not only a preference for younger employees in the hiring
process, but also an aversion by management ("we") for older
established workers which could reasonably be construed as
relating to termination decisions, or at least to the phase
out or "managing out" process said to have occurred in this
That the statements were purportedly made by King rather
than by those directly responsible for plaintiff's termination
and did not expressly concern positions in plaintiff's job
category is noteworthy. However, these facts are not
dispositive given that King was an executive of the defendant
company whose position concerned personnel policy. No closer
connection is necessary. See, e.g., McNeil v. Economics
Laboratory, Inc., 800 F.2d 111, 116-117 (7th Cir. 1986), cert.
denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987)
(nexus between comments and action taken with respect to
plaintiff may be inferred); Robb v. Chemetron Corp., 17 Fair
Empl. Prac.Cas. (BNA) 1535 (S.D. Texas 1978) (same). These
statements are admissible.
The proffered statistical evidence regarding defendant's
hiring practices is not relevant to the decision to terminate
plaintiff whether taken in isolation or in the context of the
other offered proof. Newly hired employees are always likely
to be younger than established employees or those leaving the
company, irrespective of age-related discrimination. See, e.g.,
Kier v. Commercial Union Ins. Co., 808 F.2d 1254, 1258 (7th
Cir.), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d
528 (1987) (replacement of older workers with younger ones
"represents the normal course of employment histories, and is
nothing to marvel at"); Laugesen v. Anaconda Co., 510 F.2d 307,
313 n. 4 (6th Cir. 1975) ("absent any discriminatory intent,
discharged employees will more often than not be replaced by
those younger than they, for older employees are constantly
moving out of the labor market, while younger ones move in.");
Steinberg v. St. Regis/Sheraton Hotel, 583 F. Supp. 421, 423
(S.D.N.Y. 1984) (Goettel, J.) (contrasting hiring ages with
termination ages is "virtually useless in any realistic
analysis of a claim of disparate treatment because of age")
(quoting Pirone v. Home Ins. Co., 559 F. Supp. 306, 312
(S.D.N.Y.) (Carter, J.), aff'd mem., 742 F.2d 1430 (1983)).
Significantly, if plaintiff offered statistical proof which
compared the ages of those hired before and after the alleged
adoption of the "fast track" policy, such evidence might be
relevant to the case at hand. Such a comparison, if it tended
to show an increase in the hiring of "youngsters," would be
probative of plaintiff's thesis, at least when combined with
plaintiff's termination data. Plaintiff's proffered hiring
evidence does not approach this level of sophistication and
must be excluded as irrelevant. Mayor of Philadelphia v.
Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323,
1333, 39 L.Ed.2d 630 (1974); Steinberg v. St. Regis, supra, 583
F. Supp. at 423.
Plaintiff's proffered discharge data is another matter.
Plaintiff seeks to present statistical evidence that although
the ratio of employees not protected by the ADEA to protected
employees in the relevant workforce was 50:15, 100% of those
"managed out" over a three-year period were over age 40 and
80% were over age 50.*fn4 This type of comparison is clearly
relevant to the issue of discriminatory discharge. See, e.g.,
Pirone v. Home Ins. Co., supra, 559 F. Supp. at 312. While there
are undoubtedly legitimate as well as discriminatory factors
which might explain this disparity, there is no doubt that this
evidence, if believed, would support an inference of
discrimination when juxtaposed with plaintiff's other
Defendant also challenges the relevance of plaintiff's
statistical showing based on the size of the pertinent sample.
Although this is clearly a concern whenever a pattern
of discriminatory behavior is alleged, Mayor of Philadelphia v.
Educational Equality League, supra, 415 U.S. at 621, 94 S.Ct.
at 1333-34; Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir.
1984), the employee pool and brief time frame at issue here are
of probative value and are admissible. See, e.g., Poklitar v.
CBS, Inc., 652 F. Supp. 1023, 1028 (S.D.N.Y. 1987) (Walker, J.)
(four of eight employees fired were over age forty while all
five employees hired were under forty).
Finally, defendant asserts that evidence regarding the
employment histories of several former employees allegedly
"managed out" of PepsiCo for discriminatory reasons is not
relevant to the employment decision which affected plaintiff.
Although such witnesses clearly may not "give subjective
evaluations of their own and of their fellow [employees']
performance without furnishing the bases for their
evaluations," Haskell v. Kaman Corp., supra, 743 F.2d at 121,
testimony or other evidence regarding discriminatory treatment
of other employees would be probative of a discriminatory
termination policy such as the one alleged here. Stumph v.
Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985); Danner
v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971)
(Title VII context).
In sum, the court finds that statistical evidence regarding
plaintiff's hiring practices is irrelevant and must be
excluded. The probative value of plaintiff's proffered
evidence of King's statements and subsequent letter in
Business Month, statistical evidence of terminations, and
evidence relating directly to discriminatory action against
other employees allegedly "managed out" of PepsiCo outweighs
any potential prejudice to defendant and is admissible.
In support of its "motion for severance"*fn6 of plaintiff's
state law claim from his ADEA claim, defendant argues that
trying all claims together will confuse the jury and will
result in the jury being prejudicially influenced by evidence
of plaintiff's emotional distress.*fn7 Plaintiff responds
that the risk of confusion or prejudice is minimal and does
not warrant separate trials, particularly when compared with
the inconvenience, delay and expense of separate proceedings.
Although the court has broad discretion to order issues in
a single case tried separately, Gonzalez-Marin v. Equitable
Life Assur. Soc., 845 F.2d 1140, 1145 (1st Cir. 1988), for
reasons of efficient judicial administration courts favor
having only one trial whenever possible. Therefore, the party
moving for a separate trial has the burden of showing that this
is necessary to prevent prejudice or confusion, and to serve
the ends of justice. See, generally,
C. Wright & A. Miller, Federal Practice and Procedure §
The Second Circuit has not had occasion to comment on the
acceptability of trying an ADEA claim together with state law
claims. Other judges on this court, considering this question
in the context of determining whether or not to exercise
pendant jurisdiction, have reached differing results.*fn8
See, e.g., Arnell v. Pan American World Airways, Inc.,
611 F. Supp. 908, 910 (S.D.N.Y. 1985) (Knapp, J.) (ADEA and state
law claim should not be joined in one action); Perry v.
Manocherian, 675 F. Supp. 1417, 1428-29 (S.D.N.Y. 1987) (Sweet,
J.) (ADEA and state law claim joined in one action).
Although it is clear that evidence of plaintiff's emotional
distress is irrelevant to his ADEA cause of action, evidence
of harm to a plaintiff, regardless of the cause, may result in
sympathetic jurors more concerned with compensating plaintiff
for his injury than whether or not defendant is at fault.
While the possibility of jury confusion is not in itself
sufficient under the facts of this case to warrant a separate
proceeding, see Buscemi v. PepsiCo, supra, 726 F. Supp. at 102,
when the possibility of confusion, however negligible, is
combined with the potential for evidence of plaintiff's
emotional distress to prejudice the jury, a more substantial
claim is made out.
Weighing all the factors in this case, the court finds
separate proceedings on the liability issue and the damages
issue to be appropriate. This will result in little sacrifice
to efficiency, convenience or judicial economy, and will serve
the interests of justice. The same jury will be used to try
both the liability phase and damages, and therefore there will
be no need to have repetitive testimony. Furthermore, the only
witness who will have to be called twice is the
plaintiff.*fn9 At the same time, separating liability from
damages will be a sufficient measure in this case to deal with
any possible prejudice or confusion. Accordingly, the issue of
defendant's liability will be tried first. If the jury finds
liability on the part of defendant, the parties will then
present their case to the jury on the issue of plaintiff's
In conclusion, defendant's motion in limine is granted in
part and denied in part. Defendant's motion for separate
proceedings as to liability and as to damages is granted. The
parties are reminded to maintain contact with the court's
deputy clerk regarding the trial date.
IT IS SO ORDERED.