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December 13, 1995

JANE E. MULQUEEN, as Administratrix of the Estate of Francis J. Mulqueen, Jr., Plaintiff,
DAKA, INC., Defendant.

The opinion of the court was delivered by: HURD


 On May 21, 1991, Francis J. Mulqueen, Jr. was terminated from his position at defendant Daka, Inc., where he was employed as a food service manager. He died approximately two and one-half years later on November 10, 1993. His daughter, Jane Mulqueen, as Administratrix of his estate, brought suit pursuant to 42 U.S.C. § 2000e, claiming that the defendant terminated his employment solely due to his age, in violation of the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 626 et seq. The action was tried in Albany, New York, on September 18, through 21, 1995, at the conclusion of which the jury returned a favorable verdict to the Estate in the amount of $ 102,502.34 for past lost earnings including fringe benefits. Judgment was entered accordingly on September 22, 1995.

 Plaintiff *fn1" now moves for an award of prejudgment interest from November 10, 1993, to September 22, 1995, and for an award of attorney's fees and expenses. 29 U.S.C. § 626(b). There is no opposition from the defendant.

 Daka, Inc. has likewise filed post trial motions. It seeks judgment in its favor as a matter of law pursuant to Fed. R. Civ. P. 50(a), or in the alternative, a new trial pursuant to Fed R. Civ. P. 59.

 Oral argument was held in Utica, New York, on November 9, 1995. The court reserved decision. Since the results of the defendant's motions will have implications on the plaintiff's motions, defendant's motions will be addressed first.


 The Supreme Court has determined that ADEA cases will be subject to and follow the law of Title VII cases. Lorillard v. Pons, 434 U.S. 575, 584, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Thus, the starting point in determining the outcome of an ADEA case is - as with Title VII cases - the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). *fn2" There the Supreme Court set out a three step process, allocating burdens of production and persuasion. *fn3" The first of these steps - that of proving a prima facie case - belongs to the plaintiff. One of the methods in which plaintiff may satisfy his burden is by coming forth with proof of the following: "(i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802. *fn4" Defendant's motions hinge upon whether the plaintiff has fulfilled his burden with regard to the second of these four McDonnell Douglas elements.

 A. Establishment of a Prima Facie Case.

 Proving a prima facie case requires only a de minimis showing that there exists a triable issue of fact, Quaratino v. Tiffany & Co., 71 F.3d 58, 1995 U.S. App. LEXIS 32635, *19, 1995 WL 686653, at *7-8 (2d Cir. 1995) ("plaintiff's burden of proof in a . . . discrimination action is de minimis at the prima facie stage, . . ."); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988), so that the court may focus its attention on "the ultimate question of discrimination vel non." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983).

 Defendant argues that the plaintiff has failed to show even a de minimis amount of evidence supporting his qualification for the job. In support of this argument, defendant alleges that the proper standard to be used in determining whether the "qualified" element of a prima facie case has been established is "whether the employee was doing the job well enough to 'meet his employer's [the Defendant's] legitimate expectations.'" Charrette v. S.M. Flickinger Co., 806 F. Supp. 1045, 1056 (N.D.N.Y. 1992) (quoting Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985)); see also Huhn v. Koehring Co., 718 F.2d 239, 244 (7th Cir. 1983). However, these cases, and the line of cases from which they draw support, lack the clarity, specificity, and foundation to establish this view as the present state of the Second Circuit's definition of prima facie "qualified," in discriminatory discharge cases as will be discussed infra.

 On the other hand, at least four Second Circuit cases have specifically addressed the issue since the Supreme Court rendered its decision in McDonnell Douglas enumerating the elements of a prima facie case. The first of these was the case of Powell v. Syracuse Univ., 580 F.2d 1150 (2d Cir.), cert. denied, 439 U.S. 984, 58 L. Ed. 2d 656, 99 S. Ct. 576 (1978). Released five years after McDonnell Douglas, it examined whether the plaintiff, a black female part-time visiting assistant professor with the Architecture Department at Syracuse University was terminated based upon race or sex. Id. at 1151. The district court dismissed the action, finding that plaintiff had failed to establish two items of the McDonnell Douglas prima facie case: that she was "qualified" to teach on the faculty, and that other persons with similar qualifications were subsequently hired. Id. at 1155.

 The Second Circuit directly addressed the issue with which we now deal. The Court stated:

We believe that the trial court applied an erroneous legal standard in reaching these conclusions. . . .
With respect to the first of the court's findings [that plaintiff was not qualified], we believe that the court's approach unnecessarily collapses the steps suggested by McDonnell Douglas by shifting considerations which are more appropriate to the employer's rebuttal phase to the earlier requirement that the employee demonstrate competence to perform the specified work. This is not merely of formal consequence, for it has the practical effect of requiring the employee to prove not merely that he possesses the basic skills necessary for the job, but rather that he is the best-qualified candidate for the job, under the criteria suggested by the employer. As can be seen in the present case, this burden is extremely difficult to meet if the employer's claim that the employee did not meet some unstated level of performance is sufficient to negate the employee's offer of proof.

 Id. By stating, "We believe that the court's approach unnecessarily collapses the steps . . . by shifting considerations which are more appropriate to the employer's rebuttal phase," id., the Second Circuit specifically delineated the limited nature of the "qualified" element of a prima facie case, finding little room for proof of performance at that stage. The Circuit sought to keep the status of proving a prima facie case to a de minimis showing. *fn5" The Second Circuit in Powell continued, "If an employer is dissatisfied with the performance of an employee, he can properly raise the issue in rebuttal of the plaintiff's showing. . . . [Plaintiff] has demonstrated that she possesses the basic skills necessary for the performance of her job, and has thereby made out a prima facie showing of competence." Id.

 The Second Circuit has thus made it clear that an employer's legitimate expectation of performance has no place in determining qualification at the prima facie stage of the case, as the defendant suggests. Other Second Circuit cases interpreted the prima facie case analysis as well. *fn6"

The state court never passed on Owens' competence to perform her work. Rather, it upheld the Trial Officer's findings of misconduct and 'gross insubordination.' We have no doubt that such misconduct may certainly provide a legitimate and nondiscriminatory reason to terminate an employee. This misconduct is distinct, however, from the issue of minimal qualification to perform a job. An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive.

 Id. (emphasis added) (internal footnote omitted).

 Again the Second Circuit sought to distinguish between a showing of qualifications for a job and performance on a job. A qualified employee for the purposes of proving a prima facie case, may still undertake "conduct on the job [that] is inappropriate or offensive." Id. A surgeon may be eminently qualified for a hospital position. Yet his daily tardiness or rude treatment of patients while performing his rounds would certainly provide the hospital with legitimate nondiscriminatory reasons for termination. This poor performance, however, must be evaluated in the second and third stages of the McDonnell Douglas framework. Such reasons cannot preclude the plaintiff from his day in court at the prima facie stage where the plaintiff's burden is merely de minimis.

 Based upon the above analysis, the Second Circuit stance on this issue is that a prima facie case may be established with little more than a showing of the skills needed to perform the job, and this has been more than established.

 1. "Performed the Job Satisfactorily "

 It remains incumbent upon this court to identify the flaws in the premise that the defendant forwards. There are three Second Circuit cases since the 1973 Supreme Court determination in McDonnell Douglas that have actually referenced or renamed the McDonnell Douglas "qualification" item as "performed the job satisfactorily." See Quaratino, 71 F.3d 58, 1995 U.S. App. LEXIS 32635, *15, 1995 WL 686653, at *7-8; see also Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994); Meiri, 759 F.2d at 995. *fn7" However, it is not at all clear that these cases attempted a reworking of the ...

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