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Andujar v. General Nutrition Corp.

United States District Court, D. New Jersey

February 28, 2018

SANTOS ANDUJAR, Plaintiff,
v.
GENERAL NUTRITION CORPORATION, Defendant.

          OPINION

          JOEL SCHNEIDER UNITED STATES MAGISTRATE JUDGE.

         This 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.[1]

         Background[2]

         Plaintiff, Santos Andujar, began his employment with defendant, General Nutrition Corporation (“GNC”), in 1999 as a sales associate. Tr.1 at 115:3-17.[3] 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.[4] During plaintiff's employment as a store manager, he improved his store's classification from a “D” store to a “B” store. Tr.1 at 115:17-116:15.

         Plaintiff 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 247:21-248:4.

         In 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.

         On 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.

         Approximately 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.

         In 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.

         On 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.[5] 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].

         A jury 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 Fed.R.Civ.P. 59.

         Discussion

         A. Motion for Judgment as a Matter of Law

         Under 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)).

         The 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.”).

         “Judgment 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).

         Here, 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.[6] 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 trial.

         B. Motion For a New Trial

         Unlike 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).

         The 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).

         Unlike 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 motion.

         C. Defendant's Motion for Judgment as a Matter of Law or a New Trial

         Defendant 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 rejected.

         1. Comparator Evidence-Exhibit P6(B)

         As 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.

         Defendant 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.

         Pretext 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)).

         Notably, “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.

         Here, 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 respects.”[7]

         Defendant 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 distinguishable.

         In 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.

         In 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.

         Here, 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.

         Defendant argues the question whether the proffered comparators are similarly situated should be decided by the Court, not the jury. Def.'s Br. at 9.[8] 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).

         In 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 ...


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