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Levine v. Reader's Digest Association

June 10, 2008


The opinion of the court was delivered by: Mark D. Fox, United States Magistrate Judge


Plaintiff Dov Levine ("Levine") seeks relief from a jury verdict returned in favor of Defendant The Reader's Digest Association, Inc. ("RDA") after a jury trial on his action for age discrimination over which I presided pursuant to the consent of both parties under 28 U.S.C. § 636(c). Levine has moved for a new trial pursuant to Fed. R. Civ. P. 59. RDA opposes his motion and additionally seeks dismissal of the action as time-barred. For the reasons that follow, Levine's motion for a new trial is denied, and RDA's motion to dismiss is granted.


The facts of the case are set forth in prior decisions in this litigation. See Doc. #'s 23, 59. Having been terminated from his employment with RDA's Swiss subsidiary, Das Beste de Reader's Digest ("Das Beste"), after 31 years, Levine, a U.S. citizen, commenced this action against RDA, claiming a violation of the Age Discrimination in Employment Act ("ADEA"). Following a six-day trial, the jury rendered a verdict in favor of RDA, finding that Levine had failed to prove that RDA and Das Beste constituted a single employer within the meaning of the ADEA such that RDA could be held liable for the acts of Das Beste. Consequently, the jury did not reach the question of whether RDA had discriminated against Levine on the basis of his age. A judgment was entered on the verdict (Doc. # 91), and soon thereafter, Levine filed the instant motion (Doc. # 98).


I. Levine's Rule 59 Motion for a New Trial

A. Legal Standard

For a district court to order a new trial under Fed. R. Civ. P. 59(a), it must find that "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice, i.e., it must view the jury's verdict as against the weight of the evidence." Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003) (internal quotation marks and citation omitted). Moreover, Fed. R. Civ. P. 61 states, "Unless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."

In the case of allegedly erroneous evidentiary rulings, such a ruling "that does not affect a party's 'substantial right' is . . . harmless." Tesser v. Bd. of Educ. of City Sch. Dist. of City of New York, 370 F.3d 314, 319 (2d Cir. 2004) (citations omitted). "Whether an evidentiary error implicates a substantial right depends on the likelihood that the error affected the outcome of the case." Id. (internal quotation marks and citation omitted). A court will not conclude that "a substantial right was affected unless it is likely that in some material respect the factfinder's judgment was 'swayed by the error.'" Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) (citation omitted).

B. Erroneous Jury Instruction

Levine argues that the Court gave an erroneous jury instruction concerning the issue of whether RDA and Das Beste constituted a "single employer." He contends that the Court erred by including in the instruction language cited with approval by the Second Circuit in Murray v. Miner, 74 F.3d 402, 405 (2d Cir. 1996), that "the critical question is what entity made the final decisions regarding employment matters related to the person claiming discrimination," Tr. 788,*fn1 because the Murray case did not involve a wholly-owned subsidiary, but rather, a successor entity. However, this same language, which comes from the Fifth Circuit case of Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983), was also cited with approval by the Second Circuit in a case which did involve a wholly-owned subsidiary, Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). Thus, the Court's instruction regarding the "single employer" test was proper, and there is no basis for granting a new trial on this ground.

C. Adverse Inference Instruction Based on Failure to Produce Certain E-mails

Levine argues that the Court erroneously denied his request for an adverse inference instruction based on RDA's failure to produce internal e-mails concerning the restructuring of Reader's Digest in Germany, Switzerland, and Austria in August 2003. Prior to trial, Levine's request for an adverse inference instruction was denied by then-Chief Magistrate Judge Lisa Margaret Smith, in a Report and Recommendation filed on December 21, 2007. Judge Smith noted that there was a year and a half gap between Levine's termination from Das Beste in October 2003 and the initiation of his federal lawsuit in the United States District Court for the District of Columbia in June 2005, and she found that "the time line of events described by the Plaintiff does not support his contention that all documents pertaining to the 2003 restructuring plan, specifically including emails, would or should have been retained up until the point he commenced suit in 2005. . . . [T]he Plaintiff has not established that the Defendant should have been aware of that fact that it was under an obligation to retain such documents in August of 2003." Report & Recommendation [Doc. # 67] at 10-11. However, Judge Smith recommended that RDA be required to provide Levine with its corporate document retention policy so that Levine could revisit the issue, "if appropriate, on a motion in limine or during trial." Id. at 11.

At a conference on February 21, 2008, the Court rendered a decision on the record which agreed with Judge Smith's analysis and noted that during the time period between Levine's termination and the initiation of his federal lawsuit, "there is no basis in the record upon which this Court could find that RDA was on notice that all e-mails and records concerning its 2003 business restructuring were going to be relevant to this litigation." 2/21/08 Transcript [Doc. # 94] 25-26. However, the Court found that RDA's document retention policy was significant to determining the adverse inference issue and directed RDA to produce its policy "governing the retention of e-mails that was in effect between 2003 and 2005 in order to permit reconsideration of this issue prior to trial." Id. 26.

Subsequently, the Court had an opportunity to review both RDA's document retention policy, as well as further submissions of the parties concerning RDA's failure to produce e-mails about the corporate restructuring. Before the start of trial, on March 10, 2008, the Court ruled that Levine was not entitled to an adverse inference instruction based on RDA's failure to produce the requested e-mails. The Court found that because RDA did not have an electronic document retention policy in place until March 16, 2004, and because RDA's counsel represented to the Court that prior to March 16, 2004, RDA did not have a policy regarding the retention of e-mails, non-e-mail electronic documents, or hard copy documents, there was no basis for finding that RDA should have retained the e-mails in question without notice of the potential for litigation related to Levine's termination. However, Levine provided no correspondence from the time period following his termination which would have put RDA on notice that the restructuring formed a basis of, or was in any way relevant to, his age discrimination claim. Consequently, the Court declined to give the requested jury instruction.

In challenging the Court's ruling, Levine in no way explains how this alleged error was anything more than "harmless" under Rule 61, or in any way caused the jury to reach a "seriously erroneous result," as required for granting a new trial under Rule 59(a). To the contrary, with respect to the single employer issue, the jury was nevertheless given an adverse inference instruction based on RDA's failure to provide Levine with contact information for former and current employees of RDA and Das Beste. Tr. 788-89. Therefore, there is no basis for finding that an additional adverse inference instruction on this issue would have altered the outcome.*fn2

D. Dismissal of Retaliation Claim and Exclusion of Evidence Related to that Claim

Levine challenges the Court's dismissal of his retaliation claim prior to trial and the Court's resulting decision to preclude testimony at trial regarding that claim. However, Levine presents no legal argument in support of his contentions. Rather, he asserts that the Court's preclusion of testimony regarding what transpired with respect to his severance pay was "erroneous and prejudicial, particularly since the Court permitted the Defendant's exhibits and testimony relating to the Swiss severance offer. Defendant's Exhibits 9, 10." Pl.'s Mot. for a New Trial [Doc. # 98-2] at 4. Levine further asserts that "[t]his line of testimony and exhibits led the jury to conclude that Plaintiff had been paid the proposed severance amount with no ...

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