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July 7, 1999


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


After a seven-day jury trial that concluded on April 8, 1998, the jury awarded Daniel Sharkey ("plaintiff") damages of $1,427,200 against defendant Ultramar Corporation ("defendant"),*fn1 finding that the defendant had violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., while plaintiff was in the corporation's employ. Defendant filed a timely motion for judgment as a matter of law pursuant to Fed. R.Civ.P. 50(b) or, in the alternative, a new trial under Fed.R.Civ.P. 59(a). For the reasons stated herein, defendant's motion is denied.


The facts concerning this action are set forth in the Court's three prior decisions, Sharkey v. Lasmo, 15 F. Supp.2d 401 (S.D.N.Y. 1998); 992 F. Supp. 321 (S.D.N.Y. 1998); 906 F. Supp. 949 (S.D.N.Y. 1995), and familiarity with those opinions is presumed. The facts pertinent to the instant motion are as follows. Plaintiff had been employed by Ultramar Energy Limited ("UEL") in its Tarrytown, New York offices. UEL was a subsidiary of Ultramar PLC. In early 1992, a corporation named Lasmo took control of Ultramar PLC and its subsidiaries, including UEL. In or about June of 1992, pursuant to a corporate re-organization plan, Lasmo decided to close down UEL's Tarrytown operations and consolidate functions previously performed there into the company's Montreal, Canada location. As part of this reorganization, Lasmo formed defendant Ultramar Corporation, a shell corporation with no business activities. Three UEL vice-presidents, specifically plaintiff, Michael Kuzmin, and Patrick McAward, were all given offers to re-locate to Montreal. Plaintiff was fifty-nine years old at this time, whereas Kuzmin was forty-two and McAward was thirty-five. Plaintiff claimed that, due to his age, he was given a substantially less favorable offer to re-locate than the two other vice-presidents. After protesting this disparity to no avail, plaintiff declined defendant's offer of employment and subsequently commenced the action presently before this Court. The jury found for plaintiff as against Ultramar Corporation, but found that Ultramar's co-defendant Lasmo was not liable.


I. Defendant's Claims for Judgment as a Matter of Law

A. Legal Standard

Claiming insufficiency of evidence, defendant moves this Court to vacate the jury's verdict and grant judgment for defendant pursuant to Fed.R.Civ.P. 50(b) or, in the alternative, to order a new trial under Rule 59. The standards for determining Rule 50(b) and Rule 59 motions are different — Rule 59 motions for a new trial are resolved under a less stringent standard than Rule 50(b) motions for judgment as a matter of law. See, e.g., Mono v. Peter Pan Bus Lines, Inc., 13 F. Supp.2d 471, 475 (S.D.N Y 1998); Martinez v. Gayson, No. 95 Civ. 3788(ILG), 1998 WL 564385, *3 (E.D.N.Y. June 30, 1998); Mahoney v. Canada Dry Bottling Co., No. 94 Civ. 2924(FB), 1998 WL 231082, *4 (E.D.N Y May 7, 1998).

As the Court of Appeals has instructed in assessing Rule 50(b) motions, district courts are required to:

  consider the evidence in the light most favorable to
  the party against whom the motion was made and to
  give that party the benefit of all reasonable
  inferences that the jury might have drawn in his
  favor from the evidence. The court cannot

  assess the weight of conflicting evidence, pass on
  the credibility of the witnesses, or substitute its
  judgment for that of the jury[.]

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995) (internal quotations omitted). A Rule 50(b) motion should only be granted where there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against the moving party. . . ." Id. (internal quotations omitted).

In contrast, under Rule 59 a district court need not view the evidence in the light most favorable to the non-movant and the court may independently weigh the evidence. See Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). However, the standard to order a new trial is still a strenuous one. The standard by which such a motion is judged is whether "the jury has reached a seriously erroneous result or . . . [a] verdict [that] is a miscarriage of justice." Id. (internal quotations omitted). In applying this standard,

  [t]he 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.

Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978).

As to the Rule 50(b) motion, for the reasons that follow, we find that there was sufficient evidence to sustain the verdict. As to the Rule 59 motion, we do not believe that this verdict is seriously erroneous or represents such a miscarriage of justice as would warrant a new trial.

  B. Defendant's Claim of Insufficient Evidence of

Defendant claims that the evidence presented at trial was so insufficient that we are required to vacate the verdict and either enter judgment for defendant or order a new trial. More precisely, defendant argues that plaintiff failed to meet its burden for proving an ADEA claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If plaintiff satisfies this burden, the employer must then "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell, 411 U.S. at 802, 93 S.Ct. 1817. If this is done, the plaintiff has the burden "to show that [the employer's] stated reason . . . for [its treatment of plaintiff was] in fact pretext." Id. at 804, 93 S.Ct. 1817.

While both plaintiff and defendant use their post-trial briefs to engage in a lengthy analysis of whether defendant presented a legitimate non-discriminatory reason for their actions in response to plaintiff's prima facie showing of discrimination, their argument miss the main point. It is well-established that the burden of meeting the first two requirements of the McDonnell Douglas test is an easy one. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47 (2d Cir. 1998); Viola v. Philips Medical Sys., 42 F.3d 712 (2d Cir. 1994). Few post-trial motions, if any, should turn on either of these factors, since plaintiff's failure to make even a prima facie showing of discrimination or defendant's failure to present any legitimate non-discriminatory reason for its actions should reveal itself well before the post-trial stage. As will be explained further, the first two McDonnell Douglas steps were easily satisfied in this case. This motion, like most post-trial motions of this type, turns on the third McDonnell Douglas factor: was there sufficient evidence to show that the reason given by defendant for treating plaintiff differently from other similarly situated employees was a merely pretextual justification for discrimination? Although evidence was submitted to show that the defendant's proffered reason for its actions was mere pretext, this does not necessarily compel a verdict for plaintiff, because the ultimate burden of proving discrimination still rests with plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). It does, however, permit the trier of fact to infer that discrimination occurred. Id. For the reasons stated below, we hold that there was sufficient evidence presented at trial to satisfy us that the jury's verdict should not be set aside. Plaintiff cast sufficient doubt on defendant's proffered reasons for the employment decisions it made regarding plaintiff that a reasonable jury could infer that the real reason for defendant's actions was age discrimination.

Before demonstrating the sufficiency of the evidence on the issue of pretext, however, we comment briefly on plaintiff's prima facie showing of discrimination. First, there was clear disparity between the treatment of plaintiff and two similarly situated but younger vice-presidents in the offers to relocate to Montreal. McAward and Kuzmin were offered: 1) increases of 11% in salary for McAward and 6% for Kuzmin; 2) stock options in the new company equal in value to one year's salary; 3) restricted stock in the company equal in value to one-half of a year's salary; 4) participation in the company's bonus plan, with a minimum bonus equal to 15% in salary; 5) annually renewable relocation benefits to cover the expense of relocating and living in a foreign country; and 6) a two-year renewable term of employment with a severance guarantee equaling two years of payment (as long as McAward and Kuzmin worked a minimum of eighteen months for the company).

In contrast, plaintiff presented credible evidence that he was offered only: 1) a limited, non-renewable two-year term of employment, during which time he was to train his successor; 2) a $20,000 decrease in salary; and 3) a severance payment, if he remained employed for the full two years, equal to two-thirds of one-year's salary. Plaintiff was not offered stock options or restricted stock in the new company, nor offered bonus plan participation, nor relocation benefits. While defendant suggested that many of these perquisites were not offered simply because "negotiations ...

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