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March 30, 1984

MARTY STEINBERG and GENE D'ARPE, Plaintiffs, against ST. REGIS/SHERATON HOTEL, Defendants.

The opinion of the court was delivered by: GOETTEL


The Court is confronted in this employment discrimination case with two motions which follow closely upon the heels of a jury verdict in favor of the defendant. In the first motion, the plaintiffs seek a new trial, based on a claim that the Court made erroneous evidentiary rulings during the trial. In the second motion, the prevailing defendant seeks attorney's fees.

 The complaint contained two claims for relief. The first was a claim that the defendant, St. Regis/Sheraton Hotel (the "Hotel"), had discriminatorily discharged plaintiff Steinberg upon the basis of his religion (Jewish) and plaintiff D'Arpe on the basis of his national origin (Italian), in violation of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17 (1976). The second claim was that the plaintiffs had been discriminatorily discharged on the basis of their age, in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. §§ 621-34 (1982).

 The plaintiffs were entitled to a jury trial for their age discrimination claim but not for their Title VII claim. When the defendant moved for a bifurcated trial, the Court denied the motion but did so with the proviso that evidence relating solely to the Title VII claim would be presented to the Court out of the hearing of the jury and, for the most part, after the jury had begun deliberating on the age discrimination claim. As it turned out, however, this scenario was played out only half way. Once the jury retired to deliberate on the ADEA claim and the plaintiffs were directed to go forward with whatever evidence remained as to the Title VII claim, they moved to withdraw that claim, with prejudice. The Court granted the motion, even though the last-minute abandonment of the claim caught both the Court and the defendant by surprise.

 Plaintiffs' Motion for a New Trial

 During the trial the plaintiffs offered crudely drawn charts showing the names and ages of those serving as the Hotel's department heads at the start of the plaintiffs' employment as well as the names and ages of the ultimate successors to all of those department heads who were later replaced. The defendant objected to these charts on numerous grounds, including the fact that the great majority of the individuals who had left the Hotel during the relevant period had not been discharged, but rather either had been transferred to other hotels in the Sheraton chain or had resigned. Because of this objection, the Court required the charts to be amended to include the reasons for the employees' departures. After the plaintiffs so amended the charts, they stated that they wished to have certain of the employees who were listed as having voluntarily resigned testify that they had, in fact, been forced to resign and replaced by younger employees.

 The plaintiffs now contend that during the trial the Court "consistently and regularly refused to permit testimony with respect to persons less than 40 years of age." Sedler Affidavit at 2. They also contend that evidence concerning forced resignations of persons under 40 would have been appropriate evidence to impeach the credibility of the Hotel's records.

 The plaintiffs' description of the Court's ruling concerning these matters is inaccurate. The Court did not forbid testimony from persons under 40 (and, indeed, the age of the witnesses was unimportant per se). The actual, narrow ruling of the Court was that the plaintiffs would not be permitted to introduce testimony from persons under 40 concerning their belief that they themselves had been forced to resign so that they could be replaced with younger people, because such evidence would be both confusing and prejudicial. In addition, the Court gave the plaintiffs the opportunity to make a specific offer of proof as to the testimony of any such witness so that the Court could determine on an individual basis whether the probative value of the evidence offered exceeded the negative factors noted above.

 The plaintiffs, however, never made any offers of proof, foregoing the opportunity left open by the Court, and thereby placed themselves in an extremely weak position to argue at this time that the Court did make a final ruling against the admission of the desired testimony. Furthermore, even if the plaintiffs had made a proper offer of proof with respect to one or more former employees who were in their 20's or 30's when they left the Hotel's employ and who would testify that the Hotel had forced them to resign and, in their opinion, had done so in order to replace them with even younger persons, their testimony would have had little, if any, probative value and almost certainly would have been confusing to the jury as well as unfairly prejudicial to the defendant. First of all, persons under 40 are not members of the class protected under the ADEA, see 29 U.S.C. § 631(a) (1982), and, although testimony as to their treatment is not directly relevant, it might easily be perceived as being so by a jury. As such, it should have been excluded under Rule 403 of the Federal Rules of Evidence.

 Secondly, the admission of this irrelevant testimony would have only aggravated the problem created by the Court's having already admitted statistical evidence concerning the ages of the ultimate successors to the original department heads. Those statistics probably should not have been allowed by the Court (and would not have been but for representations of proof made by the plaintiffs' counsel that were never fulfilled), since comparative statistics must be relevant and menaingful, see, e.g., Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 620, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974), yet the statistics offered at trial were not. Contrasting hiring ages with termination ages "is virtually useless in any realistic analysis of a claim of disparate treatment because of age." Pirone v. Home Insurance Co., 559 F. Supp. 306, 312 (S.D.N.Y. 1983) (quoting Laugesen v. Anaconda Co., 510 F.2d 307, 313 n.4 (6th Cir. 1975)). It is "the natural order of things" that new employees on the job are younger than the persons they replace, particularly where the persons replaced have been employed for a number of years and are by necessity older. Id. Moreover, to add to these statistics proof that persons in their 20's and 30's were being discriminatorily terminated from their employment would have been to undercut logically the plaintiffs' claim that the Hotel was discriminating against individuals over 40. See, e.g., Kahn v. Pepsi Cola Bottling Group, 547 F. Supp. 736, 739 (E.D.N.Y. 1982) (that younger employees were dismissed along with plaintiff refuted his claim of age discrimination under the ADEA).

 Finally, the contention that plaintiffs should be allowed to introduce evidence contradicting the defendant's records for purposes of impeaching the defendant is frivolous. It was the plaintiffs who offered the records in the first place. Hence, what they were trying to do was to impeach their own evidence on what was clearly a collateral matter.

 Age discrimination, in general, is a matter that the Court does not take lightly; however, for all the reasons discussed above, the plaintiffs' challenge to the Court's evidentiary rulings is found to be unpersuasive, and their motion for a new trial must be denied.

 Defendant's Motion for Attorney's Fees

 We now turn to the issue of the defendant's application for attorney's fees. This was clearly one of the most frivolous employment discrimination actions ever brought. The fact that it survived a summary judgment motion merely indicates that at the time that motion was brought, though the case seemed very weak, there did appear to be genuine issues of fact sufficient, under the stringent standards of this circuit, to warrant denial of the motion. Indeed, the unfortunate irony of this case is that by giving the plaintiffs the benefit of the doubt as to the claims of proof that they made in their ...

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