hire her as Director of the Bureau of Benefits and Entitlements). However, Defendants argue that Plaintiff failed to prove any causal connection between her filing of the EEOC complaint and Defendants' failure to recall her or to hire her as Director of the Bureau of Benefits and Entitlements.
Proof of causal connection can be established indirectly by demonstrating that the protected activity was followed closely by discriminatory treatment. See id. Plaintiff offered proof that she suffered discriminatory treatment soon after filing her complaint. She demonstrated that others who were laid off in 1991, like Jean McEwen, were recalled by DFTA, but that she was not. Deposition of Jean McEwan at 11, 16-17; Tr. at 120. Most tellingly, she proved that she was treated differently from all the other applicants for the position of Director of the Bureau of Benefits and Entitlements. Tr. at 480-481, 489. Specifically, Plaintiff was the only applicant not interviewed by Michael Rabin, the person who made the hiring recommendations to the Commissioner. Tr. at 482. Instead, Plaintiff was interviewed by DFTA's personnel Director, who had no knowledge of Plaintiff's skills in the area of benefits and entitlements and who did not even attempt to learn of her previous accomplishments at DFTA. Tr. at 395, 401.
The jury was perfectly justified in finding that this evidence was sufficient to create an inference that Defendants were retaliating against Plaintiff for filing an age discrimination claim. The jury was also justified in rejecting Defendants' nonretaliatory reason for not hiring plaintiff -- that she was not the most qualified person for the job of Director of the Bureau of Benefits and Entitlements. Plaintiff offered ample evidence that her educational background and work experience made her eminently qualified for this position. In fact, Defendants' own witness conceded that, under Plaintiff's direction, the Bureau of Central Information and Referral had become DFTA's principal source for information about benefits and entitlements for the elderly.
Tr. at 561.
The jury had a "legally sufficient evidentiary basis" for concluding that Defendants acted in a retaliatory manner in failing to recall Plaintiff and/or in declining to hire her as Director of the Bureau of Benefits and Entitlements. The jury's finding was based not on "sheer surmise or conjecture," but on evidence presented at trial. Defendants' motion for judgment as a matter of law on this claim is therefore denied.
IV. The Statistical Evidence
Defendants assert that they are entitled to a new trial because the Court erred in admitting statistical evidence which was prejudicial to their case. Specifically, Defendants object to the admission of two charts. The first showed the average age of DFTA's highest ranking officials before Dr. Mathai-Davis took over as Commissioner; the second showed the average age of such officials fourteen months after she became Commissioner.
Defendants contend that such evidence should not have been admitted without testimony from expert witnesses explaining its significance.
This evidence was properly admitted. In Schulz v. Hickok Mfg., 358 F. Supp. 1208 (N.D. Ga. 1973), the court permitted the introduction of similar raw statistics showing that the average age of a group of managers had dropped by nearly 13 years in an 18 month period. The court noted that although such "statistics are not conclusive proof an employer's reasons for any particular discharge[,] they are relevant simply on the question of motive." Id. at 1213.
In permitting the statistical evidence here, the Court was careful to construct a charge which cautioned the jury not to attach too much importance to the evidence at issue. The jury was instructed that
. . . the statistics plaintiff showed you are not conclusive proof in any way of an employer's reasons for a particular discharge. They may be relevant simply on the question of motive. Naturally, it is for you to decide what relevance, if any, they have regarding defendants' motives.
Instructions to Jury, at 11. Thus, there was little danger that the jury would view the statistical evidence as sufficient proof that Defendants had discriminated against Plaintiff in discharging her.
Defendants cite a number of cases in support of their argument that Plaintiff's statistical evidence should not have been admitted. None of these cases is directly on point. Plaintiff relies on only one case from this Court and it does not deal with the admissibility of statistical evidence. Rather, the Court addressed the issue of whether the proffered statistical evidence was alone sufficient to prove that defendant's stated reason for its employment decision was pretextual. See Halbrook v. Reichhold Chemicals, Inc., 766 F. Supp. 1290, 1301-1302 (S.D.N.Y. 1991), aff'd, 956 F.2d 1159 (2d Cir. 1992).
This issue is irrelevant here, where the disputed statistical evidence was accompanied by a variety of other evidence that Defendants acted in a discriminatory manner.
Defendants point to several cases in which courts have declined to admit statistical evidence without explanation from expert witnesses. See, e.g., Carter v. Ball, 33 F.3d 450, 456-57 (4th Cir. 1994) (a judge may be justified in choosing to exclude statistical evidence offered without expert testimony concerning methodology or relevance); Wingfield v. United Technologies Corp., 678 F. Supp. 973, 983 (D. Conn. 1988) (precluding introduction of raw statistics without expert testimony to explain standard deviation). None of these cases, however, establishes that expert testimony is an absolute prerequisite to the admission of statistical evidence. Naturally, the usefulness of statistics depends largely on the surrounding facts and circumstances. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340, 97 S. Ct. 1843, 1857, 52 L. Ed. 2d 396 (1977). In the instant action, where the proffered evidence was easily understandable, and the jury was carefully instructed as to its consideration of such evidence, the admission of this evidence was not error. Accordingly, Defendants' motion for a new trial based on this alleged error is denied.
V. Excessive Damages
Defendants assert that they are entitled to a new trial or a substantial remittitur because the jury's damage award is not supported by the evidence. A new trial may be granted where the amount of the jury's verdict is "clearly excessive." See Paturzo v. Metro-North Commuter Railroad, 751 F. Supp. 1086, 1087 (S.D.N.Y. 1990). "The standard for review of damage awards is whether the reward is so high as to shock the judicial conscience, constituting a denial of justice." Id. On a motion for a new trial,
the trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been, then it is [her] duty to set the verdict aside; otherwise not.
Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978).
A. Excessive Award
A careful review of the record demonstrates that the jury's award is clearly excessive. At trial, Plaintiff presented evidence that she would have received a 4.5% raise in 1992; that in late 1992 she should have been hired as Director of the Bureau of Benefits at a salary of $ 70,000; and that the value of fringe benefits associated with her employment at DFTA was equal to 35% of her salary. Tr. at 135, 410, 480-82, 489, 561. If the jury accepted all of this evidence as true, Plaintiff's total lost wages and benefits would equal a maximum of $ 415,448.23. This figure, which includes no discount for Plaintiff's post-termination earnings, is $ 84,551.77 less than the jury awarded.
Plaintiff offers several explanations for this discrepancy. She contends that $ 14,705.90 of it is attributable to money she should have received for annual leave and sick leave that had vested by the time she lost her job. The remainder, she asserts, consists either of an award of prejudgment interest, or of pension and/or social security benefits that the jury determined she lost when her job was terminated.
Plaintiff's explanations are not supported by the record. The evidence demonstrated that Plaintiff received payment for all of the annual leave and sick leave to which she was entitled; indeed, Plaintiff's counsel did not even ask the jury to provide such compensation when he described her damages in his closing argument. Tr. at 510-512, 678-79. The jury could not properly have awarded interest, since it heard no evidence regarding prevailing interest rates and received no instruction authorizing an award of interest. Nor can the discrepancy be explained as an award of lost social security and pension benefits. Although Plaintiff presented evidence that she received benefits at DFTA equal to 35% of her salary, she did not present any evidence of pension or social security benefits not included in that 35% figure.
B. Post-Termination Earnings
The jury erred in failing to subtract from its award $ 33,562 in post-termination pension benefits that Plaintiff would not have received if she had continued working at DFTA. See Defendants' Exs. YYY, ZZZ. This payment should have been setoff against any award of back pay. See Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86-87 (2d Cir. 1983). Otherwise DFTA would, in effect, be paying plaintiff wages and retirement benefits for the same period. See Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 258 (2d Cir. 1991), cert. denied, 502 U.S. 1060, 112 S. Ct. 939, 117 L. Ed. 2d 110 (1992).
Unemployment benefits Plaintiff received after her dismissal must also be deducted from her back pay award.
The question of "whether unemployment compensation and social security benefits should automatically be deducted from an award of lost wages has not been answered by this circuit." Id. Where courts have declined to deduct unemployment benefits, they have cited the "collateral source rule," which provides that a tortfeasor should not benefit from the fact that a plaintiff has received funds from a third party as a result of her injury. See, e.g., Dailey v. Societe Generale, 889 F. Supp. 108, 113 (S.D.N.Y. 1995); Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1112-13 (8th Cir.), cert. denied, 115 S. Ct. 335 (1994).
The "collateral source rule" does not apply here because the City of New York is the entity which effectively pays Plaintiff's unemployment compensation.
See Williams v. Secretary of the Navy, 853 F. Supp. 66, 72 (E.D.N.Y. 1994) (declining to apply collateral source rule because "the source of federal employees' unemployment compensation is not collateral, but effectively is the federal employer"). Defendants are therefore entitled to have the unemployment compensation Plaintiff received deducted from her back pay award.
The jury's back pay award is "clearly excessive" and to let it stand would result in a "miscarriage of justice." The maximum the jury could have allocated for lost wages and benefits, without any setoff for post-termination earnings, is $ 415,448.23. Moreover, $ 41,562 must be deducted from this amount for pension and unemployment benefits plaintiff received after February 22, 1991. The jury's back pay award must therefore be reduced to $ 373,886.23, the maximum amount that would not be excessive.
See Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328-30 (2d Cir. 1990). If Plaintiff does not consent to this reduction, a new trial will be granted.
VI. Front Pay and Benefits
Plaintiff moves for an award of front pay and the restoration of the full pension and social security benefits that would have accrued had she continued working at DFTA. An award of front pay is an appropriate remedy under the ADEA in certain limited circumstances. See Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2d Cir. 1984). As this Court has explained:
An award of front pay presupposes, first, that reinstatement is either impossible or impracticable. Second, a front pay award is appropriate and may even be necessary "in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment." Finally, front pay may properly be awarded where calculation of both the plaintiff's likely mitigated earnings and the income plaintiff would likely have earned if he or she had continued in the defendant's employ do not involve "undue speculation."