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November 10, 1993

ROBERT A. KEETON, Plaintiff,

The opinion of the court was delivered by: WHITMAN KNAPP


 In this Title VII case defendant has moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion comes before me in a peculiar procedural setting.

 Due to a calendar crisis, the case was assigned to me a few days before the trial started. Upon my first meeting with counsel, they, in an off-the record conference, explained their respective positions. The basic position of plaintiff, a black *fn1" male, was that after twenty-four years of loyal and unblemished service he had been forced to take early retirement on the wholly pretextual ground that he had improperly used for personal purposes a corporate American Express card. To the best of my recollection, plaintiff did not seriously contend that there was anything in the actual conduct of one Paul Corrao, the superior claimed so to have forced him to take early retirement, which suggested racial motivation. Counsel argued that a jury could infer such motive from two circumstances:

(1) Some six months after Corrao had forced this early retirement, he was asked to provide an explanation for his conduct to the EEOC, and had proceeded to give concededly inaccurate (claimed by plaintiff to have been willfully false) explanations, which inaccurate (or false) explanations he repeated under oath in a deposition taken in this action.
(2) In 1988 when Corrao had accepted plaintiff into his unit as a supervisory employee, five such supervisory employees (including plaintiff) were black and five others white; but by 1989 when Corrao forced plaintiff into early retirement, he was the only remaining black supervisor, the other four having (for a variety of reasons) left the unit and having been replaced by whites.

 Again according to my best recollection, defendant's counsel -- although not conceding that plaintiff's evidence would establish a prima facie case -- showed no disposition to argue the point. On the contrary, he indicated that he was confident that the evidence of justification which he planned to submit would be so overwhelming as to entitle defendant corporation to a directed verdict. Whether or not my recollection is correct about that preliminary conference, the subsequently created record establishes that my foregoing statement accurately reflects the positions ultimately taken by the respective parties. Although never formally conceding the existence of a prima facie case, defendant's counsel made no serious effort to convince me or the jury that one did not exist. He relied wholly on his confidence in the explanatory evidence. This confidence proved to be unwarranted. The jury's verdict for the plaintiff contained, among other things, an award of $ 100,000 in punitive damages.

 On July 23rd, on the argument of defendant's instant motion, I advised the parties that I was satisfied that a prima facie case existed, and so could not grant the motion for a judgment n.o.v; but that I thought it probable that defendant had established that no jury could rationally reject what seemed to me convincing and uncontradicted explanatory evidence, and that defendant's alternative request for a new trial might well be granted. After the careful examination of the evidence required for decision on defendant's motion, I have become convinced that defendant is indeed entitled to Judgment Notwithstanding the Verdict. Also I continue to believe, although for different reasons than the one I then stated, that should such relief be denied defendant would be entitled to the alternative relief of a new trial. For reasons that will follow, I now find:

 (1) There is indeed nothing about the conduct actually involved in Corrao's pressuring plaintiff to take early retirement that in any way suggests race as a motivating factor.

 (2) The facts adduced concerning the departure of the four black supervisors from Corrao's unit, viewed most favorably to plaintiff's position, do not in any way suggest racial motive on Corrao's part.

 (3) These two factual findings show that - apart from any inference that might be drawn from Corrao's allegedly false explanations - the evidence adduced in no way suggested that plaintiff was fired "in circumstances giving rise to an inference of discrimination." Rosen v. Thornburgh (2d Ct. 1991) 928 F.2d 528, 532.

 (4) In light of these factual findings and of the law as most recently enunciated in Hicks v. St. Mary's (1993) 506 U.S. , 125 L. Ed. 2d 407, 113 S. Ct. 2742, 1993 U.S. LEXIS 4401, no impression any juror might have derived from Corrao's allegedly false statements could be used in this lawsuit against defendant corporation.

 I have therefore concluded that defendant is entitled to a judgment not withstanding the verdict. I have also concluded - for reasons I shall later explain -- that if the Court of Appeals were to reverse the grant of judgment of n.o.v., defendant would be entitled to the alternative relief of a new trial.

 Aside from contesting the correctness of these two conclusions, plaintiff contends that defendant - by its above-described strategy - has "waived its right to seek judgment n.o.v." (Pl. Mem. p.17). As will be explained, I reject that contention.

 There is also a collateral matter which must be considered. I am the trustee of a family trust having a total value of about $ 4,600,000. Due to the above mentioned calendar crisis, I started the trial of this case without taking the usual precaution of having my minute clerk examine his list of trust assets (and my own assets) to avoid the risk of conflict. Accordingly it was not until after returning from vacation this September, and seeing a memorandum prepared for my signature recusing myself in another case involving this corporate defendant, that I came to realize that since the latter part of 1992 the trust had held 1220 shares of American Telephone and Telegraph Company which shares constitute 1.66 per cent of the total value of the trust and .000090571 per cent of the 1,347,007,000 outstanding shares of AT&T stock. *fn2" I immediately notified the parties, and plaintiff made a timely request that I recuse myself. For reasons which follow, I deny that request.

 Procedural History

 On May 11, 1990, plaintiff signed an EEOC Charge of Discrimination against defendant corporation in which he asserted that he "was forced to retire or be fired because of race and age . . ." A complaint containing this and similar allegations was filed in the Southern District of New York on August 23, 1991. The case fell to Judge David N. Edelstein, with Magistrate Judge Michael H. Dolinger assigned to oversee discovery. An amended complaint omitting the charge of age discrimination was filed on April 13, 1992. In a letter dated May 26, 1992, plaintiff informed the Magistrate Judge of the parties' progress in discovery:

Plaintiff and defendant have each deposed one witness and plaintiff anticipates no further depositions. Plaintiff has also responded to defendant's requests for documents and defendant has made no additional requests in that regard.

 By memo endorsement dated August 20, 1992, the Magistrate Judge directed that the parties within six days submit a Pretrial Order. In such Joint Pre-trial Order, filed four days later and subsequently admitted in evidence as Defendant's Exhibit E, plaintiff asserted that it would call six witnesses, three of whom were expected to testify as follows (Def. Ex. E, p 7, emphasis added):

Vivienne Crier is black and worked for defendant for approximately 17 years, most recently as a technician. Corrao was her immediate supervisor. She is expected to testify about Corrao's discriminatory treatment of her.
Walter Anderson is black and worked for defendant for approximately 17 years, most recently as a supervisor at the White Plains Remote Work Center. Corrao was his immediate supervisor. He is expected to testify about Corrao's discriminatory treatment of him.
Theodora Hamer is black and worked for defendant approximately 13 years, most recently as a supervisor at the White Plains Remote Work Center. Corrao was her immediate supervisor. She is elected to testify about Corrao's discriminatory treatment of her.

 On October 8, 1992 the case was reassigned to Judge Miriam G. Cedarbaum. As of January 8, 1993, it was placed on Judge Cedarbaum's Ready Trial Calendar on 48 hours notice. Judge Cedarbaum became ill on the eve of the scheduled trial. On February 11 - at the request of the District Executive - I assumed responsibility, and there followed the above noted off-the-record conference with counsel.

 At the close of plaintiff's case defendant's counsel agreed with my suggestion that we defer legal arguments to some time when the jury would not be kept waiting, but only if it was clear that he was "preserving his motion." (Tr. 234, and see my observation at Tr. 247).

 In its motion for a directed verdict at the close of plaintiff's case, defendant made the following statement regarding whether or not a prima facie case had been established:

The critical prong that's missing from the plaintiff's case is evidence or indicia to suggest that what happened to Mr. Keeton happened because of his race . . . (Tr. 284)
I'd argue that there is no prima facie case, but there is really not point to that since we have . . . articulated a legitimate nondiscriminatory reason for the treatment that Mr. Keeton received. (Tr. 284-85)

 I reserved decision on this motion and submitted the case to the jury, noting that a verdict in favor of plaintiff would engender "a very difficult decision to make, whether or not to set it aside." (Tr. 291-292).

 In a charging conference towards the close of the evidence, I advised the parties that, having heard no arguments from either side relating to this issue, I would not be submitting a charge relating to the establishment of a prima facie case. Defendant offered no objection. When charging the jury, I - without objection by defendant - instructed the jury as follows regarding Corrao's claimed false statements (Tr. 377):

. . . if you accept plaintiff's position and conclude that the misdescription was deliberate and was done for the purpose of concealing some misconduct, you may, if you wish, conclude that he knew his conduct had been unlawful and that that is why he tried to disguise it. And you may, if you wish, treat his misrepresentation as an indication that he had indeed a dishonest motive in his conduct toward plaintiff and that such motive was to mistreat Mr. Keeton because of his race.

 I made no reference to the necessity of establishing of a prima facie case before such an inference could be drawn, nor did defendant request any such reference.

 Following the verdict, defendant moved for a Judgment Notwithstanding the Verdict or for a New Trial. At oral argument on that motion I opened the proceeding with the ...

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