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December 30, 1994

JOHN J. ROSE, Plaintiff,

The opinion of the court was delivered by: HOWARD G. MUNSON


 Presently before the court in this age discrimination action are defendant's motions pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure for judgment as a matter of law or a new trial. Trial was held from October 13 through October 19, 1993, after which the jury found in favor of plaintiff. Plaintiff moves for an award of front pay and post-judgment interest based on the jury's verdict in his favor, and for attorney's fees pursuant to 29 U.S.C. § 626(b). The court heard oral argument on all motions on November 29, 1993.


 This action was commenced by plaintiff John J. Rose pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, to recover money damages for injuries allegedly sustained because of the termination of his employment by defendant Ireco Incorporated ("Ireco") on August 28, 1990. Because the jury found in favor of plaintiff on his wrongful termination claim, awarding him $ 179,946.00 in back pay, it did not reach his claim for failure to rehire.


 A. Defendant's Motion for Judgment as a Matter of Law

 At the close of plaintiff's case-in-chief, and again at the close of proof, defendant moved for judgment as a matter of law. The court denied defendant's first motion, and reserved decision on the second. Defendant now renews the motion for judgment as a matter of law.

 A court may grant a motion for judgment as a matter of law when, after a party has been fully heard with respect to an issue, "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. R. Civ. P. 50(a)(1). In this circuit, such a motion may be granted only where there is "'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 if the evidence is '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), cert. denied, U.S. , 114 S. Ct. 1613 (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 ruling on such a motion, the court must 'consider the evidence in the light most favorable to the [nonmoving party] and...give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence.'" Concerned Residents for Env't v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994) (quoting Smith v. Lightning Bolt Prod., Inc., 861 F.2d 363, 367 (2d Cir. 1988))

 The ADEA provides that it is "unlawful for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The legal standard to be applied to suits under the ADEA is the well known three-step analysis for Title VII cases established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), clarified in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and further refined in St. Mary's Honor Ctr. v. Hicks, U.S. , 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407 (1993). The McDonnell Douglas analysis sets forth a burden shifting scheme in which plaintiff ultimately bears the burden of proving discriminatory intent on the part of defendant.

 The first phase of the analysis requires plaintiff to prove by a preponderance of the evidence a "prima facie" case of discriminatory discharge. See Burdine, 450 U.S. at 252-53. To establish a prima facie case of discriminatory discharge, "a plaintiff must show that (1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination." Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993) (citations omitted).

 If plaintiff succeeds in proving a prima facie case, a presumption is created that the employer unlawfully discriminated against the employee and the court must proceed to the second phase of the analysis, in which the burden shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for its actions. Hollander v. Am. Cyanamid Co., 895 F.2d 80, 83 (2d Cir. 1990). Defendant bears only the burden of production and need not persuade the court that it was actually motivated by the proffered reason, as the burden of persuasion remains with the plaintiff at all times. Cosgrove v. Sears Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993); Dicola v. Swissre Holding, N. Am. Inc., 996 F.2d 30, 32 (2d Cir. 1993). To rebut the presumption created by plaintiff's prima facie case, it is sufficient that defendant produces admissible evidence that is "legally sufficient to justify a judgment" in its favor. Burdine, 450 U.S. at 255.

 If the defendant carries this burden of production and rebuts the presumption raised by plaintiff's prima facie case, the court reaches the third and final phase of the analysis. At this stage, the McDonnell Douglas framework becomes irrelevant. Cosgrove, 9 F.3d at 1039 (citing Hicks, 113 S. Ct. at 2749). Plaintiff must demonstrate that the proffered reason was not the true reason for the discharge, but instead was a pretext for intentional discrimination. Burdine, 450 U.S. at 255-56. Plaintiff "may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256.

 In the instant case, defendant advances three arguments in support of its claim that plaintiff failed to prove his prima facie case of discrimination. First, defendant argues that plaintiff failed to demonstrate that his position was filled by anyone else. Furthermore, defendant asserts, the evidence was insufficient to create an inference of discrimination because only two of the four employees terminated by Ireco on September 4, 1990 were within the ...

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