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September 30, 1986

Joseph Dominic, Plaintiff,
Consolidated Edison Company Of New York, Inc., Defendant

The opinion of the court was delivered by: WALKER

WALKER, District Judge:


 The defendant in this case, Consolidated Edison Company of New York, Inc. ("ConEd"), has moved under Fed. R. Civ. P. 50(b) and 59(a) for a judgment notwithstanding the verdict or for a new trial, in lieu of a jury verdict finding ConEd in violation of the Age Discrimination in Employment Act ("ADEA"). The jury awarded Plaintiff Joseph Dominic $67,902 in back pay and $378,000 in front pay. ConEd claims that the jury's findings that the company fired Dominic in retaliation for his opposition to age discrimination and that ConEd willfully violated Dominic's rights is wholly unsupported by the evidence. ConEd also takes the position that in a case under ADEA, the court, and not the jury, must decide whether to award front pay and in what amount. Finally, Dominic has submitted an application for attorney's fees which ConEd also contests.


 ConEd hired Dominic in 1972, when he was 38 years old, as a management employee. During the time period relevant to this action, from May 1981 through June 1983, Dominic held the position of Management Training Coordinator within the Power Generation Services organization of ConEd. His duties included the development, coordination and management of training programs within Power Generation Services, the monitoring of these programs, and some record-keeping activities.

 Until sometime in 1982 his supervisors at the company returned consistently positive evaluations of Dominic's work, but in that year relations between Dominic and his superiors at ConEd deteriorated markedly. Beginning in 1982 his performance ratings fell and he was denounced for his work both verbally and in writing. The Director of Power Generation Services, Daryl Wall, was his most vociferous critic. The dissension between Wall and Dominic escalated until June of 1983 when she recommended that ConEd terminate its employment relationship with Dominic. The reasons underlying the tension between Wall and Dominic form the basis for Dominic's law suit under the ADEA.

 Shortly after he was discharged from the company Dominic commenced an action under the ADEA, alleging that ConED had fired him because of his age or in retaliation for his opposition to the company's alleged discriminatory acts. Trial began on January 13, 1986 and was completed on January 24, 1986. ConEd defended the suit by arguing that it had discharged Dominic because his performance was unacceptable. The jury, however, found that although ConEd had not fired Dominic because of his age, the company had, indeed, terminated his employment in retaliation for his accusations of age discrimination. Moreover, the jury decided that ConEd's conduct was willful and then awarded Dominic $67,902 in back pay and $378,000 in front pay.


 The Age Discrimination in Employment Act prohibits employers from refusing or failing to hire and from discharging or otherwise discriminating against an employee because of his age or in retaliation for his opposition to age discrimination. 29 U.S.C. § 623. An employer, however, may take these actions, otherwise unlawful under the Act, for reasons unrelated to age or for good cause. Id. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) provides the analytical framework for determining whether a defendant has violated the Civil Rights laws, including the ADEA. Under the McDonnell Douglas rule, the plaintiff must first make a prima facie showing of age discrimination under the ADEA. The defendant then has the opportunity to show that the contested action was taken for a non-discriminatory reason. Finally the burden of proof shifts back to the plaintiff to show that the reasons put forth by the defendant were merely a pretext for discrimination. The issue under the ADEA raised by the parties here is whether the Court should grant a judgment notwithstanding the verdict or a new trial because Dominic failed to introduce any evidence at trial to show that ConEd's claimed motive for firing Dominic was a pretext for retaliatory discharge.

 A. Judgment Notwithstanding the Verdict

 In deciding whether to grant ConEd's motion for a judgment notwithstanding the verdict, the Court begins with the presumption that a jury verdict following a full trial on the merits ordinarily must not be disturbed, particularly where the credibility of witnesses is an essential aspect of the case. The standard in the Second Circuit for granting a judgment notwithstanding the verdict 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." Pena v. Brattleboro Retreat, 702 F.2d 322, 323 (2d Cir. 1983), quoting Sirota v. Solitron Devices, Inc., 673 F.2d 566, 573 (2d Cir. 1982).

 In support of its motion for a judgment notwithstanding the verdict, ConEd points to several pieces of evidence that support the company's assertion that Dominic was fired due to legitimate complaints about his performance and not in retaliation for his assertion of his rights. Daryl Wall, as the principle witness in behalf of ConEd, testified at length that she found Dominic's work thoroughly unsatisfactory. She identified numerous errors in the plaintiff's work, several of which he admitted to making, his belated completion of assignments and their poor quality, and her repeated, unsuccessful attempts to extract a stronger performance from him. ConEd also introduced a detailed written list of her criticisms and explanations of areas in which he needed to improve his work which she compiled while acting as Dominic's supervisor. In January 1983 she gave him a low rating for his 1982 performance and told him she would meet with him again in 90 days for further discussions of his work. She testified that at the time she made it clear that she expected marked improvement from him in that time. She also testified that due to his failure to respond to specific criticism he received at the January meeting she could see no reason to wait until the full 90 days had expired before calling this second meeting. Accordingly, on March 17, 1983 she met again with Dominic. She confronted him with another list of his deficiencies which ConEd submitted as evidence in the trial. ConEd also points to several pages detailing the reasons for her dissatisfaction with Dominic's performance written by Wall shortly before she recommended Dominic's termination. ConEd concluded its litany of Dominic's deficiencies by asserting that at trial he had introduced no probative evidence to demonstrate that Wall's criticism and eventual dismissal of him was a pretext for retaliation against his complaints of age discrimination.

 In arguing that Dominic made no showing that ConEd's claimed motives were a pretext, however, ConEd overlooks several important facts introduced by Dominic. For instance, Dominic produced evidence that his 1981 performance rating had been lowered without his knowledge shortly after his first complaint of age discrimination. This supports an inference of retaliation quite as easily as it does company dissatisfaction with his work. He also refuted Wall's explanation of non-retaliatory behavior by introducing evidence from which inferences could be drawn that she had deliberately deluged him with assignments, making it impossible for him to perform up to her expectations, with the intention that he fail. He showed that Wall held his March 17, 1983 performance review several weeks in advance of its originally scheduled date and argued to the jury that the date change was made without just cause. He argued that the early performance appraisal had the intended effect of cutting short the time he had been allotted to complete the work required of him before the review and rendered satisfactory performance on his part impossible. He also offered proof that Wall transferred him to an office with poor working conditions and subjected him to constant nagging criticism. Based on this, and other evidence, the jury could reasonably have concluded that ConEd's asserted reasons for firing Dominic were a pretext for retaliation.

 As to the jury's finding that ConEd's actions were willful, here too, the plaintiff introduced enough evidence to support the verdict in his favor. The Court charged the jury that to find willfulness, Dominic must prove by a preponderance of the evidence that ConEd knew its actions violated the ADEA, or showed reckless disregard as to whether it was in violation of ADEA. The evidence that Dominic introduced to show ConEd's purposeful retaliatory behavior, coupled with evidence showing ...

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