported. The question whether proffered comparators are
similarly situated to plaintiff is generally a question of
fact left for the jury. See Simmermon, 932 F.Supp.2d at 633
(stating the question whether proffered comparators are
similarly situated to plaintiff “is generally a
question of fact for the jury”); see also Catalane
v. Gilian Instrument Corp., 271 N.J.Super. 476, 497-98
(App.Div. 1994) (finding no error occurred when trial court
left the question of whether plaintiff was similarly situated
to other employees to the jury).
support of its argument, defendant cites Wilcher, Ewell
and McCullers v. Napolitano,427 Fed.Appx. 190, 195 (3d
Cir. 2011). However, none of these cases supports
defendant's proposition. First, none of the cases
explicitly states the question of whether comparators are
similarly situated is for the Court, not the jury. It is true
the courts in Wilcher, Ewell and McCullers examined whether
the proffered comparators were similarly situated. However,
the examination was made in order to assess whether plaintiff
presented sufficient evidence of pretext to survive a motion
for summary judgment. It is proper for a court to exclude
comparator evidence where it is clear no reasonable jury
could find the similarly situated requirement has been met.
Simmermon, 932 F.Supp.2d at 633, (citing McDonald v.
Vill. of Winnetka,371 F.3d 992, 1002 (7th Cir. 2004)).
Accordingly, in making such a determination, a court must
necessarily examine whether the proffered comparators are