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August 2, 1997

ANTHONY A. TANZINI, Plaintiff, against MARINE MIDLAND BANK, N.A., Defendant.

The opinion of the court was delivered by: MCAVOY

 Currently pending before the Court in this action are the parties' post-trial motions. Defendant moves for (1) judgment as a matter of law, or, in the alternative, for a new trial; and (2) a new trial on the issue of compensatory damages and front pay. Plaintiff moves (1) to amend the judgment to include front pay; and (2) for attorneys' fees, expenses and costs.


 The factual background of this action is contained in the Court's prior decision on defendant's summary judgment motion, familiarity with which is assumed. See Tanzini v. Marine Midland Bank, 952 F. Supp. 937 (N.D.N.Y. 1997). A trial on plaintiff's age and disability discrimination claims was held between April 18, 1997 and May 5, 1997 in Binghamton, New York. On May 5, 1997, the jury returned a verdict in plaintiff's favor on his claim that he was terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York Human Rights Law ("HRL"), N.Y. Exec. L. § 290 et seq. The jury found for defendant on plaintiff's age discrimination claim based upon failure to promote, as well as on plaintiff's claims of disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and the HRL.

 The jury further awarded plaintiff $ 200,000 in compensatory damages, $ 80,000 in back pay, $ 250,000 in front pay, and found that defendant's ADEA violation was willful. Because of the willful violation, the Court doubled the backpay award, and on May 6, 1997, entered judgment for plaintiff in the amount of $ 360,000. *fn1"


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

 1. Standard

 The Second Circuit has established the standard for granting judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980), stated that:

 Id. at 167-68; see Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997); Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). *fn2" Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires pursuant to Rule 50(a), or motion after the jury has spoken pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.

 2. The Standard Applied

 Defendant first argues that no reasonable jury could conclude from the evidence presented at trial that age was a determinative factor in defendant's decision to discharge plaintiff.

 It is now well-established in this Circuit that the familiar Title VII burden-shifting analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) also applies to claims brought pursuant to the ADEA. Levin v. Analysis & Technology, Inc., 960 F.2d 314, 316 (2d Cir. 1992); Hollander v. American Cyanamid, Co., 895 F.2d 80, 83 (2d Cir. 1990); Montana v. First Federal S.& L. of Rochester, 869 F.2d 100, 103 (2d Cir. 1989); Pena v. Brattleboro Retreat, 702 F.2d 322, 323-24 (2d Cir. 1983).

 Under this framework, plaintiff initially must establish the elements of a prima facie case by showing: 1) he is a member of the protected age group; 2) he was qualified for his position; 3) he was discharged; and 4) that his discharge occurred under circumstances giving rise to an inference of age discrimination. Burger v. New York Institute of Technology, 94 F.3d 830, 832 (2d Cir. 1996); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir.1995). If plaintiff establishes these elements, the burden of production then shifts to the employer to articulate, "'through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993) (quoting Burdine, 450 U.S. 248 at 255, 67 L. Ed. 2d 207, 101 S. Ct. 1089). If the employer meets this burden, the presumption of discrimination arising from plaintiff's prima facie case "drops out of the picture." Hicks, 113 S. Ct. at 2749. "The onus [then] returns to the plaintiff who ultimately must demonstrate by a preponderance of the evidence that the stated reasons are merely a pretext for discrimination," Levin, 960 F.2d at 317 (citing Burdine, 450 U.S. 248 at 255-56), and that age was the real reason for the discrimination. Hicks, 509 U.S. at 507-08. Throughout this sequence of proof, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.

 Defendant concedes that plaintiff established a prima facie case of age discrimination at trial. (Def. Mem. in Support at 8). Moreover, the Court found that defendant at trial articulated a non-discriminatory reason for plaintiff's termination. (Transcript ["Tr."] at 1105). Thus, defendant's only argument in this regard is that no jury could reasonably conclude that defendant's proffered reason for plaintiff's termination was pretextual and that age discrimination was the real reason.

 As to pretext, defendant argues that plaintiff's mere disagreement with Mr. Fornorala's decision to terminate him to make way for Ms. Majewski, a younger employee, is insufficient to show that Fornorola's decision was a pretext for discrimination. In particular, defendant relies upon plaintiff's testimony to the effect that he disagreed with Fornorala's use of "subjective data" in reviewing the branch managers to decide which one should be terminated. (Tr. 1549-64; 1601-16; see Grasso Aff. Ex. D). If the Court shared defendant's myopic view of the evidence of pretext, it would readily agree with defendant. Such is not the case.

 First, plaintiff presented evidence at trial casting suspicion upon Fornorola's professed reliance upon the handwritten chart. Plaintiff was listed for termination under the reduction in force as early as October of 1992; in the same document, Majewski was listed for transfer. (Pl. Ex. 22). Patrick O'Leary testified that at the meeting during which Exhibit 22 was created, it was decided that "Mr. Tanzini was going to be RIF'd." (Tr. at 802). Thus, the jury might reasonably have determined that the decision to terminate plaintiff had been made well before Fornorola allegedly created the chart for the 1992 evaluations, which themselves were not prepared until January of 1993. (Pl. Exs. 63-79). Hence, plaintiff's termination may have been a fait accompli at the time of Fornorola's alleged "revisiting" of the chart in connection with the RIF, in late December of 1992 or early January of 1993. (Tr. at 541-42).

 Moreover, the Court noted in its prior decision that the chart itself is "exceptionally confusing," and that it illustrates that "many younger . . . employees with the same or lower ratings were not terminated." Tanzini, 952 F. Supp. at 943. Indeed, the slapdash nature of the handwritten chart itself, when compared with defendant's otherwise rigid, formulaic approach to performance evaluations (see Pl. Ex. 63-79), lends further credence to plaintiff's theory of pretext. Judgment as a matter of law is not warranted on this basis.

 In arguing that no reasonable jury could conclude that age was a determinative factor in defendant's decision to terminate plaintiff, defendant argues that since plaintiff was promoted and subsequently terminated by the same person, and was a member of the protected class at both times, a strong inference against discrimination arises. See, e.g., Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995), cert. denied, 516 U.S. 1078, 133 L. Ed. 2d 736, 116 S. Ct. 785 (1996); Rand v. CF Industries, Inc. 42 F.3d 1139, 1147 (7th Cir. 1994); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993), cert. denied, 511 U.S. 1018, 128 L. Ed. 2d 72, 114 S. Ct. 1398 (1994); Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991). Defendant's reliance on such an inference, however, presumes that the jury found that plaintiff was promoted and terminated by Fornorola. Such a finding, however, was not compelled by the evidence. As mentioned above, evidence was presented that the initial decision to terminate plaintiff was made at an October 22, 1992 meeting. (Tr. at 802; Pl. Ex. 22). However, Fornorola testified that he was not present at the meeting:

Q. It was not -- you were not at -- were you at any meetings in October when it was decided to terminate Mr. Tanzini?
A. No. I was in no meetings in October where it was decided to terminate Tony.

 (Tr. 336). Other testimony indicated that upper management approved the decision to terminate plaintiff. (Tr. 961). Since a factual issue was present as to who was involved in plaintiff's termination, the jury was not ...

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