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KOYEN v. CONSOLIDATED EDISON CO. OF NEW YORK

March 24, 1983

KENNETH A. KOYEN, Plaintiff,
v.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

 Plaintiff was employed by the defendant Consolidated Edison Company ("Con Ed") in its editorial department in July 1973 when he was 58 years of age. His job required writing corporate, consumer and stockholder communications, position papers, speeches for executives and booklets. His services were terminated in April 1981 when he was 66. Thereupon he commenced this action, charging that his discharge was because of age in violation of the Age Discrimination in Employment Act ("ADEA" or "the Act"). *fn1" The Act permits an employer to discharge an employee based on reasonable factors other than age or for good cause. *fn2" The defendant contends that he was discharged solely because of unsatisfactory work performance. The jury was instructed as to the burden of proof concepts enunciated in McDonnell Douglas Corp. v. Green3 and reiterated in Texas Dep't of Community Affairs v. Burdine.4 It reported a special verdict that plaintiff had sustained his burden of proof that "age was a determinative factor for his discharge."

 The defendant now moves pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for judgment notwithstanding the verdict ("n.o.v."). The plaintiff opposes and requests that the Court fix the amount of damages, an issue which the parties left for its determination.

 The standard in this Circuit applicable to a motion for a judgment n.o.v. is whether "the evidence, viewed in the light most favorable to the non-movants without considering credibility or weight, reasonably permits only a conclusion in the movants' favor." *fn5" Con Ed contends that plaintiff failed to satisfy one of the four elements of a prima facie ADEA case -- to wit, that he was qualified for the position at the time of his discharge. *fn6" In addition, it contends that he failed to carry his ultimate burden of proving that age was a determining factor in his discharge. *fn7"

 As to its first contention that plaintiff failed to establish that he was qualified for the position at the time of his termination, *fn8" Con Ed stresses that for the last eight months of plaintiff's employment, his supervisors considered his work unsatisfactory; that he was formally told of such dissatisfaction on a number of occasions; and that Con Ed officers had complained to plaintiff's supervisors on several occasions about the quality of plaintiff's work. This was all before the jury. Also before the jury was evidence that plaintiff had extensive writing experience; that from the date of his employment through the next seven years his work was judged to be satisfactory by his different supervisors; that on three occasions supervisors considered his work to be excellent; and that even during the last year of his employment officers of the defendant who had given him specific assignments found his work satisfactory. In the face of this conflicting evidence, it is clear that a judgment n.o.v. is precluded. It was the jury's province to resolve the dispute, and their determination cannot be considered unreasonable in light of the evidence presented.

 The defendant's further contention that the jury could not reasonably have found that age was a determinative factor in Con Ed's decision to terminate him is similarly without substance. While it is true that those who made the decision to discharge plaintiff testified that it was based solely because of his unsatisfactory work performance in the last eight or nine months of his service and each denied that age was the determining factor, the jury was not bound to accept this at face value. *fn9" The jury had a right to weigh their denial against other evidence, which included the consistent satisfactory ratings over an seven-year period up to approximately his 65th birthday; that on one occasion, a Con Ed supervisor referred to him as "an old man"; *fn10" and that on another, that supervisor stated that "Koyen was approaching 65, and [Con Ed] had to do something about it." *fn11" Defendant attempted to rebut this evidence through explanations tending to show that the statements were innocuous and the timing coincidental, and by stressing that plaintiff was discharged because of his poor work performance. The jury could have accepted this view, but did not. It was its function "to select from among conflicting inferences and conclusions that which it consider[ed] most reasonable." *fn12" The issue is not whether defendant's explanations are persuasive to the Court, *fn13" but whether the jury could have reasonably rejected it and found in plaintiff's favor. Additionally, there was evidence from which the jury could find that plaintiff's discharge was to make way for, and to absorb the salary of, a former employee who had been rehired just two months before plaintiff's discharge, which would permit a reasonable inference that the reason assigned for plaintiff's discharge was a pretext. The evidence stated above is sufficient to support the verdict rendered. Accordingly, the defendant's motion for a judgment n.o.v. is denied.

 DAMAGES

 A. Back Salary and Other Pecuniary Losses

 The parties have computed plaintiff's back salary and benefits from the date of discharge to the date the jury returned its verdict, December 3, 1982, in the sum of $52,645.20. Plaintiff, however, asserts that he is entitled to an additional $4,312 *fn14" based upon salary increases he would have received but for Con Ed's unlawful age discrimination against him. The defendant responds that the jury only determined that his discharge was based on age discrimination but did not decide that his adverse performance ratings were discriminatory or based on his age; accordingly, it contends that his unsatisfactory ratings in his last year of employment would not have entitled him to salary increases even had he not been discharged. This narrow reading disregards the reality of the jury's verdict. The jury was instructed that in order to return a verdict for plaintiff, it had to find defendant's contention that "the reason for plaintiff's discharge . . . was a deterioration in the quality of [his] work performance . . . was not the real reason, but only a pretext or an excuse for discrimination." *fn15" Thus, the jury necessarily found that the defendant's claim of deterioration of the quality of plaintiff's work was pretextual. In addition, the "grant[ing] of an increase in wages or salary is a normal incident of the way of life in the industrial and commercial world." *fn16" Thus, plaintiff is awarded a total of $56,957.20 in back wages and benefits, inclusive of anticipated salary increases.

 B. Liquidated Damages

 In addition to the foregoing, plaintiff seeks liquidated damages, which are defined as an amount equal to the pecuniary losses sustained by way of lost wages, salary increases and other benefits of employment -- in other words, the doubling of the pecuniary loss resulting from the violation of the Act. *fn17" The ADEA authorizes the imposition of liquidated damages " only in cases of willful violations." *fn18" There is no automatic doubling of pecuniary damages, *fn19" as in the instance of a violation of the Fair Labor Standards Act ("FLSA"), *fn20" whose remedies, with certain exceptions, are incorporated by the ADEA. *fn21"

 In authorizing the imposition of liquidated damages in the instance of a willful violation of the Act, Congress did not define the term "willful" and the legislative history sheds no clear light on what was intended. *fn22" "Willful," as used in various statutes, "is a word of many meanings, its construction often being influenced by its context." *fn23" Our Court of Appeals has not passed upon the precise issue under the ADEA. Those Courts that have, differ as to the interpretation of the term. *fn24" The basic divergence is whether a specific intent to violate the Act -- that is, knowledge of the illegality of the act of discrimination -- is required before liquidated damages may be imposed. This Court subscribes to the view that to entitle plaintiff to receive liquidated damages he must establish that the defendant acted with knowledge of the illegality of his action.

 In this case the Court instructed the jury on the issue of willfulness, and the special verdict that was prepared contained a separate finding as to that issue. *fn25" However, after the Court had completed its charge, counsel for the parties agreed that the factual issue of willfulness be withdrawn from the jury and be determined by the Court. *fn26" Thus the jury decided only that age was a determinative factor for plaintiff's discharge.

 The instruction to the jury on the withdrawn issue was "whether the defendant deliberately, intentionally and knowingly discharged plaintiff because of his age, and that the defendant knew or should have known such conduct was unlawful." *fn27" The Court adheres to that formulation as an essential element to support an award of liquidated damages. The very fact that Congress, aware that in the instance of a FLSA violation there was an automatic doubling of the pecuniary charge, specified that liquidated damages in the ADEA cases could be recovered " only in instances of willful violations," leaves no room to doubt that more was required than proof that age was a determining factor for plaintiff's discharge ...


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