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MEACHAM v. KNOLLS ATOMIC POWER LAB.

February 13, 2002

CLIFFORD B. MEACHAM; THEDRICK L. EIGHMIE; AND ALLEN G. SWEET, ALL INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED; AND JAMES R. QUINN, PHD; DEBORAH L. BUSH; RAYMOND E. ADAMS; WALLACE ARNOLD; WILLIAM F. CHABOT; ALLEN E. CROMER; PAUL M. GUNDERSEN; CLIFFORD J. LEVENDUSKY; BRUCE E. PALMATIER; NEIL R. PAREENE; WILLIAM C. REYNHEER; JOHN K. STANNARD; DAVID W. TOWNSEND; AND CARL T. WOODMAN, PLAINTIFFS,
V.
KNOLLS ATOMIC POWER LABORATORY, AKA KAPL, INC.; LOCKHEED MARTIN, INC.; AND JOHN J. FREEH, INDIVIDUALLY AND AS AN EMPLOYEE OF KAPL AND LOCKHEED MARTIN, DEFENDANTS. JAMES R. QUINN, PHD, PLAINTIFF, V. KNOLLS ATOMIC POWER LABORATORY, INC., AKA KAPL, INC.; LOCKHEED MARTIN, INC.; AND JOHN J. FREEH, INDIVIDUALLY AND AS AN EMPLOYEE OF KAPL AND LOCKHEED MARTIN, DEFENDANTS.



The opinion of the court was delivered by: David R. Homer, United States Magistrate Judge.

            MEMORANDUM-DECISION AND ORDER

I. Introduction

The twenty-six plaintiffs, all over age forty, were employed by defendant Knolls Atomic Power Laboratory, Inc. ("KAPL") until 1996 when their employment was terminated in an involuntary reduction-in-force (IRIF). Plaintiffs then commenced this class action*fn1 against KAPL, Lockheed Martin, Inc., KAPL's parent company, and John J. Freeh ("Freeh"), KAPL's President and General Manager, alleging that their terminations violated 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. Law § 290 et seq. (McKinney 2001).*fn2 Plaintiffs allege that the violations resulted from both disparate treatment and disparate impact. Following trial, a jury returned verdicts in favor of the plaintiffs on their disparate impact theory, in favor of defendants on the disparate treatment theory, and awarded damages totaling $5,077,285.33. Judgment was entered on the verdicts. Am. J. (Docket No. 133).

Presently pending are (1) defendants' motion for judgment as a matter of law, a new trial and remittitur (Docket No. 137; (2) plaintiffs' motion for prejudgment interest, postjudgment interest and an upward adjustment of damages for increased taxes (Docket No. 138); and (3) plaintiffs' motion for attorneys' fees and costs (Docket No. 197). For the reasons which follow, defendants' motion for judgment as a matter of law is denied and their motion for a new trial and remittitur is granted in part and denied in part. Plaintiffs' motion for prejudgment interest is granted in part and denied in part, their motion for postjudgment interest is granted and their motion for an upward adjustment of damages for increased taxes is denied. Finally, plaintiffs' motion for attorneys' fees and costs is granted.

II. Background

A. The IRIF

KAPL operates a laboratory to design, build and test prototype naval nuclear reactors and to train United States Navy personnel in their operation and maintenance. KAPL employs approximately 2,700 individuals principally at sites in Niskayuna and West Milton, New York, both within forty miles of Albany. KAPL operates the laboratory under a "cost-plus" contract between the United States Department of Energy (DOE) and Lockheed Martin by which KAPL receives reimbursement for expenses it incurs plus a percentage of those expenses. The contract is overseen by DOE's Schenectady Naval Reactors Office (SNR).

The twenty-six prevailing plaintiffs were employed in exempt, or salaried, positions in various of KAPL's sixteen sections.*fn3 The sixteen sections were headed by managers who reported directly to Freeh. Each section was also subdivided into sections headed by subsection managers. Certain subsections were further subdivided into units headed by unit managers.

In March 1994, KAPL began formulating a plan to reduce its workforce by approximately 140 positions in accordance with budget projections coordinated between KAPL and SNR. KAPL conceived and adopted a "Workforce Adjustment Plan" (WAP) to achieve the desired reduction in two stages. The first was the "Voluntary Separation Plan" (VSP) by which KAPL offered early retirement to employees with at least twenty years of service in return for the payment of $20,000. The second was the IRIF. In the Fall of 1995, KAPL offered the VSP to its employees. Ultimately, 107 employees applied and were approved for the VSP.

In November 1995, KAPL proceeded with the IRIF.*fn4 First, KAPL identified the positions within the sixteen sections which were to be eliminated. This "excess skills analysis" sought to determine those positions which KAPL could terminate with the least adverse effect on KAPL's operations. These included, for example, specialized positions in reduced demand. After the employees in those excess positions were identified, the section, subsection and unit managers were directed to evaluate the individuals in those positions by a prescribed process which resulted in the assignment of a numerical score for each employee subject to the IRIF.

First, the managers assigned scores of from zero to ten points to each such employee in four categories: length of service, work performance, criticality to KAPL's operations, and the flexibility of their talents. For length of service, each employee subject to the IRIF was given one point for every two years of service to a maximum of ten points.*fn5 For work performance the subject employees were assigned scores based on their previous two performance evaluations.*fn6 For criticality and flexibility, subject employees were assigned ratings points in each category by their managers.

Second, subject employees were then placed on matrices grouped by category of excess skill and were ranked according to their numerical scores. The employees with the lowest scores on the matrices were selected for the IRIF.*fn7 KAPL made efforts to place these employees in other vacant positions within KAPL before final decisions were made. On December 6, 1995, KAPL served notices on thirty-one exempt employees and five non-exempt employees that their employment was terminated in the IRIF effective January 12, 1996.*fn8 Because of KAPL's security concerns, terminated employees were given three hours after receiving their notice to pack their personal belongings and were then escorted off the premises.

At the time of the IRIF, KAPL employed 2,063 individuals in exempt positions after the VSP. Of those, 1,203, or fifty-eight percent, were forty years of age or older [hereinafter "older employees"]. Of those, 245 were considered for the IRIF. Of the 245, 179, or seventy-three percent, were older employees. Of the thirty-one exempt employees selected for the IRIF, thirty, or ninety-seven percent, were older employees.*fn9 The terminated employees received certain benefits, including severance totaling one week of pay for every year of service to a maximum of twenty-six weeks; continuation of benefits for one year; and the free use and services of an employment counseling service outside KAPL.

B. The Trial

Plaintiffs commenced this action on January 6, 1997.*fn10 Defendants KAPL and Lockheed Martin were named in the ADEA cause of action and all three defendants were named in the HRL cause of action. Plaintiffs alleged two theories of liability under both the ADEA and the HRL — disparate treatment and disparate impact. Compl. (Docket No. 1). Defendants' motion to bifurcate the trial between liability and damages was granted, Docket No. 59, and the trial on liability commenced before a jury on June 20, 2000. On July 26, 2000, the jury returned a verdict finding under plaintiffs' disparate impact theory that the defendants had discriminated against the twenty-six exempt employees and that such discrimination had been willful. The jury found in favor of defendants on plaintiffs' disparate treatment theory of discrimination. Docket No. 86.

Prior to the commencement of the damages phase of the trial, eight plaintiffs*fn11 settled their claims with defendants. See Docket Nos. 111-17 & 121. The trial on damages commenced before the same jury on September 19, 2000. Evidence was presented in four groups of plaintiffs with four or five plaintiffs in each group and with the jury returning a separate verdict for each group. The verdict for the final group was returned on November 22, 2000. The jury's verdicts on damages awarded the remaining eighteen prevailing plaintiffs total damages as follows:

Plaintiff Amount Awarded
Raymond E. Adams $411,823.13
Wallace Arnold $526,825.81
Deborah L. Bush $246,509.50
William R. Chabot $119,734.85
Allen E. Cromer $109,386.97
Thedrick L. Eighmie $91,445.00
Paul M. Gundersen $160,218.71
Clifford J. Levendusky $190,605.55
Clifford B. Meacham $125,000.00
Bruce E. Palmatier $332,126.09

Christine A. Palmer*fn12 $78,812.50

Neil R. Pareene $283,783.95
James R. Quinn $68,921.04
William C. Reynheer $1,115,357.58
John K. Stannard $258,189.40
Allen G. Sweet $128,953.46
David W. Townsend $397,482.91
Carl T. Woodman $432,108.88

Docket Nos. 119, 124, 126 & 128. Judgment was entered on the verdicts. Docket No. 133. These motions followed.

III. Defendants' Motion

Defendants move for an order (1) granting judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), or in the alternative (2) granting a new trial pursuant to Fed. R. Civ. P. 59, or (3) granting remittitur on certain of plaintiffs' damage awards.

A motion for judgment as a matter of law under Rule 50 should be granted when "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the moving] party on that issue." Fed.R.Civ.P. 50(a)(1). The standard under Rule 50 "mirrors" that for a motion for summary judgment under Fed.R.Civ.P. 56. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). On a motion under Rule 50, a court must consider all evidence in the record and not simply the evidence favorable to the nonmovant. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149 (2000); Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001). "In doing so, however, the court must draw all reasonable inference in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves, 530 U.S. at 149 (citations omitted). Thus, in reviewing the entire record, a court should consider only that evidence favorable to the nonmoving party and any evidence supporting the moving party which is uncontradicted and unimpeached. Id.

The standard for granting a new trial under Rule 59 is less demanding. "[U]nlike a motion for judgment as a matter of law, a trial judge considering a motion for a new trial is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (internal quotations and citation omitted); see also Funk v. F & K Supply, Inc., 43 F. Supp.2d 205, 224 (N.D.N.Y. 1999 (McAvoy, J.). Thus, " `a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict.'" Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000) (quoting Landau, 155 F.3d at 104). A court should grant a new trial if "convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Caruolo, 226 F.3d at 54 (internal quotations and citation omitted).*fn13

A. Timeliness

A motion for judgment as a matter of law and for a new trial following a jury verdict must both be filed within ten days of the entry of judgment. Fed.R.Civ.P. 50(b), 59(b). The original judgment in this case was filed on December 5, 2000. Docket No. 131.*fn14 Thus, excluding Saturdays, Sundays and legal holidays as required by Fed.R.Civ.P. 6(a), defendants' motion was required to be filed on or before December 19, 2000. On December 19, 2000, defendants filed the instant notice of motion and a supporting affidavit. Docket No. 137. In an order filed the same day, defendants were granted until February 1, 2001 to file and serve supplemental pleadings in support of their motion. Docket No. 136. Defendants timely filed a memorandum of law in support of their motion on February 1, 2001. Docket No. 196. As a threshold matter, plaintiffs now contend that defendants' motion is untimely because their memorandum of law was not filed within the ten days required by the rules. Pls. Mem. of Law (Docket No. 203) at 2-6.

The ten day time limit for this motion is jurisdictional and could not be extended. See Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 401 (2d Cir. 2000) (describing time limit as "uncompromisable"); Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 230 (2d Cir. 2000); Fed.R.Civ.P. 6(a). If a motion is not filed within the ten day period, the district court is divested of jurisdiction to consider the motion. See Weissman, 224 F.3d at 230. There is no dispute that defendants completed the filing and service of their notice of motion and supporting affidavit within the ten day period. Plaintiffs' contention here thus requires a determination of when a motion is deemed filed for purposes of Rules 50 and 59.

Generally, a motion is deemed filed when it is delivered to the Clerk's Office. See Wight v. BankAmerica Corp., 219 F.3d 79, 85 (2d Cir. 2000). Defendants' notice of motion and affidavit were delivered to the Clerk's Office and served within the ten day period. Plaintiffs argue that such filing was not effective for purposes of Rules 50 and 59, however, because the papers filed failed to include a memorandum of law as required by N.D.N.Y.L.R. 7.1(a)(1) and 7.1(g). Plaintiffs also argue that allowing defendants to file their memorandum of law six weeks after their notice of motion was filed circumvents the purpose of the ten day limits in Rules 50 and 59.

Plaintiffs arguments fail for at least two reasons. First, defendants' motion was accepted for filing by the Clerk and the Court on December 19, 2000 and for that reason alone should be deemed filed as of that date. See Wight, 219 F.3d at 85 (holding that the district court's treatment of a motion filed under Rule 59 as timely supported the conclusion that the motion timely filed even though supplemental pleadings were filed after the ten day period to cure technical defects in the original pleadings). Second, the requirement in the local rules that a memorandum of law accompany any motion may be excused or delayed if "good cause is shown." N.D.N.Y.L.R. 7.1(b)(3). Here, given the length and complexity of the trial and the fact that a transcript of the trial was not completed until January 9, 2001 (Docket Nos. 143-95), good cause existed for permitting defendants additional time to file and serve their memorandum of law. Thus, the delayed filing of the memorandum of law did not vitiate the timeliness of defendants' motion under the local rules. Moreover, a district court possesses the inherent power to authorize departures from the requirements of its local rules. See Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1048-49 (2d Cir. 1991) ("it is the business of the district court to determine whether fairness demands that noncompliance [with local rules] be excused"); see also Wight, 219 F.3d at 85-86 (approving the district court's "`tailor[ing] the Local Rules to best achieve a just outcome.'") (quoting Somlvo, 932 F.2d at 1049).

Accordingly, defendants' motion here was timely filed and plaintiffs' contention to the contrary must be rejected.

B. Liability

A plaintiff may establish violations of the ADEA and the HRL under theories of disparate treatment and disparate impact. Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 115 (2d Cir. 1992); see also Smith v. Xerox Corp., 196 F.3d 358, 363 n. 1 (2d Cir. 1999) (holding that claims under the ADEA and the HRL "are analyzed identically"); Gonzalez v. City of New York, 135 F. Supp.2d 385, 399-400 & nn. 9, 11 (E.D.N.Y. 2001) (holding that disparate impact age discrimination claim may be asserted under the HRL and analyzed identically to those brought under the ADEA). Disparate treatment requires evidence that an employer intentionally discriminated against a person forty years of age or older while "[d]isparate impact . . . results from the use of employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on a protected group and cannot be justified by business necessity." Maresco, 964 F.2d at 115 (internal quotation and alteration omitted); see also District Council 37, AFSCME v. New York City Dep't of Parks & Recreation, 113 F.3d 347, 351 (2d Cir. 1997). Disparate impact age discrimination does not require proof of discriminatory intent. Smith, 196 F.3d at 364 (citing Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)). Rather, the disparate impact theory addresses employment practices "that are fair in form but discriminatory in impact." Griggs, 401 U.S. at 431. Although courts of appeals are divided over the viability of the disparate impact theory under the ADEA, this theory of proof remains available in the Second Circuit. See Smith, 196 F.3d at 367 & n. 6.

To recover under a disparate impact claim, a plaintiff must first establish a prima facie case "by identifying a specific employment practice which, although facially neutral, has had an adverse impact on her as a member of a protected class." Smith, 196 F.3d at 364 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)); Knighton v. City of Syracuse Fire Dep't, 145 F. Supp.2d 217, 224 (N.D.N.Y. 2001) (Scullin, C.J.); Gonzalez, 135 F. Supp.2d at 399; Hogan v. General Elec. Co., 109 F. Supp.2d 99, 104 (N.D.N.Y. 2000) (Hurd, J.). The burden then shifts to the employer to offer a business necessity for the challenged employment practice. Smith, 196 F.3d at 365; Hogan v. Metromail, 167 F. Supp.2d 593, 595 (S.D.N.Y. 2001). If an employer offers such a business necessity, the burden then returns to the plaintiff to "show that the employer's proffered reason was merely a pretext for discrimination." Id.; Knighton, 145 F. supp.2d at 224. Defendants contend on this motion that plaintiffs failed at each of these steps of their claim and as well failed to establish that the defendants' conduct was willful or that defendants were liable under the HRL.

1. Plaintiffs' Prima Facie Case

Defendants contend that plaintiffs' evidence failed to establish a prima facie case as a matter of law because (a) plaintiffs failed to identify a facially neutral employment practice, (b) the statistical evidence was insufficient, and (c) the testimony of plaintiffs' statistical expert witness was improperly admitted and insufficient. Defs. Mem. of Law at 8-16.

First, however, the issue presented here follows a trial on the merits. "It is well-established that once a [discrimination] case has been fully tried on the merits, the question whether the plaintiff has established a prima facie case is no longer relevant." Ottaviani v. State Univ. of New York, 875 F.2d 365, 373 (2d Cir. 1989) (citing Mitchell v. Baldrige, 759 F.2d 80, 83 (D.C. Cir. 1985)) (internal quotations omitted).*fn15 Thus, "the only issue to be decided at that point is whether the plaintiffs have actually proved discrimination." Bazemore v. Friday, 478 U.S. 385, 398 (1986). Because this case has been fully tried, defendants' motion on this ground is denied since the only cognizable issue at this stage is whether plaintiffs proved discrimination. In the alternative, however, defendants' arguments concerning plaintiffs' prima facie case are considered on their merits.

a. Facially Neutral Employment Practice

Plaintiffs' initial burden under the disparate impact theory required, inter alia, that they identify "a specific employment practice which, although facially neutral, has had an adverse impact on" older employees. Smith, 196 F.3d at 364; Gonzalez, 135 F. Supp.2d at 399. Plaintiffs identified "the implementation of the exempt employee [IRIF] portion of the WAP." Pls. Mem. of Law (Docket No. 203) at 11-13. Defendants contend that this employment practice was insufficiently specific to satisfy plaintiffs' burden.

The requirement that a plaintiff specify the employment practice which he or she alleges caused the discrimination serves to insure that an employer not be held liable for discrimination simply because a result appeared discriminatory numerically. See Smith, 196 F.3d at 367-68; see also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58 (1989). Thus, "a plaintiff generally cannot rely on the overall decision-making process . . . [as] a specific employment practice." Smith, 196 F.3d at 367.

Plaintiffs contend that because the implementation of the guidelines for the IRIF was a component of defendants' WAP, which included other components such as the VSP, employee retraining and transfers, their specification of the "implementation" of the IRIF satisfied its burden of identifying a specific employment practice. Such identification, however, actually specifies the decision-making process by which exempt employees were selected for the termination of their employment. The implementation identified here by plaintiffs retains all the elements of overall decision-making regarding the IRIF, which itself was comprised of various elements. The fact that defendants' implementation of the IRIF was a subpart of the larger WAP does not of itself render it a "specific" employment practice sufficient to satisfy plaintiffs' initial burden. Nevertheless, a general decision-making process such as that identified by plaintiffs here may serve as the specified employment practice "if the plaintiff can show that the elements of the employer's decision-making process are not capable of separation for analysis." Smith, 196 F.3d at 368 (citing 42 U.S.C. § 2000e-2(k)(1)(B)(i)). The trial testimony established that exempt employees were selected for the IRIF pursuant to "Salaried Employee Reduction-in-Force Guidelines." Those guidelines established four criteria by which managers were to select exempt employees for the IRIF. Employees considered for the IRIF were given up to ten points in each for: company service, performance, flexibility and criticality. Points were totaled for each exempt employee considered for the IRIF and the exempt employees with the lowest point totals were selected for the IRIF. These guidelines were facially neutral, were followed by all managers in selecting exempt employees for the IRIF, and led directly to the selection of plaintiffs for the IRIF.

The criterion for service was objective on its face, but because it denied credit to employees for any period of employment beyond twenty years, it arguably had a disproportionate impact on employees with lengthy periods of employment with defendants, all of whom were over forty years of age.*fn16 The remaining three criteria required the application of objective standards in various categories.*fn17 The points assigned for the four criteria were then totaled to determine which employees would be selected for the IRIF.

Thus, various factors were considered for each criterion and the four criteria were considered as a group to determine selection for the IRIF. The evidence adduced by plaintiffs at trial, principally that of KAPL personnel regarding the guidelines and plaintiffs' statistical expert witness, sufficed to establish that no particular factor and no particular criterion caused the disparate impact on older employees. Rather, the evidence established that, as asserted by plaintiffs, such impact resulted from the implementation of the guidelines and that the various factors and criteria, the elements of defendants' decision-making, reasonably were "not capable of separation for analysis." Smith, 196 F.3d at 368. Thus, in the circumstances of this case, plaintiffs' identification of the implementation of the guidelines for selecting exempt employees for the IRIF satisfied plaintiffs' initial burden of proof.

b. Sufficiency of Plaintiffs' Statistical Evidence

Defendants next contend that plaintiffs failed to satisfy their initial burden of demonstrating that any statistical disparity against plaintiffs was caused by age discrimination. Defs. Mem. of Law at 11-14. Plaintiffs respond that the statistical evidence offered through their expert witness sufficed to meet this burden. Pls. Mem. of Law at 13-19.

After a plaintiff specifies the employment practice responsible for the adverse impact on older employees, a plaintiff must then demonstrate, generally through statistical data, that the employment practice caused a significant disparity in outcome between older employees and younger employees. See Smith, 196 F.3d at 364-65 (citing Watson, 487 U.S. at 994-95). Where a plaintiff relies on a statistical disparity to meet this burden, that disparity "must be sufficiently substantial to raise an inference of causation." Id.; see also Watson, 487 U.S. at 994 (holding that statistical evidence at this stage must be "of a kind and degree sufficient to" infer discrimination); Gonzalez, 135 F. Supp.2d at 399.

Here, plaintiffs identified four possible populations through the testimony of their expert witness, Dr. Janice Fanning Madden. Included in the four groups were all exempt employees at KAPL and those 245 exempt employees who were actually considered for the IRIF. Madden Tr. (Docket No. 154) at 17-18. There was sufficient evidence from which the jury could reasonably find that either group was the correct population for purposes of comparison. As to the population of exempt employees, the implementation of the IRIF commenced with that population within which those employees with excess skills were identified. Moreover, in its own internal analysis of the statistical impact of the IRIF on older employees, KAPL itself chose the population of 2.063 exempt employees for purposes of analysis. See, e.g., Madden Tr. at 34; see also Fed.R.Evid. 801(d)(2) (admission by party-opponent). Thus, the record contained sufficient evidence from which the jury could conclude that the correct population for purposes of comparison was KAPL's entire population of exempt employees.

There was also evidence from which the jury could find that the correct population was comprised of the 245 exempt employees whose positions were identified during the excess skills analysis as subject to the IRIF. It was this more limited group who were placed on the matrices and whose numerical scores were compared according to the procedures prescribed in the WAP. Thus, it was this group of exempt employees who were actually and universally subject to all aspects of defendants' implementation of the guidelines for selecting exempt employees for the IRIF — the employment practice identified by plaintiffs in their prima facie case. Accordingly, the record also contained sufficient evidence from which the jury could conclude that the correct population for purposes of comparison was the exempt employees who were placed on the matrices, i.e., those actually considered for the IRIF. See Smith, 196 F.3d at 368 ("The [correct] population in a reduction-in-force situation consists of workers subject to termination."). The second requirement is that a plaintiff demonstrate a statistically sufficient comparison between the predicted result for older employees in the population selected and the actual result. Ottaviani, 875 F.2d at 371; see also Smith, 196 F.3d at 366 (referring to "expected result" and "obtained result" rather than "predicted result" and "actual result"); Hogan, 109 F. Supp.2d at 104. This comparison serves to determine whether there is a statistically significant disparity between the predicted and actual results. For this case a predicted result is determined by the percentage of older employees in the population of employees subject to the IRIF. The actual result constitutes the percentage of older employees actually selected for the IRIF in the population subject to the IRIF. A comparison of the predicted and actual results must be made to determine if a statistically significant disparity exists. Smith, 196 F.3d at 365-66; Ottaviani, 875 F.2d at 371.

"Statistical significance" measures "the probability that a disparity is simply due to chance rather than any other identifiable factor." Ottaviani, 875 F.2d at 371. One measure of statistical significance is standard deviation. See Smith, 196 F.3d at 365-66; Ottaviani, 875 F.2d at 371. Standard deviation is a "unit of measurement used to express the probability that an [actual] result is merely a random deviation from a predicted result." Ottaviani, 875 F.2d at 371. Generally, "`[t]he greater the number of standard deviations, the less likely it is that chance is the cause of any difference between the [predicted] and [actual] results.'" Id. (quoting Coates v. Johnson & Johnson, 756 F.2d 524, 536 (7th Cir. 1985)). If the actual result varies from the predicted result by two standard deviations,*fn18 "[courts generally consider this level of significance sufficient to warrant an inference of discrimination." Smith, 196 F.3d at 366; see also Ottaviani, 875 F.2d at 371-72.

Here, as to the population of 2.063 exempt employees, there were 1,203, or fifty-eight percent, who were older employees. The predicted result from this population for the thirty-one exempt employees whose employment was terminated in the IRIF was thus fifty-eight percent of thirty-one, or eighteen older employees. The actual result was that thirty of the thirty-one employees, or ninety-seven percent, whose employment was terminated in the IRIF were older employees. According to Dr. Madden, there was one chance in 348,000 that this actual result would occur. Madden Tr. at 20. This constitutes between four and five standard deviations.

As to the population of 245 exempt employees placed on the matrices and actually considered for the IRIF, there were 179, or seventy-three percent, who were older employees. The predicted result from this population for the thirty-one exempt employees whose employment was terminated in the IRIF was thus seventy-three percent of thirty-one, or twenty-three older employees. The actual result was thirty, or ninety-seven percent. According to Dr. Madden, there was one chance in 1,260 that this actual result would occur. Madden Tr. at 25-27. This constitutes between three and four standard deviations.*fn19

Thus, whether the jury found that the correct population for comparison was the 2,063 exempt employees subject to the IRIF or the 245 exempt employees who were placed on matrices and actually considered for the IRIF, the statistical disparity substantially exceeded two standard deviations, permitting the jury to draw the inference that the disparity was caused by age discrimination. There was, therefore, sufficient evidence from which the jury could find that plaintiffs had satisfied their initial burden as to either group. Based on this evidence alone, defendants' contention that plaintiffs failed to meet their initial burden of demonstrating that the statistical disparity was caused by age discrimination must be rejected.

However, this conclusion is further supported by testimony offered by Dr. Madden during her redirect examination. The statistical evidence described above assessed the evidence to determine the probability that the statistical disparity between the predicted and actual results deviated from the norm by chance or for some other reasons, such as age discrimination. According to Dr. Madden, she also performed multiple regression analyses — "a statistical test which identifies factors, called independent variables, that might influence the outcome of an observed phenomenon, called a dependent variable." Smith, 196 F.3d at 363 n. 3. By this method, a statistician seeks to identify legitimate factors, other than age discrimination here, which may have influenced or caused the statistical deviation from the norm. Id.

Dr. Madden testified that she performed multiple regression analyses to determine if the statistical disparity could be explained by the individual components of the employees' numerical ratings on the matrices — years of service, performance appraisals, flexibility and criticality. Dr. Madden concluded that there was no significant correlation between an employees' years of service and the likelihood that he or she would be selected for the IRIF. Madden Tr. at 88. As to the other three components, Dr. Madden found that there existed statistically significant age effects in that older employees were more likely than younger employees to have experienced a decline in their performance appraisals after KAPL began planning for the IRIF and generally in the ratings for flexibility and criticality. Id. at 88-89. This evidence further supported the jury's finding that plaintiffs' satisfied their burden of proof to establish a prima facie case. Accordingly, defendants' contention that there was insufficient evidence to establish a prima facie case must be rejected.

c. Evidence of Multiple Regression Analyses

Defendants contend that Dr. Madden's testimony regarding multiple regression analyses was erroneously admitted in evidence. Defs. Mem. of Law at 14-16. Dr. Madden made no mention of multiple regression analyses in her expert witness reports, her deposition before trial or during her direct examination at trial. On cross-examination at trial, however, Dr. Madden was asked by defendants' counsel at least three times about additional analyses she had conducted. Madden Tr. at 38-39, 56-58, 76-77. In none of his questions did defendants' counsel limit Dr. Madden to analyses conducted prior to her reports or her deposition, and Dr. Madden testified each time that she had in fact conducted such analyses following her deposition and prior to trial. Id. In the most detailed colloquy, Dr. Madden was questioned as follows:

Q. You did not do a regression analysis for criticality, did you?

A. Yes.

Q. And did you do one for flexibility?

A. Yes.

Q. And for performance?

A. Yes.

Q. And for company service?

A. Yes.

Madden Tr. at 58. On redirect examination, plaintiffs' counsel asked Dr. Madden the results of her multiple regression analyses. Id. at 83. Defendants' counsel objected that such analyses had not previously been disclosed to defendants. Id. The objection was overruled on the ground that the questions of defendants' counsel had "opened the door" and unless plaintiffs' counsel was permitted to ask Dr. Madden about these analyses, the jury could infer that her analyses were unfavorable to plaintiffs. Id. at 83-87. Dr. Madden then testified to the results of her multiple regression analyses. Id. at 87-89. A trial court is accorded "substantial deference" in making evidentiary rulings and those rulings are reviewed only for clear abuse of discretion. Reilly v. Natwest Mkts. Groups, Inc., 181 F.3d 253, 266 (2d Cir. 1999); see also Healey v. Chelsea Res., Ltd., 947 F.2d 611, 619-20 (2d Cir. 1991). "Further, even an erroneous evidentiary ruling will not lead to reversal unless affirmance would be `inconsistent with substantial justice.'" Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) (quoting Fed.R.Civ.P. 61). Here, the ruling on defendants' objection was proper. Defendants' questions to Dr. Madden did not limit her answers to analyses she performed prior to her reports or her deposition. Defendants elicited testimony from Dr. Madden that she had performed multiple regression analyses but left unanswered the results of those analyses. If plaintiffs had not been permitted to elicit those results, the jury could reasonably have inferred that Dr. Madden's analyses were adverse to plaintiffs. Thus, the testimony of Dr. Madden on redirect examination was properly admitted and was not an abuse of discretion. Cf. Caruolo v. A C & S, Inc., No. 93 CIV. 3752 (RWS), 1999 WL 147740, at *14 (S.D.N.Y. Mar. 18, 1999) (holding that cross-examination by defendants of plaintiffs' expert witness opened the door to the admission of additional testimony on redirect examination of tests conducted by another expert and reported in a treatise), aff'd in part and rev'd in part on other grounds, 226 F.3d 46 (2d Cir. 2000).

Moreover, while the testimony of Dr. Madden in this regard supported plaintiffs' claims, that testimony was limited, taking no more than two to three minutes (less than two pages of transcript) in a trial that lasted five weeks during the liability phase alone. Its secondary importance is also underscored by the limited time devoted to it by counsel during their summations. Accordingly, even if the admission of this evidence was erroneous, any such error was harmless. See Fed.R.Evid. 61. Defendants' contention here must, therefore, be rejected.

2. Defendants' Burden of Production

Plaintiffs having satisfied their burden of establishing a prima facie case, the burden then shifted to defendants to offer a business justification for the challenged employment practice. See Griggs, 401 U.S. at 432; Smith, 196 F.3d at 365. The jury here found that defendants failed to meet this burden. Special Verdict (Docket No. 86) at 11. Defendants contend that this finding was erroneous as a matter of law. Defs. Mem. of Law at 17-21. Plaintiffs disagree. Pls. Mem. of Law at 19-20.

An employer's burden at this stage is to demonstrate "a legitimate business justification" for the challenged employment practice. Wards Cove, 490 U.S. at 643. The employer's burden is one of production, not persuasion, as the burden of persuasion remains with the plaintiff throughout the case. See id.; Watson, 487 U.S. at 108; EEOC v. Joint Apprenticeship Comm., 186 F.3d 110, 120 (2d Cir. 1999). An employer meets this minimal burden by articulating a business necessity or reason for the employment practice. See Watson, 487 U.S. at 108.

The jury found that defendants had not met this burden. Defendants first argue that the jury was asked the "wrong question." Defs. Mem. of Law at 17. The verdict form asked the jury whether any defendant "has articulated a business justification for selecting the plaintiffs for termination of their employment in the reduction-in-force?" Special Verdict at 11. Defendants failed to object to this question prior to its submission to the jury. Charge Conference Tr. (Docket No. 163) at 44-48. Thus, the question must rise to the level of plain error to be cognizable. See Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 96 (2d Cir. 1998) (applying plain error review where party failed to object to proposed special verdict form). Defendants do not claim plain error ...


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