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March 29, 1994


The opinion of the court was delivered by: JACOB MISHLER

 MISHLER, District Judge

 Donald Binder sued his former employer, defendant Long Island Lighting Company ("LILCO"), alleging willful violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1988) ("ADEA") and New York Executive Law § 296 et seq. Binder claims that LILCO discriminated against him because of his age by terminating his employment and by not finding him another position within LILCO despite the fact that other positions were available and that many were given to individuals younger than Binder.

 The case was tried to a jury from October 25, 1993 through October 27, 1993. At the close of plaintiff's case-in-chief, LILCO moved for judgment as a matter of law based on the lack of evidence that would establish that age played any part in LILCO's decision to terminate Binder. The court denied LILCO's motion, but indicated that "if the jury comes out with a verdict for the plaintiff, you just renew your motion, and then I will give it very serious thought." T.341. At the close of all the evidence, LILCO renewed its motion. *fn1" Following the jury's verdict in Binder's favor, LILCO again renewed its motion for judgment as a matter of law. In the alternative, LILCO moved for a new trial pursuant to Fed. R. Civ. P. 59 on the grounds that the verdict was against the weight of the evidence and contrary to law, and in the alternative again to remit the damage award for pain and suffering as grossly excessive and against the weight of the evidence. For the reasons below, the court grants the motion for judgment as a matter of law and, in the alternative, grants the motion for a new trial. FED. R. CIV. P. 50(c)(1). Even if these motions were not granted, the court would grant a new trial on the issue of damages, since the amount of damages found by the jury is unsupported by the evidence. FED. R. CIV. P. 59(d).

 I. Specificity of the motion for judgment as a matter of law

 As a threshold matter, Binder asserts that LILCO did not make its initial motion for judgment as a matter of law with the requisite specificity. Because of this, he argues that its renewed motion should not be considered by the court.

 At the close of Binder's case, LILCO moved "for judgment as a matter of law on the basis that there is no evidence put on this record to establish that age has any role, played any part in the decision to terminate plaintiff. " T.341 *fn2" (emphasis added). The italicized language is sufficiently definite to preserve LILCO's current motion.

 The cases cited by Binder are all inapposite. In Piesco v. Koch, 12 F.3d 332 (2d Cir. 1993), the defendant made its Rule 50(a) motion by saying, "Defendants move for a directed verdict." The defendant in Heller v. Champion Int'l Corp., 891 F.2d 432, 436 (2d Cir. 1989), failed entirely to raise a claim in its initial motion for a directed verdict; the Second Circuit would not consider the argument in the motion j.n.o.v. In Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 368 (2d Cir. 1988), the defendant moved for a directed verdict by "stating simplistically that 'plaintiff has failed to make out a prima facie case'". Furthermore, the Second Circuit found that the defendant made no motion at all addressed to the elements of a count of fraud. Id. at 367-68. Finally, in Meriwether v. Coughlin, 879 F.2d 1037, 1040 (2d Cir. 1989), the defendant moved by saying, "'. . . defendants wish to move for a judgment notwithstanding the verdict.'"

 None of these statements is sufficient "to give the claimant a fair 'opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury.'" Smith, 861 F.2d at 367, quoting 5A MOORE'S FEDERAL PRACTICE P 50.08 at 50-88 (1992). By contrast, the motion made here by LILCO clearly indicated that, in LILCO's view, there was no evidence of a necessary element of Binder's claim -- that is, that age played a role in LILCO's decision not to consider him for other positions for which he may have been qualified. That motion is sufficient as a matter of law, and this court will consider the motion on the merits. See, e.g., Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 586 (2d Cir. 1987) (sufficient specificity to challenge contract formation when counsel said, "plaintiff cannot produce any cognizable evidence that a valid contract exists."); Posadas de Mexico, S.A. de C.V. v. Dukes, 789 F. Supp. 121, 123 n.1 (S.D.N.Y. 1992) (sufficient specificity under Rule 50(b) when counsel said "plaintiff has not proven his case nor has he proved any elements of fraud . . . against Mr. Rufer.").

 Fed. R. Civ. p. 50(a) *fn3" states:

(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

 The Second Circuit has interpreted this rule to require "'such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture,' or that the evidence be 'so overwhelming that reasonable and fair minded persons could only have reached the opposite result.'" Lambert v. Genesee Hospital, 10 F.3d 46, 56 (2d Cir. 1993), petition for cert. filed, No. 93-1388 (U.S. Mar. 7, 1994) (quoting Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992), which quotes in turn Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 103 L. Ed. 2d 230, 109 S. Ct. 1095 (1989)).

 In deciding a Rule 50 motion, the court must construe the evidence most favorably to the non-moving party without weighing the evidence or passing on the credibility of witnesses. Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Flynn v. Goldman, Sachs & Co., 836 F. Supp. 152, 154 (S.D.N.Y. 1993). Furthermore, there must be some affirmative evidence to support plaintiff's version of the facts. "The party bearing the burden of proof cannot create an issue for the jury's resolution by relying solely on the hope that the jury will not trust the credibility of the witnesses." Flynn, 836 F. Supp. at 154. "'If all of the witnesses deny that an event essential to plaintiff's case occurred, he cannot get to the jury simply because the jury might disbelieve some of those denials. There must be some affirmative evidence that the event occurred.'" Martin v. Citibank, N.A., 762 F.2d 212, 217-18 (2d Cir. 1985) (quoting 9 CHARLES WRIGHT & ARTHUR MILLER, Federal Practice & Procedure § 2527 at 563 (1971)). Because Binder has not introduced any affirmative evidence that age played any part in LILCO's decision to terminate him, he cannot meet this burden.

 Binder's theory of the case is that LILCO (1) eliminated his then-current position, (2) refused to create a new position for him, and (3) refused to consider him for any other available positions for which he was qualified, all because of his age. See Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1706 (1993) ("In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision."). Although the first two claims are no longer in the case, see Binder v. Long Island Lighting Co., 933 F.2d 187, 192 (2d Cir. 1991) (Binder I), Binder contends that LILCO considered only his age and not his accomplishments in deciding not to offer him any other available position in the company.

 LILCO claims that it had a nondiscriminatory reason for not having considered Binder for other positions. Its position is that (1) Binder never applied for any positions within the company that were filled by a self-nomination process, and (2) LILCO felt that Binder was overqualified for the positions that were open and for which its human resources department recommended candidates, and it had a policy against placing people in such positions.

 Without weighing the evidence or passing on the credibility of witnesses, we examine the evidence in the light most favorable to Binder to determine whether age played a role in LILCO's decision not to offer him an alternative position.

 A. The Evidence in the Light Most Favorable to Binder

 Binder was born on August 31, 1929. He graduated from Brooklyn Technical High School in 1947, and spent the next four years alternating between working for Manufacturer's Hanover and serving in the Army. In 1951, Binder began attending classes at Brooklyn Polytechnic, and graduated with a bachelor's degree in mechanical engineering in 1955. In July 1955, he began working for LILCO as a junior engineer.

 Over the next 31 years, Binder worked his way up through a variety of jobs, earning favorable performance evaluations and receiving "good" raises. T.37. He acted as project engineer on certain projects, which included design and management responsibilities. His progression in job titles was junior engineer (1955-58), associate engineer (1958-64), engineer (1964-69), senior engineer (1969), Shoreham quality assurance administrator (1969-70), project engineer (1970-73), division manager (1973-79), department manager (1979-84), assistant to the vice president of nuclear operations (5/84-11/84), and engineering consultant (1984-87). Each new job required more or different knowledge and skill than the one before.

 Throughout his 31 years with LILCO, Binder received favorable performance reviews and salary increases. T.37, 52-53, 57-58, 60, 71-75; Pl.Ex. 1-4. He started out with LILCO in its gas division, acting as project engineer on a number of projects. In 1962, he oversaw the design and construction of gas manufacturing plants in Bayshore; he also obtained hands-on training in power plant operations. He was also asked to familiarize himself with the Enrico Fermi nuclear plant, which was partially owned by LILCO, in New Jersey.

 As part of a program offered only to about a dozen employees at LILCO, Binder received his master's degree in nuclear physics from Long Island University. He also took courses in reactor safety at M.I.T., and in nuclear operations and design at the University of Michigan. Starting in 1963, Binder became involved in LILCO's nuclear area, and was the original quality assurance administrator on the Shoreham nuclear project. He later became the project engineer for Shoreham. T.39-45.

 Binder was the first division manager of LILCO's newly-formed Division of Nuclear Engineering; he organized the division from its inception. When the division was elevated to departmental status, Binder became its first department manager. In May 1984, Binder became Assistant to the Vice President, Nuclear, and helped to orient him to Shoreham, as it was about to come on line at low power. T.52-58.

 In December 1984, Binder was transferred to the position of Consulting Engineer on the staff of Dr. Matthew Cordaro, Vice president of Engineering and Administration. Cordaro was thirteen years younger than Binder. Binder continued to work under Cordaro when the latter was promoted in 1985 to Senior Vice President, Operations and Engineering. T.59-61; Pl.Ex. 57.

 As Cordaro's assistant, Binder had broad responsibilities. He acted as Chairman of the Work Order Committee, which was formed to deal with the problem of cost overruns on many of LILCO's large projects. The Committee's report resulted in the establishment of the Project Management department. Binder also chaired other similar committees, and was a general troubleshooter for Cordaro in many important situations. T. 61-67.

 In addition, Binder acted in many respects as Cordaro's alter-ego. He represented Cordaro in dealings with outside consultants, as well as within LILCO at meetings where substantial policy issues were discussed. T.81, 312.

 Binder performed well as Cordaro's assistant. His overall ratings for 1985 and 1986 were "Commendable", although the component ratings of the overall rating ranged from "Competent" to "Distinguished". *fn4" Pl. Ex. 2, 4. During the two years he was Cordaro's assistant, Binder received raises totalling $ 7,200.00. Pl.Ex. 1.

 Binder was not Cordaro's only assistant; Walter Ferraro was the other. Ferraro was about ten years younger than Binder. Pl.Ex. 63. His position was similar to Binder's, in that he ran interference for Cordaro and acted as Cordaro's eyes and ears, although in different areas of expertise.

 Dr. William Catacosinos took over as Chairman of LILCO in 1984. He immediately ordered a massive reorganization, including a large reduction in force. T.53. In addition, he wanted his senior management to take an active role in their jobs. He and Cordaro had been having conflicts in regard to Cordaro's management style, which was to delegate a large amount of responsibility to his staff assistants, Binder and Ferraro. As part of his managerial philosophy, Catacosinos directed in late 1985 that all Staff Assistant positions, including those held by Binder and Ferraro, be eliminated. When Cordaro was promoted to Senior Vice President, Catacosinos tried (to no avail) to ensure that he bring no staff assistants with him. Catacosinos had to speak with Cordaro twice before Cordaro finally eliminated the positions of his Staff Assistants in September 1986. *fn5" T.313-15.

 Meanwhile, in the summer of 1986, Binder was approached by people outside of LILCO about setting up a business venture. Binder thought seriously about accepting their proposal. He went so far as to speak with Cordaro about the availability of early retirement. Cordaro, seeing a way to forestall the elimination of Binder's position, mentioned Binder's interest in early retirement to Catacosinos, Russell Youngdahl, the president of LILCO, and Robert Kelleher, Vice president of human resources. *fn6" T.315.

 Cordaro notified Binder sometime in September 1986 that his position, along with Ferraro's, was going to be eliminated. At that meeting, he told Binder to see Kelleher about finding another position within LILCO.

 Within a week or two, by the end of September or the beginning of October, Binder went to see Kelleher. He told Kelleher that he assumed Kelleher knew that his job was being eliminated, and he asked Kelleher what he could do to find him another position. Kelleher asked him his preferences, which Binder gave him. They included project management, for which Binder felt qualified because of the committee he had chaired, co-generation, refuse recovery, nuclear, and engineering. Kelleher told Binder that he would look into it and get back to him. T.78-80, 292. Binder also discussed early retirement with Kelleher, asking what packages were available. T.295-96. Kelleher testified that he told Binder, although not in so many words, that if he did not find an alternative position, he would have to leave LILCO. T.294-96.

 Binder never told Kelleher that he was relying on Kelleher to find him a new position, although he testified that as far as he was concerned he was leaving the matter of finding a new position for him entirely in Kelleher's hands. T.214-15, 217. At the time, no one at LILCO knew whether Binder was going to leave voluntarily to pursue his business venture. If he had done so, it would have been by January 1, 1987. Because of this, Kelleher set no deadlines for Binder at the meeting, and Binder left with no sense of urgency about his position. Binder never asked Kelleher how long he had before his position was to be eliminated. T.213-15.

 Binder returned from his meeting with Kelleher and told Cordaro that it had been a good meeting. Cordaro suggested that Binder talk with Christopher Cole, the project manager of the new project Management department. T.81. As it turned out, Cole approached Binder before the latter had the chance to seek out Cole. Cole knew that Binder's position was being eliminated, although Binder had not told anyone in LILCO about his situation. Cole asked Binder whether Binder would have an interest in joining the Project Management department. Binder did express an interest, and Cole suggested that he speak with Martin Mullarkey, one of the division managers in the Project Management department. Tr.82, 90-91.

 Binder knew Mullarkey well. He had hired Mullarkey into LILCO, and Mullarkey had worked for him for a time in the Nuclear Engineering department. Mullarkey had work that he thought Binder could do, although they did not discuss a specific position. That work was a manual to instruct project managers on how to manage a project. This was needed within the department, and was also needed to show LILCO in a positive light in an ongoing Public Service Commission audit. Binder told Mullarkey that if the position went through he would give 100 percent. Mullarkey gave Binder reference material concerning the manual; Binder glanced at it, but did not actually do any work on it. T.228-29.

 According to Binder, Mullarkey filled out a change of status form, which was the first step in arranging for Binder's transfer to Mullarkey's group. T.93-94. Binder and Mullarkey did not discuss job title or salary level, both of which were required on a change of status form. T.230-31.

 LILCO denies that a change of status form was ever filled out; Cole testified that he never prepared one for Binder. T.270. Within a day or two, Binder met with Cole again. After that meeting, he prepared a personnel requisition form, which could not be located, that requested authorization for a position for Binder to allow him to work on the manual. Pl.Ex. 52, 53. A requisition form creates a new position; a transfer (change of status) form moves an employee from one position to another. T.277-78. After Cole signed the requisition form, it went to Cordaro for his signature and then to Catacosinos for final approval. Catacosinos denied authorization for the new position. T.271.

 Cole took his position in August 1986. By the beginning of October 1986, he had filled all of the division manager positions in the Project Management department, T.264, which were filled by the management succession process. *fn7" Once those positions were filled, the managers worked together to develop staffing plans for each of the divisions. They ultimately developed a long-term plan with multi-phase staffing. T.254, 264-65; Pl.Ex. 50. That is, a nucleus of personnel would be put in place from the start, and further additions to the complement would be made until the department was staffed at the levels planned for in the long-range plan. T.264-66; Pl.Ex. 50, 51.

 Once the division managers were in place, 18 subordinate positions were requested for Mullarkey's division. Pl.Ex. 51. Ten of the positions were approved and transferred from other areas in LILCO. Some of them were already staffed; the vacancies were filled by the posting process. T.266-67. Catacosinos refused to add any positions to the organization, so the eight remaining positions were approved by him provided that they could be found already in LILCO and merely transferred to the new division. Id. In other words, there was no authorization to increase the corporate complement. Seven positions were found and transferred; those positions were also filled by the posting process during late 1986 and, early 1987. T.268. The eighth position was a clerical one, and ultimately was not found. T.268, 271.

 Catacosinos refused to create a new position for Binder or anyone. T.271. Although there were two vacant positions in Cole's department, neither of them was rated to allow Binder to do the work he had discussed with Mullarkey (i.e., the manual). T.271-72. Furthermore, Cole thought that Binder was not suited for the vacancies, which would have been filled by a self-nomination process. T.270-72. Cole continued to try to get authorization for another position in the department after Binder left LILCO. T.272-73. Binder put forward no evidence that the position Cole sought to create for Binder was ever approved by Catacosinos.

 As part of the long-range plan for the Project Management Department, in May 1987 Cole asked that the complement of the department be increased by 14. Pl.Ex. 55. This request was granted, and the positions were then filled either by the posting process or by hiring new employees through help-wanted advertisements. T.272-73; Pl.Ex. 50.

 1. Binder's Termination

 During the time from October 1986 to February 3, 1987, Binder continued to work on Cordaro's staff; he did not do any work on the matters he had discussed with Mullarkey. He was acting as the liaison between LILCO and an outside consulting group that was formulating a critique of the fossil fuel department. T.81-82.

 Binder was aware that what he thought was the change of status form would have to be approved by Cordaro. He never asked Cordaro about the status of the form, however, nor did he follow up with respect to the elimination of his position. Neither did he call Kelleher to tell him that he had found a new position with Mullarkey.

 Sometime near the end of 1986, it became clear that Binder was not going to pursue his business venture and take early retirement. At that point, Youngdahl told Cordaro and Kelleher that the target date for the elimination of Binder's position, since he was not going to pursue his business venture, was February 1, 1987. T.320-21. During late 1986, Ferraro's position had been eliminated, and he had been placed in another position, which he subsequently left because he was unhappy with it.

 On February 3, 1987, Cordaro told Binder that Catacosinos had forbade the creation of a new position in the Project Management department. Furthermore, no other position would be offered to Binder. Since he had not found a position on his own, he therefore had to take early retirement. T.244.

 When Binder asked why, Cordaro told him that the chairman had said that Binder was a poor performer. He also said that he thought it might be a whim. Cordaro never indicated that age had any impact whatsoever on Catacosinos' decision. T.246. The meeting took Binder by surprise; he claimed he had no indication prior to the February 3 meeting that his termination was imminent. T.97.

 Kelleher testified that he spoke with Binder within a week or so of Binder's leaving for good, sometime around February 5, 1987. Kelleher went to Binder's office. He had discovered that Binder was still doing work for Cordaro, and was concerned that both Cordaro and Binder might have thought that there was no rush to find Binder alternate employment. He asked Binder if he realized that he had only a week or so before his position was finally to be eliminated, and that the final deadline had been February 1, 1987. He testified that Binder was surprised. T.321-22.

 Binder asked Kelleher to explain why the chairman thought he was a poor performer. Kelleher told him to think of it in terms of the mass layoffs in 1984, during which about 500 people (including about 150 managers) were let go. Binder was incredulous that, after 31 years with LILCO, no other position would be found for him. T.96-97. He asked Kelleher what the "real story" was. Binder testified: "[Kelleher] said, 'I am not going to bullshit you Don.' Look at me in the eye and then silence. And that was that." T.97.

 Kelleher told Binder that his last day would be February 13, to give him a chance to clean everything up and process through human resources' exiting procedures. When human resources asked Binder to fill out a "voluntary retirement" form, he refused, signing it under protest. T.97-98.

 2. Personnel Movement at LILCO

 Jobs at LILCO were filled in one of two ways. The first was called "management succession". In that process, which was used to place people in the position of division manager or higher, T.261-62, 274, 323-24, the human resources department nominated candidates, who then went through an interview process. As part of the management development process, managers would sometimes be assigned to an area temporarily to broaden their background and experience. T.307, 320. People were rotated through the temporary assignment program only if they had a permanent position waiting for them when their rotation was done.

 The second method of filling jobs was self-nomination. All vacancies below the division manager level were posted on bulletin boards throughout the company with a description of the job's salary range, qualifications and duties. The postings generally stayed up for a few weeks. As candidates applied, they too were interviewed, and the successful candidate got the position. T.322-23.

 Between September 1986 and August 1987 LILCO hired, transferred, or promoted over 60 employees. Of those, about 22 were under 40 and about 38 were over 40. Of those over 40, about 22 were younger than Binder, about 6 were older, and about 10 were the same age. Of the positions into which they moved, about 19 were at or above the division manager level, and about 41 were below. Transfers and promotions outnumbered new hires by a 5-to-1 ratio. *fn8" Binder testified that he was qualified to hold (and would have accepted) substantially all of the positions that were filled by other people, most of whom were younger than he but some of whom were his age or older. T.100-01, 103-04, 107-37, 178-89; Pl.Ex. 5-41, 61; Def.Ex. K-AAA. As shown below, however, most of these positions are irrelevant to our analysis.

 Ferraro was one of the people who changed positions. Kelleher spoke with Ferraro around the same time he spoke with Binder, late in 1986. At that time, Kelleher offered Ferraro an opportunity in the budget office. Kelleher felt that the budget position was at a comparable level to Ferraro's staff position, although it reported to a manager rather than to a senior vice president. In addition, the position called for the same skills that Ferraro was using as Cordaro's staff assistant. T.317-19.

 Ferraro was involved in a real estate business outside of LILCO, and was not sure that he wanted to take the position that was offered to him. Kelleher testified (and his was the only testimony on this point) that Ferraro objected more to the perceived demotion than he did to the content of the job, and Kelleher felt that Ferraro would not be underemployed and might readjust himself and enjoy the position. T.318-19. Ferraro took the position, but left to pursue his real estate business shortly thereafter. T.317-18.

 In addition, several people at LILCO were demoted during this time period. One of them was Ferraro, who reported to a manager rather than a vice president in his new position. Two others, both younger than Binder, were also demoted. One, Ed Argue, was about 48 years old at the time; the other, Vito Elefante, was about 36 years old. None of the three received a pay cut. T.304-07.

 3. INPO

 In May 1986, as part of LILCO's attempt to license Shoreham, the Institute of Nuclear Power Operations (INPO) conducted a corporate evaluation. T.17. In it, INPO recommended that LILCO do more to attract and retain personnel with nuclear power experience. Pl.Ex. 42. Binder had such experience. However, LILCO's response indicated that because of political pressures, Shoreham was in a unique situation and full operation was delayed. Indeed, Shoreham was shut for good only two years later after much ...

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