GIEDGOWD v. CAFARO GROUP, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS GIEDGOWD : CIVIL ACTION

:

v. : NO. 20-6184

:

CAFARO GROUP, LLC, et al. :

MEMORANDUM

KEARNEY, J. October 26, 2021

Retirement plan advisory and consulting firm Cafaro Group, LLC fired sixty-six-year-old

retirement plan consultant Thomas Giedgowd five months after a change in ownership where

younger supervisors quietly disliked his sales and management style. Mr. Giedgowd sued his

former employer for age discrimination under Pennsylvania Law. The jury returned a verdict in

favor of Mr. Giedgowd finding his age a determinative factor in Cafaro’s decision to terminate

him. The jury awarded Mr. Giedgowd: (1) $180,000 in compensatory damages; (2) $114,000 in

lost back pay; and (3) $157,500 in front pay. Cafaro now moves for judgment as a matter of law,

for a new trial, and if we deny its motion for a new trial, we do so on the condition Mr.

Giedgowd accepts remittitur. Mr. Giedgowd moves to mold the judgment to include prejudgment

interest on the jury’s award of back pay.

The jury heard all the proffered evidence and decided to believe Mr. Giedgowd and

disbelieve his former employer’s inconsistent testimony as to why and how it fired him. A jury

could readily find evidence Cafaro fired him without earlier notice after finding his age a

determinative factor and set damages based on the evidence. The case presented a clash in

cultures between a younger and new management team and Mr. Giedgowd’s successful but now

unfavored style. The jury decided who to believe. We deny Cafaro’s motion. We grant Mr.

Giedgowd’s unopposed motion to mold the judgment to include prejudgment interest.

I. Evidence adduced at trial.

Thomas Giedgowd attended West Chester University and graduated with a bachelor’s

degree in administration with a concentration in accounting.1 Mr. Giedgowd obtained his

master’s degree in taxation from Villanova University; he is a certified public accountant.2 Mr.

Giedgowd also obtained his Series 65 license in 1999 allowing him to provide investment

advice.3 Mr. Giedgowd’s Series 65 license expired by trial, although Cafaro did not adduce

evidence on the date it expired.4

Mr. Giedgowd worked in the accounting field for approximately twenty years.5 Mr.

Giedgowd eventually left the accounting field, and Armstrong, Doyle and Carroll – predecessor

of Carroll Consultants – hired him in 1994.6 Carroll Consultants, a retirement plan advisory and

consulting firm, employed Mr. Giedgowd as a retirement plan consultant and he eventually rose

to become its chief investment officer and chief compliance officer.7 Mr. Giedgowd reported to

the firm’s owner Marcie Carroll.8 Ms. Carroll is a licensed advisor, but she concentrated her time

on running the firm, not advising.9 Carroll Consultants employed Mark Ries, also a licensed

retirement plan consultant.10 Carroll Consultants hired Mr. Ries in 2016, and Mr. Ries reported

to Mr. Giedgowd, who then had over fifteen years of advising experience and trained him about

advising retirement plans.11

Mr. Giedgowd maintained the role of primary advisor at Carroll Consultants due to

having the most years of experience, and he, along with Ms. Carroll, grew Carroll Consultants’s

advising practice to approximately 105 clients at the time Ms. Carroll sold the firm in October

2018.12 Mr. Giedgowd estimated he spent about fifty percent of his time advising his retirement

plan clients.13 Carroll Consulting paid performance-based bonuses to Mr. Giedgowd every

year.14 He also testified his degree and certification in tax assisted his role as retirement plan

consultant because he could advise on the tax consequences to his clients.15 No employer ever

terminated, laid off, suspended, written up, or disciplined Mr. Giedgowd.16 Ms. Carroll always

provided him positive feedback; no client ever offered negative feedback.17

Co-employee Mark Ries did not enjoy the same level of success with Carroll Consulting.

Ms. Carroll removed Mr. Ries from an account after he sent an inappropriate email to a client

who became upset, and Mr. Giedgowd had to smooth the relationship over to retain the client.18

Mr. Ries also received a “one and a half, two-week” suspension due to his conduct.19

Carroll Consultants also employed Buzz Hartsig, an administrative manager, and Michele

Conner, an account manager, who provided administrative support to Mr. Giedgowd and Mr.

Ries in addition to performing other client-facing duties.20 Carroll Consultants hired Ms. Conner

“around 2012.”21 She did not have her advisory license.22 Ms. Conner’s primary responsibility

included administrative tasks and providing support to Mr. Giedgowd and Mr. Ries, such as

“sending out emails, following up on open items from the advisory meetings . . . help with

PowerPoint presentations, things of that nature.”23 She did not advise clients because she did not

have an advisory license.24

Mr. Giedgowd maintained a private tax practice and coached high school basketball,

which sometimes required him to leave early during work hours.25 Carroll Consulting did not

criticize Mr. Giedgowd for his outside interests given his work effort and success.26

Cafaro acquires Carroll Consultants.

Cafaro Group, LLC acquired Carroll Consultants in October 2018.27 Sixty-six-year-old

Mr. Giedgowd then began working with the younger management team from Cafaro.28 He was

Cafaro’s oldest employee.29 Cafaro hired all of Carroll Consultants’ employees except two –

Yvonne Macario and Cathie Cissone – both of whom were over the age of fifty-five.30 While

Wayne Greenleaf – an owner of Cafaro – testified Cafaro did not hire these employees because

they were not needed in Cafaro’s structure, Jamie Greenleaf – also an owner of Cafaro– testified

those older employees chose not to join Cafaro.31 Mr. Giedgowd’s base pay stayed the same, but

his pay functionally decreased because Cafaro no longer offered bonuses as Carroll Consulting

did.32 Mr. Giedgowd asked Brian Clark, Director of Operations, to adjust his salary to a higher

amount after receiving his employment agreement for Cafaro, but Mr. Clark refused because Mr.

Giedgowd asked for too much.33

Cafaro hired Mr. Ries and Ms. Conner as retirement plan investment advisors.34 Cafaro

also had a retirement plan advisor pre-acquisition – Amy Kinsman – who continued to be

employed.35 The retirement plan advisors all reported to Mr. Clark.36

Following the acquisition, Cafaro tasked Mr. Clark with evaluating the “advisory side” of

the business, including potential staffing inefficiencies with the retirement plan advisors.37 Mr.

Clark described this as a three-step process: (1) learning the Carroll Consulting business; (2)

“normalizing the jobs;” and (3) evaluating staffing.38

As part of “normalizing the jobs,” Mr. Clark created the Cafaro job description for the

retirement plan advisor role.39 The job description provided the retirement plan advisor “[m]ay

coordinate the work of administrative support staff and will provide support to [Cafaro Group]

partner advisors on larger relationships” and the position required “an S65 or S66” license.40 Ms.

Conner did not have a S65 or S66 license at the time Cafaro hired her as a retirement plan

advisor. She did not obtain her license before leaving Cafaro despite Cafaro providing “extensive

training.”41 While the job description purportedly allowed the retirement plan advisors to use

administrative support, Cafaro did not have administrative support staff and Ms. Conner no

longer provided such support in her new role.42

Mr. Clark also looked at retirement plan advisor staffing.43 Mr. Clark and Cafaro

determined it had too many retirement plan advisors following the acquisition and decided to

eliminate one of the positions.44 Cafaro adduced no documents at trial describing this strategy; it

relied on testimony based on recall from months earlier.45 Mr. Clark, along with Buzz Hartsig,

Ms. Greenleaf, and Mr. Greenleaf – all decisionmakers – undertook the evaluation process to

determine which position would be eliminated, but Mr. Clark made the ultimate decision to

terminate Mr. Giedgowd.46

Mr. Clark testified he considered all of the retirement plan advisors for elimination, but

“[they] concluded pretty quickly that it wouldn’t make sense [to terminate Amy Kinsman

because] [s]he was servicing a large book of clients[,] [s]he was already in the job as we are

defining it, and she was servicing our largest revenue clients by far.”47 Mr. Clark solicited

feedback on Mr. Giedgowd, Mr. Ries, and Ms. Conner to decide which one to eliminate.48

Mr. Clark received feedback on Ms. Conner. He testified Ms. Conner “was a workhorse,”

“managed essentially relationships with 100 different clients . . . same as Amy,” “was very

knowledgeable” about the clients and their plans, and had a reputation “of someone who works

very hard and would like to do more.”49 Mr. Clark testified her “intimate knowledge of [the]

clients was irreplaceable” and losing her would be “disruptive.”50 Mr. Clark acknowledged Ms.

Conner did not have a Series 65 or 66 license, and explained she could fulfill this role despite

lacking the requirement Mr. Clark himself put into the job description because advising clients is

only a small part of the role and a licensed advisor, such as Ms. Greenleaf, would provide any

advice needed.51 Mr. Hartsig swore this role required a license for fifty percent of the work.52

Ms. Greenleaf described Ms. Conner as “a better performer” in the role of retirement plan

advisor even though she did not have the required license.53

Mr. Clark also received feedback on Mr. Ries. Mr. Clark swore Mr. Ries had “a strong

investment background,” “very good presentation skills . . .[and] listens well . . . responds well,”

“was doing a really good job on managing the relationships he had,” and he “managed [Cafaro’s]

book of individual[s]” clients.54 He swore Mr. Ries “was the best suited to continue to service

[the individual] clients” because of his background in financial planning and because individual

advising required “one-on-one relationships,” which Cafaro did not want to displace by

terminating Mr. Ries.55 Mr. Ries also received negative feedback, including “his directness could

sometimes be aloof or abrasive.”56 Carroll Consulting earlier suspended Mr. Ries for about two

weeks and removed him from an account for him sending an inappropriate email to a client.57

Mr. Clark also received feedback on Mr. Giedgowd. Mr. Clark swore he decided to

terminate Mr. Giedgowd for “a bunch of reasons.”58 Mr. Clark testified Mr. Giedgowd had less

responsibilities at Cafaro than at Carroll Consulting because he no longer needed to “manage the

investment analysis . . . [or] manag[e] compliance for the firm.”59 Ms. Carroll and Mr. Hartsig

reported these tasks comprised forty to fifty percent of Mr. Giedgowd’s job at Carroll

Consulting.60 Mr. Clark also testified Mr. Giedgowd had “different issues” with “client skills.”61

Mr. Giedgowd did not present well, at times went to meetings unprepared, and “the clients are

lost” during his presentations.62 Mr. Clark received negative feedback from Ms. Greenleaf about

two meetings she attended with Mr. Giedgowd while employed at Cafaro.63 Mr. Clark also

received negative feedback from Mr. Hartsig about Mr. Giedgowd not responding to clients’

emails while at Carroll Consulting, leading Mr. Hartsig to monitor his emails which Mr. Clark

considered “a big piece” of his decision to terminate Mr. Giedgowd.64

Mr. Clark also received feedback from Mr. Hartsig about Ms. Conner complaining Mr.

Giedgowd continued to give her administrative work, despite her job description changing, and

Mr. Clark testified he observed this as well which “really bothered [him].”65 Despite these

complaints, Mr. Clark never approached Mr. Giedgowd to discuss this with him.66 Mr. Clark

also described Mr. Giedgowd as “the least coachable,” and found “[Mr. Giedgowd] had an

inability to read a room,” which he saw as “a DNA issue . . . an emotional intelligence kind of

thing.”67 No client ever asked for Mr. Giedgowd to be removed from their account and “the

majority of clients liked him.”68 Despite these factors weighing on Mr. Clark’s decision, Mr.

Clark testified – contrary to the Greenleafs’ testimony – “it was not [a performance-related

termination] . . . we didn’t terminate him for performance.”69

Ms. Greenleaf also testified she did not feel comfortable with Mr. Giedgowd’s tax

business, describing it as “a conflict of interest” and “concerning.”70 Cafaro did not document

Mr. Giedgowd’s performance issues, and no one ever addressed the perceived performance

issues with Mr. Giedgowd during his tenure at Cafaro.71 Cafaro had no documentation of this

overarching evaluation process taking place.72

Cafaro terminates Mr. Giedgowd.

Mr. Hartsig and Mr. Clark met with Mr. Giedgowd on Friday, March 22, 2019 to

terminate him.73 Mr. Giedgowd worked for Cafaro as a retirement plan advisor for five months

before his termination.74

Despite Mr. Clark being the ultimate decision maker, Mr. Hartsig “took the lead” in the

conversation because he knew Mr. Giedgowd for a longer amount of time.75 Mr. Giedgowd

testified Mr. Hartsig did not provide a reason for his termination.76 Mr. Clark testified Mr.

Hartsig told Mr. Giedgowd he was terminated due to reorganization.77 Mr. Hartsig testified he

did not provide an explanation to Mr. Giedgowd for his termination and neither did Mr. Clark.78

During the meeting, Mr. Hartsig brought up retirement.79 Mr. Hartsig terminated Mr.

Giedgowd, and despite bringing up retirement, testified “there was no option to retire . . . [but]

there was an option if he wanted to state that he was retiring but he was being terminated.”80 Mr.

Hartsig explained he thought it beneficial for Mr. Giedgowd to say he retired, rather than Cafaro

terminated him, because “he had a tax practice . . . [and] maybe it’s easier [to tell his tax clients]

. . . I decided to retire from that part of my life . . . and get back into tax.”81 He thought it would

similarly benefit Cafaro for Mr. Giedgowd to announce he retired “to help transition clients,

over, you know, if he did want to call people, you know, go ahead. Not that I’m being terminated

basis but I’m leaving kind of on my own, you know, here’s the new person that’s going to run

your plan for you, goodbye.”82 Before this meeting, Mr. Giedgowd did not express an interest in

retiring.83 Mr. Hartsig did not give Mr. Giedgowd the option to resign or say he resigned.84

Cafaro offered conflicting testimony about the effective date of Mr. Giedgowd’s

termination. Mr. Clark testified Mr. Hartsig terminated Mr. Giedgowd effective immediately on

Monday, March 25, and Mr. Hartsig testified he terminated Mr. Giedgowd “effective

immediately” on Friday, March 22.85 Either way, Mr. Giedgowd requested to think about

whether he would stay an additional two weeks to tell his clients he retired.86

Mr. Giedgowd went home to his wife “visibly shaken,” “embarrassed [because] I have to

tell my kids, friends of mine. I had relationships with clients for like, over 20 years, and – doing

good advisory work, and now I have to explain to them that I got, you know, let go. Don’t even

know why I got let go.”87 Mr. Giedgowd felt “[his] name is getting dragged in the mud” because

of the post-lawsuit criticisms in his performance, “but none of that was ever brought up to [him]

before [he] got terminated and it still sticks with [him] today.”88

He returned on Monday, March 25 to tell Cafaro he would not lie to his clients, but he

would stay two weeks if he could tell them Cafaro terminated him.89 Mr. Giedgowd spoke to Mr.

Hartsig on Monday to inform him of this decision.90 Mr. Hartsig called Mr. Clark, and Mr.

Hartsig and Mr. Clark agreed Mr. Giedgowd could not work the next two weeks.91 Mr. Hartsig

returned and told Mr. Giedgowd “no way . . . get out of here . . . or you’re out of here.”92

Cafaro makes Eileen Mahoney a retirement plan advisor.

Eileen Mahoney worked for Cafaro before it acquired Carroll Consultants as the director

of client services.93 Ms. Mahoney had a Series 65 license.94 Ms. Conner later left Cafaro in

2020.95 OneDigital then acquired Cafaro in January 2020.96 Eileen Mahoney became a

retirement plan advisor after January 2020.97

Mr. Giedgowd’s post-Cafaro work life.

Mr. Giedgowd found a new job two to three months after his termination.98 He works for

a company called Voluntary Benefits at Work, which provides him commission-based pay for

selling long-term care insurance.99 He does not receive a salary.100 Mr. Giedgowd works twenty-

five hours per week at this job.101 He is an independent contractor.102 He still coaches basketball

and maintains his individual tax practice.103 Mr. Giedgowd testified COVID “took a big hit on

employers offering these voluntary benefits,” but he anticipates the amount he earns from

Voluntary Benefits at Work will increase.104

Mr. Giedgowd testified he made $89,000 at Cafaro before termination, and from May

2019 to the date of trial, he made $14,500 from Voluntary Benefits at Work.105 In the same

timeframe, Mr. Giedgowd estimated he would have made $207,000 at Cafaro, for a loss of

$190,000 in back pay.106 Mr. Giedgowd estimated his loss of future pay from 2021 to 2022

would be approximately $67,000.107 On cross-examination, Mr. Giedgowd clarified his earnings

from Voluntary Benefits at Work. He testified he made nothing in 2019 because he made no

sales.108 In 2020, he made “around . . . $10,000” and in 2021, he made around $2,500.109 He

collected unemployment benefits in 2019 and 2020.110 He has not looked for another job since

Voluntary Benefits at Work hired him.111

Mr. Giedgowd also explained he “live[s] five minutes from [his old] office . . . and, you

know, when [he] go[es] to Wegmans, which is right by [his] old office . . . [he] see[s] this, and it

bothers [him] . . . two years after.”112 Mr. Giedgowd also “worr[ies] about providing for

[himself] financially.”113 Mr. Giedgowd is not aware of clients who know Cafaro terminated

him.114

II. Analysis

Cafaro now moves for judgment as a matter of law, for a new trial, and if we deny its

motion for a new trial, we do so on the condition Mr. Giedgowd accepts remittitur. We deny its

motion.

A. We deny Cafaro’s renewed motion for judgment as a matter of law.

A motion for judgment as a matter of law under Rule 50(b) “should be granted only if,

viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of

every fair and reasonable inference, there is insufficient evidence from which a jury reasonably

could find liability.”115 We may grant the motion only if “the record is critically deficient of the

minimum quantum of evidence to sustain the verdict.”116 While judgment as a matter of law

should be granted sparingly, a “scintilla of evidence” is insufficient to sustain a jury’s verdict.117

“The question is not whether there is literally no evidence supporting the unsuccessful party, but

whether there is evidence upon which a reasonable jury could properly have found its

verdict.”118 In considering a motion under Rule 50(b), we do not “weig[h] the evidence,

determin[e] the credibility of witnesses, or substitut[e] our own version of the facts for that of the

jury.”119

Cafaro makes several arguments for judgment as a matter of law but they can be

addressed as Mr. Giedgowd failing to adduce sufficient evidence for a jury to find (1) age as the

but-for cause of his termination; (2) Mr. Giedgowd is entitled to front pay and back pay; and (3)

Mr. Giedgowd is entitled to compensatory damages. We disagree.

1. A reasonable jury could find age the but-for cause of Mr. Giedgowd’s

termination.

a. A reasonable jury could find age the but-for cause of Mr.

Giedgowd’s termination despite his testimony about requesting

a raise.

Cafaro first argues a reasonable jury could not find age the but-for causation because Mr.

Giedgowd offered an alternative reason for his firing—his request for a raise. Cafaro relies on

two district court cases from the Middle District of Pennsylvania to support its argument.120 In

Heverling, Judge Conner dismissed the plaintiffs’ complaint alleging, amongst other things,

violation of Title VII for the use of sexual and homophobic slurs, because the plaintiffs alleged

“two primary reasons for their terminations: (1) participation in the Title VII investigation and

(2) reporting noncompliance with the FDA consent decree.”121 Judge Conner found “Plaintiffs’

allegata are thus logically incompatible with but-for causation” because they “themselves

alleged an alternative basis for the adverse employment action . . . [so they] cannot show that

their protected activity was the but-for causation of their terminations.” In Burton, Judge Rambo

granted summary judgment in favor of the employer on the employee’s claims for discrimination

and retaliation due to his race and reporting sexual comments in violation of Title VII and the

PHRA.122 The plaintiff based both claims partly on his supervisor issuing him a “Supervisor’s

Notation,” a written form of discipline.123 In finding in favor of the employer, Judge Rambo

found “the mere fact that [the plaintiff] is asserting both discrimination and retaliation claims as

to the Supervisor’s Notation is fatal to his retaliation claim as the prima facie case of retaliation

requires the plaintiff to show that the desire to retaliate was the sole basis, or the but-for cause, of

the challenged employment action.”124 He continued, “[the plaintiff] cannot properly argue that

the Supervisor’s Notation was issued as both a form of discrimination and retaliation for [him]

making complaints to his supervisors.”125

Mr. Giedgowd proceeded to trial on one claim: Cafaro violated Pennsylvania Law firing

him because of his age. Both cases are procedurally and substantively distinguishable because

neither address age-based discrimination and neither dealt with trial testimony, as we have here.

Second, the testimony Cafaro attempts to rely on does not establish Mr. Giedgowd thought

Cafaro fired him because he requested a raise. Cafaro relies upon the following testimony to

support its argument:

Q: And because of that, you thought you were targeted for

termination because you had asked for more money. That’s what

your testimony was. Correct?

A: If that’s what it says, then yes.126

During this exchange, Cafaro’s attorney probed Mr. Giedgowd about his earlier

deposition testimony. While Cafaro attempts to construe this testimony as Mr. Giedgowd stating

he thought Cafaro targeted him because he asked for a raise, the testimony does not support this

theory. Cafaro’s attorney said (1) “you thought you were targeted for termination because you

had asked for more money,” then states (2) “[t]hat’s what your testimony was,” then asks him (3)

“correct?” Mr. Giedgowd’s response “if that’s what it says, then yes” at best confirmed he

previously testified to counsel’s first statement, and at worst, only agrees he said this statement

“if that’s what it says.” But counsel never showed Mr. Giedgowd the statement, sought for Mr.

Giedgowd to definitively confirm his deposition testimony, or attempted to introduce his

deposition testimony to make the point it now asks us to accept. This ambiguous testimony is

insufficient to establish Mr. Giedgowd testified to another reason for his termination. The jury

heard all the evidence and made the credibility decisions.

Even assuming Mr. Giedgowd testified he thought Cafaro targeted him because he asked

for a raise, our Court of Appeals has explicitly held “[w]e do not require that age discrimination

be the sole cause for an adverse employment decision to prevail on an age discrimination

claim.”127 Rather, age must be “a motivating or determinative cause of termination.”128 We deny

Cafaro’s first argument regarding Mr. Giedgowd’s testimony on alternative motivation for

termination.

b. We will not disturb the jury’s verdict finding age a

determinative factor in Mr. Giedgowd’s termination because it

is supported by the evidence in the record.

Cafaro next argues no reasonable jury could have found for Mr. Giedgowd because – in

isolation – (1) offering retirement as an option cannot establish but-for causation; (2) failing to

inform an employee of poor performance cannot establish but-for causation; and (3) being the

oldest employee cannot form but-for causation.129 Cafaro seemingly thinks the jury merely heard

evidence about these three topics and nothing else.

We summarize the relevant evidence the jury heard. The jury heard conflicting testimony

about the reason for Mr. Giedgowd’s termination from decision makers Mr. Clark, Ms.

Greenleaf, and Mr. Greenleaf.130 They heard testimony Cafaro kept an unlicensed individual in

the role of retirement plan advisor despite themselves writing a job description requiring the

individual fulfilling the role be licensed.131 They heard conflicting evidence of the justification

for doing so.132 They also heard Cafaro kept a retirement plan advisor who Carroll Consulting

suspended for about two weeks and removed him from an account due to an inappropriate

email.133 They heard testimony about the positive work attributes of those employees as well.134

They also heard the positive and negative work attributes about Mr. Giedgowd, including from

Cafaro employees and his previous employer, Ms. Carroll, and testimony about Mr. Giedgowd’s

performance.135 They heard evidence of Mr. Giedgowd’s degrees, experience, and

qualifications.136

They heard of the “evaluation” Mr. Clark, Mr. Hartsig, Ms. Greenleaf, and Mr. Greenleaf

undertook due to purported overstaffing.137 They heard Cafaro had no documents, including no

emails, to show this evaluation took place or if management thought the office was

overstaffed.138 They heard Cafaro could produce no document describing employees’, including

Mr. Giedgowd’s, performance.139 They heard evidence no one ever addressed perceived

performance issues with Mr. Giedgowd.140

They also heard evidence of Mr. Giedgowd’s termination meeting. They heard

conflicting evidence about the effective date of Mr. Giedgowd’s termination.141 They heard

conflicting evidence about whether Mr. Giedgowd received a reason for his firing.142 They heard

Mr. Hartsig testify he offered Mr. Giedgowd the option to retire, but not the option to resign.143

They heard evidence after Mr. Giedgowd refused to lie to clients, Cafaro refused to let him work

an additional two weeks.144 They heard Cafaro fired its oldest employee – Mr. Giedgowd.145

They heard much more over the course of the four-day trial. They weighed the witnesses’

credibility. And then they found Mr. Giedgowd’s age a determinative factor in Cafaro’s firing.

Cafaro’s focus on three discreet pieces of evidence to argue no reasonable jury could have found

but-for causation does not carry the day. Based on all the evidence presented, a reasonable jury

could have found – and did find – age a determinative factor in Mr. Giedgowd’s firing. We will

not disturb the jury’s verdict unless “the record is critically deficient of the minimum quantum of

evidence to sustain the verdict.”146 This is not the case here.

c. We did not err in denying Cafaro’s Rule 50(a) motion at trial.

In arguing the jury’s verdict cannot stand because the jury could not have relied on

Cafaro’s failure to inform Mr. Giedgowd of his performance issues, Cafaro also argues we erred

in denying its Rule 50(a) motion at trial because our ruling on the record disregarded binding

precedent from our Court of Appeals.147 Cafaro asserts we cited a single reason for denying

Cafaro’s Rule 50(a) motion – issues of fact existed because Cafaro failed to inform Mr.

Giedgowd of his performance issues.148 Cafaro again moved for judgment as a matter of law

under Rule 50(a) at the close of its case.149 Cafaro argued our Court of Appeals in Robinson v.

Matthew Intern Corp. held failing to provide performance reviews or provide the employee with

information regarding performance issues is not evidence of pretext.150 In response to Cafaro’s

second Rule 50(a) motion, we clarified our earlier holding:

I think what the issue is – and I appreciate counsel raising the

concern to the extent there was an impression that I was saying that

the failure to give a performance review alone, I agree with you, in

and of itself is not pretext. However, it goes to evidence of a

variety of things.

And there is confusion in the record – I won’t say confusion –

there’s different statements in the record the jury has to discern.

And given the – given the standard of Rule 50, I could see it’s

possible a jury could reach a verdict that performance was not in

fact part of the equation, that it was done for restructuring reasons

or otherwise, including age.

And the evidence goes both ways on that. And I don’t believe the

evidence is clear enough to take the matter away from the jury,

because there is sufficient evidence for which a jury could find in

favor of the defendant – excuse me, in favor of the plaintiff—as to

whether age was a determinate factor, given the standard by the

Third Circuit.151

We previously detailed the evidence the jury heard. Mr. Giedgowd presented sufficient

evidence to create a fact question to be determined by the jury at the close of its case when

Cafaro moved the first time for judgment as a matter of law. The same is true for its second

motion for judgment as a matter of law, and the present motion.

We deny Cafaro’s Rule 50(b) motion for judgment as a matter of law.

2. A reasonable jury could find Mr. Giedgowd entitled to front pay and

back pay.

Cafaro argues a reasonable jury could not find Mr. Giedgowd entitled to front pay and

back pay because Mr. Giedgowd willfully removed himself from the labor market by obtaining a

commissioned-based job as an independent contractor working twenty-five hours per week and

not looking for any other employment.152 Cafaro also argues Mr. Giedgowd may not recover

front pay because he let his license expire and thus cannot obtain substantially similar

employment now.153

As Judge Beetlestone recently observed, “[w]hether a plaintiff has met the duty to

mitigate damages is a question of fact, and therefore properly reserved for the jury where there is

a genuine dispute of material over plaintiff’s mitigation efforts.”154 To prove failure to mitigate,

Cafaro must show “(1) substantially equivalent work was available, and (2) [Mr. Giedgowd] did

not exercise reasonable diligence to obtain the employment.”155 Following our Court of Appeals’

decision in Caufield v. Center Area Sch. Dist., our colleagues have held an employer may also

establish failure to mitigate by establishing the plaintiff “has withdrawn entirely from the

employment market.”156 If relying on the theory the plaintiff withdrew from the employment

market, the employer need not prove substantially equivalent work available.157 As Judge

Beetlestone cautioned: “Importantly, showing a plaintiff has withdrawn from the labor market

ought not be conflated with defendant’s burden to prove both that there are substantially

equivalent positions available, and that the plaintiff failed to exercise reasonable diligence in

attempting to secure such a position. The required showing is that plaintiff has withdrawn

entirely from the employment market, which is more onerous than establishing a plaintiff’s job

search was not reasonably diligent.”158 Judge Beetlestone continued, “[a] defendant is only

exempted from demonstrating the availability of substantially equivalent work by meeting this

heightened burden.”159 We are persuaded by Judge Beetlestone’s thoughtful analysis.

Cafaro premises its argument here on Mr. Giedgowd removing himself from the labor

market. Cafaro argues he removed himself from the labor market because he failed to look for

any other jobs after he accepted a position as an independent contractor working twenty-five

hours per week with Voluntary Benefits at Work. It relies on Judge Vanaskie’s opinion in

Holocheck v. Luzerne Cty. Head Start, Inc. to support its argument. In Holocheck, a former

teacher’s aide sued her former employer for, among other things, violating the ADEA and

PHRA.160 Her employer argued she failed to mitigate her damages because she removed herself

from the labor market.161 Judge Vanaskie found the plaintiff willfully removed herself from the

labor market.162 He reasoned the plaintiff “made no effort to obtain substitute employment-either

within or outside the field of teaching-since she was terminated . . . [s]he has not read through

the classified ads to locate a job, nor has she made any inquiries in her field . . . [she]. . .

remained idle.”163 But she did have “sporadic[]” employment at a restaurant “over a two to three

month period,” but even with this position, the plaintiff “did nothing proactive to obtain the

position . . . [and] [i]t is significant, moreover, that before, during, and after her brief stint at [the

restaurant], [she] made no attempt to secure substitute employment.”164 While Cafaro tries to

analogize Holocheck to our facts, we address material differences and we are more persuaded by

Judge Kelly’s opinion in Briggs v. Temple University.

In Briggs, Ruth Briggs sued Temple University for, among other things, violating the

ADEA and PHRA.165 Ms. Briggs worked as the executive assistant to various deans.166 The

parties tried the case before a jury, and the jury found in favor of Ms. Briggs on her age

discrimination claim.167 Temple moved for judgment as a matter of law arguing Ms. Briggs

failed to mitigate her damages “by not seeking employment after accepting a job as a home

healthcare aide in August 2016, thus ending any additional award for back pay and outright

precluding an award for front pay.”168 Temple essentially argued Ms. Briggs “voluntarily

withdrew from [the] employment market.”169

Ms. Briggs searched for employment for twenty-eight months following her termination

from Temple.170 She accepted a job in August 2016 as a home healthcare aide.171 Ms. Briggs

argued the law imposed “no duty to continue searching for employment after accepting the home

healthcare aid position in August 2016” relying on our Court of Appeals’s Tubari reasoning of

“a discriminatee who accepts suitable interim employment, even at a lower wage, has no

continuing duty to search for a more lucrative job.”172 Temple argued Ms. Briggs “still had a

duty to search for a substantially equivalent position because she ‘did not secure her home

healthcare job as ‘interim employment,’’ but rather ‘she took the job as permanent

employment.’”173 Temple conceded “had Ms. Briggs taken the home healthcare aid job as

temporary or ‘interim’ employment while continuing to search for suitable, more permanent

employment, then the argument that she was not required to search for more lucrative interim

work would be more appropriate.”174

Judge Kelly found “the term ‘interim’ is more generally used to describe employment

between the date of an employee’s unlawful termination and the date of reinstatement or

judgment in the employee’s favor.”175 He continued, “[i]t is widely understood that, in order to

adequately mitigate damages, an employee may need to lower her sights following a reasonable

period of unsuccessfully searching for equivalent employment” and “[t]ypically, courts must

balance the ‘tension between a discriminatee’s duty to seek substantially equivalent interim

employment and the subsequent duty to lower his or her sights after a ‘reasonable’ period of

time.’”176

Judge Kelly dismissed Temple’s argument finding its “proffered interpretation of the

caselaw would transport a plaintiff’s ‘duty to mitigate’ into a ‘duty to absolve.’”177 He concluded

Ms. Briggs “has not withdrawn [from the employment market] at all,” rather “she continually

mitigated her damages as a home healthcare aide.”178

While the facts here are different than those presented in Briggs, they are more like

Briggs than those reviewed by Judge Vanaskie in Holocheck. Mr. Giedgowd remained

unemployed for a period of “two to three months” after Cafaro fired him.179 He then obtained a

job as a commission-based, independent contractor for Voluntary Benefits at Work and works

twenty-five hours a week. He no longer works as a retirement plan advisor; rather, he sells long-

term care insurance to independent schools. Mr. Giedgowd made less money than he did at

Cafaro. Mr. Giedgowd explained COVID impacted his ability to earn money in this job.180 After

obtaining this employment, Mr. Giedgowd did not look for other employment. He still coaches

basketball and maintains his independent tax practice.

Whether Mr. Giedgowd mitigated his damages is a jury question. The jury heard the

evidence, and they awarded Mr. Giedgowd front pay and back pay. We may only grant a Rule

50(b) motion “if the record is critically deficient of the minimum quantum of evidence to sustain

the verdict.” The jury had more than a “scintilla of evidence” to sustain its award. Unlike the

plaintiff in Holocheck, Mr. Giedgowd sought employment following his termination from

Cafaro. He did not merely work an intermittent job at a restaurant to “help out.” But he did take a

job in a new field, like the former dean’s assistant in Briggs. He works twenty-five hours a week

as an independent contractor and is paid commission for sales.181 He explained why his sales

have been low since obtaining the employment as well as the upside potential of his role. The

jury determined Mr. Giedgowd adequately mitigated his damages. We will not disturb the jury’s

verdict based on our view of his mitigation efforts given the ample evidence.

Although not possibly realizing the irony of its argument, Cafaro argues Mr. Giedgowd is

not entitled to front pay because his license expired.182 Cafaro also argued during the trial Ms.

Conner – an unlicensed retirement plan advisor – could fulfill this role because Ms. Conner only

needed a license for a small portion of her job duties. Cafaro cites no case law supporting its

argument. We also did not find any upon review.

We will not disturb the jury’s verdict having considered and weighed all the evidence.

3. The jury reasonably awarded Mr. Giedgowd $180,000 in

compensatory damages.

Cafaro argues no reasonable jury could have concluded Mr. Giedgowd entitled to

$180,000 in compensatory damages, and we should remit the jury’s award to zero. Cafaro relies

on our Court of Appeals’s decision in Spence v. Board of Education and two district court

decisions in Rush v. Scott Specialty Gases and Valentin v. Crozier-Chester Medical Center.183

Cafaro argues Mr. Giedgowd’s testimony is insufficient to support this award. Mr. Giedgowd

relies on our decision in Middlebrooks v. Teva Pharm. USA, Inc. to argue Mr. Giedgowd

presented sufficient evidence to support an award of compensatory damages.184 We agree with

Mr. Giedgowd and decline to disturb the jury’s verdict.

Mr. Giedgowd is entitled to compensatory damages upon a showing of actual injury.185

“When the only evidence of emotional distress is the plaintiff’s own testimony about depression

and humiliation, ‘and there is no evidence of physical suffering, the need for professional care, or

the like, then there is no ‘reasonable probability, rather than a mere possibility, that damages due

to emotional distress were in fact incurred as a result of the ‘wrongful act.’”186 Medical evidence

or corroborating testimony is not required to support an award for mental anguish damages, and

“courts have held that intangible injuries such as sleeplessness, headaches, and feelings of

humiliation and embarrassment are sufficient to support an award of compensatory damages.”187

While our Court of Appeals has not ruled on whether a plaintiff’s testimony is sufficient to

support an award of emotional distress damages, district courts in our circuit have found a

plaintiff’s testimony sufficient to uphold compensatory damages awards.188

Mr. Giedgowd described his termination as “devastating.”189 He testified, following his

termination, he went home to his wife and “was visibly shaken,” “felt embarrassed [because] I

have to tell my kids, friends of mine. I had relationships with clients for like, over 20 years, and

– doing good advisory work, and now I have to explain to them that I got, you know, let go.

Don’t even know why I got let go.”190 He felt “[his] name is getting dragged in the mud”

because of the post-lawsuit criticisms in his performance, “but none of that was ever brought up

to [him] before [he] got terminated and it still sticks with [him] today.”191 Mr. Giedgowd also

explained he “live[s] five minutes from [his old] office . . . and, you know, when [he] go[es] to

Wegmans, which is right by [his] old office . . . [he] see[s] this, and it bothers [him] . . . two

years after.”192 Mr. Giedgowd also “worr[ies] about providing for [himself] financially.”193 He

testified he does “not sleep at night very good.”194

This testimony is sufficient for the jury’s award. The jury heard Mr. Giedgowd’s

testimony both on direct and on cross-examination. The jury weighed the evidence and found

Mr. Giedgowd credible. An award of $180,000 does not shock the judicial conscience nor is it

“clearly unsupported and/or excessive.”195

We deny Cafaro’s motion for judgment as a matter of law as to compensatory damages.

B. We deny Cafaro’s motion for a new trial.

Cafaro also moves for a new trial on two grounds: (1) our decision to exclude an email as

hearsay and irrelevant constitutes substantial error; and (2) the verdict is against the weight of the

evidence because Mr. Giedgowd did not establish but-for causation.196

We “may, on motion, grant a new trial on all or some of the issues – and to any party . . .

after a jury trial, for any reason for which a new trial has heretofore been granted in an action in

federal court.”197 Rule 59 does not provide specific grounds to grant a new trial, leaving the

decision to our discretion.198 Motions for new trial may be granted where there is “substantial

error in the admission or exclusion of evidence; error in the court’s instructions to the jury;

where the jury’s verdict [is] inadequate or excessive; or where the verdict [is] against the weight

of the evidence.”199 Our Court of Appeals cautions we should grant a motion for new trial “only

when ‘the great weight of the evidence cuts against the verdict and . . . [ ] a miscarriage of justice

would result if the verdict were to stand.’” 200 “A district court's power to grant a new trial is

limited to ensure that it does not substitute its judgment of the facts and the credibility of the

witnesses for that of the jury.”201

1. We did not err in excluding the email based on hearsay.

Cafaro argues we “erroneously rejected” the proffered email because: (1) Cafaro offered

it to show motivation, not for truth of the matter asserted; (2) it falls within the hearsay exception

for a business record; and (3) we erroneously found the email irrelevant. Mr. Giedgowd responds

we correctly found the email inadmissible, and even if it is admissible, our error is nothing more

than harmless error and does not warrant a new trial. We conclude the email is inadmissible as

hearsay and clarify the facts surrounding Cafaro’s proffer of this email at the eleventh hour. Even

if reasonable minds could dispute our evidentiary ruling, it constitutes harmless error and does

not warrant a new trial.

On the eve of trial, Cafaro’s attorney added an exhibit described by Cafaro as a “client

complaint” about Mr. Giedgowd.202 The proposed exhibit involves a chain of emails: an email

from Ms. Carroll to client, Tom Mitchell; a response from Mr. Mitchell to Ms. Carroll; and Ms.

Carroll’s forwarding of the email chain to Ms. Greenleaf, Mr. Giedgowd, Mr. Ries, Mr. Hartsig,

and Mr. Clark.203 We asked Cafaro’s counsel: “How does Mr. Mitchell’s communication to

Marcie Carroll as a nondecision maker come in?”204 She responded: “Your Honor, it comes in

not for the truth of the matter asserted but because it was part of the information that was used

when the decision makers were all cc’d or most of whom are cc’d on this email reviewed it and

took it or assumed it to be a criticism of Mr. Giedgowd’s performance. So it factored into the

decision . . . .”205 Mr. Giedgowd’s attorney objected because the exhibit contained “two levels of

hearsay . . . [t]he first layer of hearsay comes from Tom Mitchell to Marcie Carroll, and we

object to that. We agree that that should not be admissible.”206

After considering extensive argument from both sides on the admissibility of the

belatedly produced email from Mr. Mitchell to Ms. Carroll, we ruled the email “is classic

hearsay. It is a statement by a witness—unless, unless he testifies to it in his deposition, but even

then, it’s not relevant because he’s not writing it to a decision maker, nor is there any individual

in the email that Ms. Carroll is saying I’m going to share this with the decision makers. So

decide as you wish, but the ruling is that the email of February 8, 2019, at 3:15 p.m. is out.”207

Cafaro’s counsel asked us to clarify. We then discussed both hearsay and relevance again and

concluded: “[I]t’s out. It’s hearsay . . . the email itself . . . is classic hearsay, and it’s out.”208

Cafaro argues first the email from Mr. Mitchell to Ms. Carroll is not hearsay because it

offered the email as evidence of Cafaro’s motivation for firing Mr. Giedgowd, not for the truth of

the matter asserted. In doing so, Cafaro relies upon our Court of Appeals’s decision in

Fahnestock v. Carlisle Reg’l Med. Ctr.209 as well as an opinion from Judge Kugler in District of

New Jersey. Fatal to Cafaro’s argument is Ms. Carroll is not a decision maker; thus, Cafaro fails

to show how the email from Mr. Mitchell to Ms. Carroll can be offered to prove motivation for

firing when Ms. Carroll admittedly had nothing to do with the decision to fire Mr. Giedgowd.

In Fahnestock, our Court of Appeals upheld Judge Jones’s grant of summary judgment in

favor of the employer.210 Ms. Fahnestock appealed for various reasons, one of which included

the court considering improper hearsay evidence in granting summary judgment.211 Ms.

Fahnestock argued “the disciplinary citations produced by [the employer] constitute improper

hearsay evidence because they referenced unidentified physicians and it was undisclosed when

or how the complaints were made.”212 Our Court of Appeals found “[t]he citations in this case do

not constitute hearsay because they were not offered as evidence to prove the truth of the matters

asserted. The documents were being offered to explain [the employer’s] motivation for

terminating Fahnestock’s employment, not to assert the truth of the statements therein.”213

In Raghbat, relied upon by Cafaro in support of its argument, the plaintiff objected to

evidence of third-party complaints to the plaintiff’s supervisor as hearsay.214 Judge Kugler found

“these statements are not being offered to prove the truth of their contents . . . [r]ather, this

evidence is being offered to prove the effect of the state of mind of Cooper Health employees,

namely Plaintiff’s supervisor, Hummel.”215 Judge Kugler found these statements were not

hearsay for “purposes of determining whether [the plaintiff] was fired for discriminatory

reasons.”216

Like Judge Kugler in Raghbat, we stated on the record “if Ms. Greenleaf spoke to Mr.

Mitchell, that would come in. She’s the decision maker.”217 Our colleagues have found the same

when complaints are made to the decision maker.218 This is not the case here. Mr. Mitchell sent

an email to Ms. Carroll, who then forwarded the email to various Cafaro employees, including

some decision makers. This is classic double hearsay. Ms. Carroll is not a decision maker and

forwarding Mr. Mitchell’s email to decision makers does not get Cafaro out of the hearsay

exclusion for Mr. Mitchell’s email to Ms. Carroll. We properly excluded the email from Mr.

Mitchell to Ms. Carroll as hearsay.

Cafaro next argues the belatedly produced email is admissible because it is a business

record. Rule 806 provides: “The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness: (6) Records of a Regularly

Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record

was made at or near the time by – or from information transmitted by—someone with

knowledge; (B) the record was kept in the course of a regularly conducted activity of a business,

organization, occupation, or calling, whether or not for profit; (C) making the record was a

regular practice of that activity; (D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification that complies with Rule 902(11) or

(12) or with a statute permitting certification; and (E) the opponent does not show that the source

of information or the method or circumstances of preparation indicate a lack of

trustworthiness.”219 Mr. Giedgowd counters the email from Mr. Mitchell to Ms. Carroll is not a

business record because Cafaro fails to show Mr. Mitchell acted in the ordinary course of

business, the emails were regular and routine, or any of the other elements of Rule 803(6).

We asked Cafaro how the email from Mr. Mitchell to Ms. Carroll came in as evidence.

Cafaro answered it came in because it did not offer the email for the truth of the matter asserted.

Mr. Giedgowd objected to the proposed exhibits as double hearsay. Cafaro mentioned nothing

about the email constituting a business record in response to our inquiry nor Mr. Giedgowd’s

objection. Cafaro’s present argument is the first time it raised this issue. Cafaro waived this

argument as we could not have made substantial error based on exclusion of this evidence having

never heard the argument Cafaro now presents.220

Even if Cafaro did not waive its argument regarding the hearsay exception, Cafaro has

not met the elements of the business record exception because it offered nothing in the record to

satisfy the elements. It instead now argues it “could” have. What it could now offer is of no

moment to us in deciding a motion under Rule 59. It did not meet its burden when asked at trial

after belatedly producing the document on the eve of trial.

Cafaro next argues we erroneously excluded the exhibit based on relevance. To be clear,

we ruled “the email is out on hearsay. The testimony as to what he [(Mr. Mitchell)] told Marcie

Carroll, other than there’s some proof that he was speaking to people other than Marcie Carroll

at the same time is out on relevance.”221 We excluded Mr. Mitchell’s deposition testimony about

what he told Ms. Carroll based on relevance because Ms. Carroll is not a decision maker.222

Even if we erred in excluding this email, our error is harmless.223 An error is harmless if

it is highly probable the error did not affect the judgment.224 Cafaro argues the error is not

harmless because Mr. Giedgowd’s counsel questioned witnesses about client complaints and

reminded the jury about this in closing. Mr. Giedgowd counters if the email should have been

admitted, it is harmless error because Mr. Mitchell praised Mr. Giedgowd’s performance at his

deposition, which Mr. Giedgowd would have presented had the email came in, and the jury heard

other evidence of Mr. Giedgowd’s purported performance issues.

The jury heard evidence of Mr. Giedgowd’s purported performance issues, including

evidence from Ms. Greenleaf about two client meetings where Mr. Giedgowd did not perform

adequately according to Ms. Greenleaf. The jury also heard one of Cafaro’s decision makers, Mr.

Clark, testify Mr. Giedgowd did not get terminated because of performance issues. Cafaro had an

opportunity to re-direct its witnesses after opposing counsel questioned them on client

complaints. It is not highly probable another example of Mr. Giedgowd’s purported poor

performance would have affected the jury’s verdict in this case.

We deny Cafaro’s motion for a new trial based on our exclusion of evidence.

2. The verdict is not against the weight of the evidence.

Cafaro argues we should grant its motion for a new trial because “Mr. Giedgowd failed to

offer sufficient evidence to sustain his claim of age discrimination.”225 Cafaro offers the same

arguments it did in its motion for judgment as a matter of law regarding failure to prove but-for

causation.226 Mr. Giedgowd counters the verdict is not against the weight of the evidence

because he adduced sufficient evidence to sustain a verdict in his favor.227

We detailed the facts adduced at trial at length in our discussion of Cafaro’s motion for

judgment as a matter of law. Cafaro offers no new arguments here, except the standard for a new

trial is “substantially less demanding than that for judgment as a matter of law.”228 Even under

the less demanding standard, the jury’s verdict is supported by the evidence adduced at trial.

There is no miscarriage of justice by allowing the jury’s well-reasoned verdict to stand.

We deny Cafaro’s motion for a new trial based on the weight of the evidence.

C. We decline to deny the motion for a new trial conditioned on Mr. Giedgowd

accepting a remittitur.

Cafaro lastly argues if we deny the motion for a new trial, it should be on the condition

Mr. Giedgowd accepts a remittitur. “Remittitur is the well-established device employed when the

trial judge finds that a decision of a jury is clearly unsupported and/or excessive.”229 “A

remittitur is a substitution of the court’s judgment for the jury regarding the appropriate award of

damages. The court orders a remittitur when it believes the jury’s award is unreasonable on the

facts.”230

The jury’s verdict is not unreasonable in light of the facts. We deny Cafaro’s motion for

denial of a new trial on the condition of remittitur.

D. We award prejudgment interest on the back pay award.

Mr. Giedgowd moves to mold the judgment to include prejudgment interest on the jury’s

back pay award.231 He requests we apply the Internal Revenue Service overpayment rate under

28 U.S.C. § 6621(a)(1) and award him $6,100 in prejudgment interest from April 1, 2019 to July

29, 2021.232 Cafaro does not oppose the motion.

In employment cases, we may award prejudgment interest in our discretion if it “helps to

make victims of discrimination whole,” serving to “compensate a plaintiff for the loss of the use

of money that the plaintiff otherwise would have earned had he not been unjustly discharged.”233

There is a “strong presumption in favor of awarding prejudgment interest, except where the

award would result in ‘unusual inequities.’”234 The prejudgment interest rate applied to an award

of back pay is within our discretion.235

We grant Mr. Giedgowd’s unopposed motion and will apply the IRS overpayment rate in

26 U.S.C. § 6621 to restore him to his position if not for Cafaro’s discrimination.236

III. Conclusion

Our jury returned a verdict based on ample evidence Cafaro fired Mr. Giedgowd with his

age as a determinative reason. The jury’s verdict as to damages is based on adduced evidence.

Cafaro disagrees. But the jury heard both sides and presumably believed Mr. Giedgowd rather

than Cafaro’s multiple witnesses who presently often conflicting stories.

We deny Cafaro’s motion for judgment as a matter of law, for a new trial, or for denial of

a new trial based on remittitur. We grant Mr. Giedgowd’s unopposed motion to mold the

judgment to include prejudgment interest on his back pay award.

1 Notes of Testimony (“N.T.”), July 26, 2021, at 54:7–9.

2 Id. at 54:13–17, 55:18–24.

3 Id. at 57:12–21, 115:1–8.

4 Id. at 149:20–150:12.

5 Id. at 55:9–56:1.

6 Id. at 56:2–8.

7 Id. at 57:9–11; 138:2–25.

8 Id. at 58:7–11.

9 Id. at 59:4–11.

10 Id. at 59:12–60:14.

11 Id.

12 Id. at 61:15–62:22.

13 Id. at 63:24–64:1.

14 Id. at 66:2–11.

15 Id. at 66:16–68:7. Mr. Ries did not have a tax certification. Id. at 68:9–14.

16 Id. at 56:9–15, 61:11–14.

17 Id. at 65:9–18; see also N.T., July 28, 2021, at 34:6–13.

18 N.T., July 26, 2021, at 60:15–61:2.

19 Id. at 60:23–61:10.

20 Id. at 58:12–20, 62:23–63:7, 126:6–23; see also N.T., July 28, 2021, at 21:23–22:1, 22:16–25.

21 N.T., July 26, 2021, at 63:3–5.

22 Id. at 63:6–7.

23 Id. at 63:8–14; N.T., July 28, 2021, at 22:16–25

24 N.T., July 26, 2021, at 63:15–18.

25 Id. at 68:15–70:12; 93:19–94:1.

26 Id. at 70:10–12.

27 Id. at 58:21–25.

28 Id. at 59:1–3, 14–16.

29 Id. at 84:3–5.

30 Id. at 71:7–15.

31 N.T., July 27, 2021, at 52:13–16, 215:14–22.

32 N.T., July 26, 2021, at 144:12–146:21.

33 N.T., July 27, 2021, at 136:4–137:17.

34 Trial Ex. 41 (organization chart indicating positions); N.T., July 27, 2021, at 65:22–66:4

(indicating Cafaro placed Ms. Conner into the retirement plan advisor role in January 2019);

N.T., July 26, 2021, at 59:17–18 (Mr. Ries age forty-four at time of acquisition); N.T., July 27,

2021, at 34:17–23) (Ms. Conner age forty-nine at time of Mr. Giedgowd’s termination).

35 N.T., July 27, 2021, at 67:13–14, 68:5–9.

36 Id., at 99:3–14, 100:2–6.

37 Id. at 105:8–107:25, 204:21–205:4.

38 Id. at 106:10–108:10.

39 Id. at 115:18–116:4; see also Trial Ex. 43 (job description).

40 Trial Ex. 43; see also N.T., July 26, 2021, at 74:17–75:23.

41 N.T., July 27, 2021, at 33:20–34:3, 117:21–118:6, 189:15–22.

42 Id. at 131:4–20.

43 Id. at 107:18–108:10.

44 Id. at 38:18–21, 119:1–3.

45 Id. at 38:22–24; 41:1–11.

46 Id. at 119:24–120:17, 121:8–16.

47 Id. at 35:19–36:5 (age twenty-eight at time of Mr. Giedgowd’s termination), 120:18–25.

48 Id. at 121:4–7.

49 Id. at 126:9–22.

50 Id. at 126:6–127:19.

51 Id. at 117:19–118:25.

52 Id. at 242:13–243:14.

53 Id. at 33:9–34:3.

54 Id. at 127:20–129:13.

55 Id. at 128:21–129:13.

56 Id. at 129:14–23.

57 Id. at 34:24–35:18; N.T., July 28, 2021, at 25:25–26:8, 35:7–20, 35:24–36:4, 36:10–18.

58 Id. at 121:17–20.

59 Id. at 121:21–25.

60 Id. at 122:1–14. Mr. Giedgowd testified these roles comprised a very small part of his job at

Carroll Consulting. N.T., July 26, 2021, at 138:5–139:25.

61 N.T., July 27, 2021, at 123:3–7.

62 Id. at 123:8–25.

63 Id. at 123:12–124:25.

64 Id. at 125:1–126:5, 133:6–13.

65 Id. at 129:24–132:8, 132:22.

66 Id. at 131:2–4.

67 Id at 132:14–21.

68 N.T., July 26, 2021, at 65:9–14; N.T. 07/28/2021 at 33:8–34:5.

69 N.T., July 27, 2021, at 41:1–4, 179:2–5, 206:14–19.

70 Id. at 81:15–82:5.

71 Id. at 184:7–24; N.T., July 26, 2021, at 77:15–20, 78:18–24, 89:6–25. The jury also heard Ms.

Carroll’s deposition testimony describing Mr. Giedgowd as more qualified than Ms. Conner,

acknowledged she paid him the most out of any retirement plan advisor at Carroll Consultants,

and testified he had the most experience and had more positive relationships with his clients than

Mr. Ries. N.T., July 28, 2021, at 40:7–42:17. She also described his dual certification with tax as

“helpful” experience. Id. at 46:24–47:5. She described him as “dedicated, loyal, and a good

employee and knowledgeable.” Id. at 54:5–10. Ms. Carroll paid Mr. Giedgowd $100,000 “the

day that he was leaving the office” based on a previous “verbal discussion” before his

termination and because she “valued Tom. [She] liked Tom and [she] valued him as an employee

- as a long-term employee with the company, very loyal.” Id. at 30:17–31:6. She discussed the

payment with Mr. Giedgowd and “basically said that [she] was going to give him that – you

know, $100,000 for all of his hard work and efforts and his loyalty.” Id. at 31:3–6.

72 N.T., July 27, 2021, at 183:15–22.

73 N.T., July 26, 2021, at 78:25–79:11.

74 Id. at 70:15–18.

75 N.T., July 27, 2021, at 138:13–22.

76 N.T., July 26, 2021, at 79:12–20.

77 N.T., July 27, 2021, at 178:2–9.

78 Id. at 237:5–9.

79 Id. at 234:1–7.

80 Id. at 234:20–23.

81 Id. at 236:2–9.

82 Id. at 236:2–14.

83 Id. at 179:10–18, 240:11–13; N.T., July 26, 2021, at 83:12–15.

84 N.T., July 27, 2021, at 214:12–16, 239:15–21, 244:19–21.

Mr. Greenleaf testified:

Q: Can you understand how when the oldest employee of the company is called into a

meeting and asked to tell his clients he’s retiring, that a reasonable person could

understand that age is on the mind of that decision maker?

A: Yes.

85 Id. at 180:17–181:18, 241:2–21.

86 N.T., July 26, 2021, at 79:21–80:4, 80:13–15, 81:5–8.

87 Id. at 81:21–82:5.

88 Id. at 82:10–17.

89 Id. at 81:5–8.

90 Id.

91 N.T., July 27, 2021, at 242:1–12.

92 N.T., July 26, 2021, at 81:11–14. Mr. Giedgowd testified Mr. Hartsig called Wayne Greenleaf,

but Mr. Clark and Mr. Hartsig testified Mr. Hartsig called Mr. Clark. See id., N.T., July 27, 2021,

at 141:1–4; 240:17–241:25.

93 N.T., July 27, 2021, at 143:8–15.

94 Id. at 143:21–22.

95 Id. at 145:5–14.

96 Id.

97 Id.

98 N.T., July 26, 2021, at 91:23–92:4.

99 Id. at 92:8–25.

100 Id. at 92:24–25.

101 Id. at 93:1–3.

102 N.T., July 27, 2021, at 7:2–5.

103 N.T., July 26, 2021, at 93:4–23.

104 Id. at 95:5–17.

105 Id. at 91:18–20, 92:12–14.

106 Id. at 94:11–24.

107 Id. at 97:6–9.

108 N.T., July 27, 2021, at 9:15–23.

109 Id. at 10:18–15:6.

110 Id. at 17:11–14.

111 Id. at 18:1–3.

112 N.T., July 26, 2021, at 82:18–21.

113 Id. at 91:8–11.

114 Id. at 106:3–107:8.

115 Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).

116 Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009).

117 Lightning Lube, Inc., 4 F.3d at 1166.

118 Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009) (citation omitted).

119 Id. (quoting Marra v. Phila. Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007)).

120 ECF Doc. No. 78-1 at 9–11 (relying on Heverling v. McNeil Consumer Pharms., No. 16-600,

2017 WL 714047 (M.D. Pa. Feb. 23, 2017 and Burton v. Pa. State Police, 990 F. Supp. 2d 478

(M.D. Pa. 2014), aff’d, 612 F. App’x 124 (3d Cir. 2015)).

121 Heverling, 2017 WL 714047, at *1, 4 (emphasis in original).

122 Burton, 990 F. Supp. 2d at 497–98.

123 Id. at 510–11, n. 12.

124 Id. at 510–11.

125 Id. at 511.

126 N.T., July 26, 2021, at 161:12–15.

127 Robinson v. City of Phila., 491 F. App’x 295, 299 (3d Cir. 2012).

128 Hooker v. Novo Nordisk Inc., No. 20-1427, 2021 WL 3087786, at *4 (3d Cir. July 22, 2021)

(citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)) (publication in the Federal Appendix

forthcoming).

129 ECF Doc. No. 78-1 at 11–16.

130 N.T., July 27, 2021, at 41:1–4, 179:2–5, 206:14–19.

131 Trial Ex. 43; N.T., July 26, 2021, at 77:5–11; N.T., 07/27/2021, at 33:20–34:3, 115:18–116:4,

117:19–118:6, 189:15–22.

132 N.T., July 27, 2021, at 117:19–118:25, 242:13–243:14.

133 Id. at 34:24–35:18; N.T., July 28, 2021, at 25:25–26:8, 35:7–20, 35:24–36:4, 36:10–18.

134 N.T., July 27, 2021, at 33:9–34:4, 126:9–127:19, 127:20–129:13.

135 Id. at 36:21–37:1, 81:15–82:5, 121:17–122:14, 123:3–126:5, 129:24–132:22, 133:6–13; N.T.,

July 28, 2021, at 33:8–34:5, 40:7–42:17, 46:24–47:5, 54:5–10.

136 N.T., July 26, 2021, at 54:7–9, 55:9–56:15, 57:9–21, 58:7–11, 59:1–3, 59:14–16, 61:11–

62:22, 65:9–18, 66:2–11, 66:16–68:7, 115:1–8, 138:2–25, 149:20–25; N.T., July 28, 2021, at

34:6–13.

137 N.T., July 27, 2021, at 105:8–107:25, 204:21–205:4.

138 Id. at 183:15–22.

139 Id. at 102:3–5, 184:7–24.

140 N.T., July 26, 2021, at 77:15–20, 78:18–24, 89:6–25.

141 N.T., July 27, 2021, at 180:17–181:18, 241:2–21.

142 Id. at 178:2–9, 237:5–9.

143 Id. at 214:12–16, 234:1–7, 234:20–23, 236:2–14, 239:15–21, 244:19–21.

144 N.T., July 26, 2021, at 79:21–80:4, 80:13–15, 81:5–8; N.T., July 27, 2021, at 242:1–12.

145 N.T., July 26, 2021, at 84:3–5.

146 Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009).

147 ECF Doc. No. 78-1 at 14.

148 Id. Cafaro relies on the following reasoning provided by the Court:

For purposes of today, in terms of this action, there is just – the one

fact that jumps out from the plaintiff’s side that mandates and

militates in favor of denial – and I am denying the Rule 50 motion

– is that you say there’s no basis to show it, there’s no – the

performance was – it was horrendous, but Ms. Greenleaf did not

use that word – but the performance was embarrassing, that may

very well be true. What raises severe serious questions for a jury,

based on the Rule 50 standard I must apply today, is that none of

this was told at all or shared with the plaintiff. And so there’s a

question as to whether there is an other (sic) purpose here.

N.T., July 27, 2021, at 172:15–173:1.

149 N.T., July 28, 2021, at 98:3–24.

150 Id.

151 Id. at 99:10–100:3.

152 ECF Doc. No. 78-1 at 16–19.

153 Id.

154 Ngai v. Urban Outfitters, No. 19-1480, 2021 WL 1175155, *20 (E.D. Pa. Mar. 29, 2021).

155 Booker v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir. 1995).

156 Ngai, 2021 WL 1175155, at *20 (citing Briggs v. Temple Univ., 339 F. Supp. 3d 466, 507

(E.D. Pa. 2018); see also Yingst v Texas New Mexico News Paper Partnership, No. 12-1803,

2014 WL 3952611, *11 (W.D. Pa. Aug. 13, 2014); McKenna v. City of Phila., Nos. 98-5835, 99-

1163, 2010 WL 2891591, at *18 (E.D. Pa. July 20, 2010); Holocheck v. Luzerne Cnty. Head

Start, Inc., No. 04-2082, 2007 WL 954308, at *14–15 (M.D. Pa. Mar. 28, 2007).

In Caufield, our Court of Appeals cited its decision in Tubari Ltd. Inc. v. NLRB, approvingly in

the context of an ADEA claim. Caufield v. Center Area Sch. Dist., 133 F. App’x 4, 10–11 (3d

Cir. 2005). It held the defendant’s burden for damage mitigation as follows: “To prove a failure

to mitigate, [defendant] had to prove either that other substantially equivalent positions were

available to [plaintiff] and she failed to use reasonable diligence in attempting to secure those

positions, or alternatively, that [plaintiff] withdrew entirely from the employment market.” Id.

157 Ngai, 2021 WL 1175155, at *20 (citing Brigg, 339 F. Supp. 3d at 507).

158 Id. (emphasis in original).

159 Id.

160 Holocheck, 2007 WL 954308, at *1, 5.

161 Id. at *14.

162 Id. at *15.

163 Id.

164 Id.

165 Briggs, 339 F. Supp. 3d at 477.

166 Id. at 478.

167 Id. at 477.

168 Id. at 507.

169 Id.

170 Id. at 508.

171 Id.

172 Id.

173 Id.

174 Id. (emphasis in original).

175 Id. at 509.

176 Id. (further citations omitted).

177 Id. at 510.

178 Id. Judge Kelly further noted, “Temple does not argue that she was insufficiently diligent in

obtaining her current employment, that her current employment is not substantially equivalent, or

that she lowered her sights too quickly. Instead, Temple would rather the Court place the burden

on Briggs that she must always be searching for a non-existent job that has not presented itself

over twenty-eight months or that she may never be allowed to let go or move on with her life.”

Id.

179 N.T., July 26, 2021, at 91:23–92:4.

180 Id. at 95:4–17.

181 Cafaro also seems to focus on Mr. Giedgowd’s new employment being a subcontractor role as

opposed to an employee. Cafaro provides no argument or caselaw supporting its focus on this

distinction, and its argument regarding failure to mitigate. We will not make the argument for

Cafaro.

182 Cafaro also argues it “undercut[s] Mr. Giedgowd’s argument for entitlement to back pay,” but

Cafaro failed to adduce the date of expiration at trial nor does Cafaro expand on this argument.

183 ECF Doc. No. 78-1 at 19–21 (relying on Spence v. Bd. of Educ. of Christina Sch. Dist., 806

F.2d 1198, 1201 (3d Cir. 1986), Rush v. Scott Specialty Gases, Inc., 930 F. Supp. 194 (E.D. Pa.

1996), rev’d on other grounds, 113 F.3d 476 (3d Cir. 1997), and Valentin v. Crozier-Chester

Med. Ctr., 986 F. Supp. 292 (E.D. Pa. 1997)).

184 ECF Doc. No. 79 at 17–19 (relying on Middlebrooks v. Teva Pharms. USA, Inc., No. 17-412,

2019 WL 438092 (E.D. Pa. Feb. 4, 2019)).

185 Gunby v. Pa. Elec. Co., 840 F.2d 1108, 1121 (3d Cir. 1988); see also Briggs, 339 F.Supp.3d

at 518.

186 Briggs, 339 F.Supp.3d at 518 (citing Rush, 930 F.Supp. at 199 (quoting Spence, 806 F.2d t

1201).

187 Id. (further citation omitted).

188 Middlebrooks, 2019 WL 438092, at *18; see, e.g. Williams v. Care, No. 14-6347, 2016 WL

4478810, at *5 (E.D. Pa. Aug. 25, 2016); Holt v. Pennsylvania, No. 10-5510, 2015 WL 4944032,

at *28 (E.D. Pa. Aug. 19, 2015), aff’d in part, rev’d in part on other grounds and remanded, 683

F. App’x 151 (3d. Cir. 2017); Jeckell v. Crestwood Area Sch. Dist., No. 04-1135, 2008 WL

4372797, at *6 (M.D. Pa. Sept. 18, 2008).

189 N.T., July 26, 2021, at 90:3.

190 Id. at 81:21–82:5.

191 Id. at 82:10–17.

192 Id. at 82:18–21.

193 Id. at 91:8–11.

194 Id. at 90:1–8.

195 See Cortez v. Trans Union LLC, 617 F.3d 688, 715–16 (3d Cir. 2010) (further citations

omitted); Ward v. Wexford Health Sources, Inc., No. 14-6984, 2016 WL 7335350, at *4 (E.D.

Pa. Jan. 5, 2016).

196 ECF Doc. No. 78-1 at 22–28.

197 Fed. R. Civ. P. 59(a)(1)(A).

198 Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir. 1992) (“The decision to grant or deny

a new trial is confided almost entirely to the discretion of the district court”) (citing Allied Chem.

Corp. v. Daiflon, Inc. 449 U.S. 33, 36 (1980)).

199 Snider v. Sterling Airways, Inc., No. 13-2949, 2017 WL 3873540, at *2 (E.D. Pa. Sept. 5,

2017) (citations omitted).

200 Leonard v. Stemtech Int’l Inc., 834 F.3d 376, 386 (3d Cir. 2016) (quoting Springer v. Henry,

435 F.3d 268, 274 (3d Cir. 2006)).

201 Id.

202 N.T., July 26, 2021, at 10:24–11:2.

203 ECF Doc. No. 78-6.

204 N.T., July 26, 2021, at 11:23–4.

205 Id. at 11:25–12:5.

206 Id. at 13:9–14.

207 Id. at 16:13–21.

208 Id. at 18:4–10.

209 659 F. App’x 75 (3d Cir. 2016).

210 Id. at 75.

211 Id. at 78.

212 Id.

213 Id. (citing Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997)).

214 Raghbat v. Cooper Health System, No. 16-2045, 2018 WL 2230541, at *6 (D.N.J. May 16,

2018).

215 Id. (citing Teubert v. SRA Int’l, Inc., 192 F.Supp.3d 569, 578 (D.N.J. 2016) and Fahnestock,

659 F. App’x at 78).

216 Id.

217 N.T., July 26, 2021, at 13:22–25.

218 See, e.g. Teubert, 192 F.Supp.3d at 578–79 (discussing emails from plaintiff and his

supervisors and finding “Defendant argues that evidence documenting the events leading up to

Teubert’s termination are offered not to prove the truth of the matter asserted . . . but to show

SRA’s representative’s state of mind—how [the plaintiff’s] superiors perceived his behavior and

what documents they relied on when Hirsch, human resources, and [the employer’s legal

counsel] decided to terminate Plaintiff’s employment.”); Mikulan v. Allegheny Cnty., No. 15-

1007, 2017 WL 2374430, at *4 (W.D. Pa. May 31, 2017) (finding “the preceding hearsay

analysis is different with respect to Warden Harper because he was the decisionmaker who

decided to terminate [the plaintiff’s] employment . . . If Warden Harper testifies at the trial that

the rumors about [the plaintiff’s] negative comments motivated his termination . . . it would still

nevertheless be testimony offered to explain his motivation for terminating [the plaintiff,] and,

therefore, would not be inadmissible hearsay); Hite v. Peters, No. 07-4992, 2010 WL 4674400,

at *14 (D.N.J. June 30, 2010) (“The record further reveals that the reports ‘from others’ include

the emails, noted above, which [the supervisor] received. These emails are either admissible as

nonhearsay, offered to demonstrate [the supervisor’s] mindset regarding the termination, or are

likely admissible under the business records exception to the hearsay rule.”).

219 Fed. R. Evid. 803(6).

220 See, e.g. Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir. 1998) (“[I]t is clear a party who fails to

object to errors at trial waives the right to complain about them following trial.”); see also

Kremer v. A Woman’s Place, No. 05-3606, 2007 WL 9725052, at *5–6 (rejecting objection

based on unfair prejudice not raised at trial, only in post-trial motions).Here, Cafaro attempted to

add an exhibit at the eleventh hour. We asked counsel how Cafaro planned to move the exhibit

into evidence. Cafaro responded it did not proffer the evidence for the truth of the matter

asserted. Mr. Giedgowd objected to the exhibit as double hearsay. Cafaro never responded the

exhibit is a business record exception. Cafaro cannot now do so.

221 N.T., July 26, 2021, at 19:15–19.

Cafaro points to our reasoning on the record when we stated “[T]he direct email is out. It is

classic hearsay. It is a statement by a witness – unless, unless he testifies to it in his deposition,

but even then, it’s not relevant because he’s not writing it to a decision maker, nor is there any

indication in the email that Ms. Carroll is saying I’m going to share this with the decision

makers.” Id. at 16:12–19. We stated several times after this the reason we excluded the email as

hearsay, and we excluded Mr. Mitchell’s deposition testimony about the contents of the email to

Ms. Carroll based on relevance because she is not a decision maker.

222 The record, in relevant part, provides:

Mr. Console: Your Honor, I’m sorry, just a further point of

clarification, Mr. Mitchell then should not – he should not be

testifying about the contents of that email to Marcie because Your

Honor said that would be irrelevant; is that right?

The Court: That’s correct. The content – yes. The trick – the

subtlety here is – and sometimes you asked the question that didn’t

quote from it, and counsel said let’s quote the email. That quoting

from the email is hearsay. Okay. Now, if – to draw the subtlety

here, if Mitchell told Carroll something, that’s out because it’s

relevant – it’s not relevant, unless – unless he was on some kind of

conversation or understood that that conversation was being held

with decision makers. All right? So you’re actually—counsel is

absolutely right. Ms. Rigo is absolutely right. He doesn’t have to

know who the decision makers are, but we do. It’s not relevant if

you’re saying to the copy guy: I really hate Giedgowd. So what.

Right. In this sense, so what with Marcie Carroll. So it’s out – the

email is out on hearsay. The testimony as to what he told Marcie

Carroll, other than there’s some proof that he was speaking to

people other than Marcie Carroll at the same time is out on

relevance. N.T., July 26, 2021, at 18:21–19:19.

223 Fed. R. Civ. P. 61.

224 McQueeny v. Wilmington Trust Co., 779 F.2d 916, 924–28 (3d Cir. 1985) (applying criminal

harmless error standard to civil cases).

225 ECF Doc No. 78-1 at 28.

226 We analyze claims under the PHRA and ADEA using the same framework. Willis v. UPMC

Children’s Hosp. of Pitt., 808 F.3d 638, 643 (3d Cir. 2015).

To prove age discrimination, the plaintiff must prove but-for causation. Id. When relying on

circumstantial evidence of discrimination, the three-part burden shifting test set forth in

McDonnell Dougal Corp. v. Green, 411 U.S. 792 (1973) applies. Willis, 808 F.3d at 644.

The plaintiff must first prove the prima facie case for discrimination by demonstrating: “(1) the

plaintiff is at least forty years old; (2) the plaintiff suffered an adverse employment decision; (3)

the plaintiff was qualified for the position in question; and (4) the plaintiff was ultimately

replaced by another employee who was sufficiently younger so as to support an inference of a

discriminatory motive.” Id. The employer than must “articulate a legitimate nondiscriminatory

reason for the adverse employment action.” Id. “If the employer satisfied this second step, the

burden shifts back once more to the plaintiff to show, by a preponderance of the evidence, that

the employer’s proffered legitimate, nondiscriminatory reason was pretextual.” Id. at 644–45.

Cafaro argues Mr. Giedgowd failed to prove “but-for causation” because he only offered

evidence “Cafaro did not give him a reason during the termination meeting or apprise him of his

poor performance throughout his employment;” he only “presented evidence Cafaro made the

wrong business decision by terminating him and retaining Mr. Ries and Ms. Conner;” and

“alleging he was the oldest employee.” ECF Doc. No. 78-1 at 28.

Cafaro does not argue Mr. Giedgowd failed to prove the prima facie case or any other basis than

the three listed above. We will not endeavor to make any arguments for them, but note, upon our

review of the trial transcripts, Mr. Giedgowd seemingly did not adduce his purported

replacement—Eileen Mahoney’s— age. Cafaro may not have challenged on this ground because

Ms. Mahoney’s age is undisputed based on Cafaro’s admissions in its statement of undisputed

facts to its motion for summary judgment. ECF Doc. No. 18, Appx. 0002. It is not our job to

make arguments for the litigant.

227 ECF Doc. No. 79 at 23–24.

228 ECF Doc No. 78-1 at 28.

229 Cortez, 617 F.3d at 715 (quoting Spence, 806 F.2d at 1201).

230 Id. (citing Johansen v. Combustion Engineering, Inc., 170 F.3d 1320 (11th Cir. 1999)).

231 ECF Doc. No. 77.

232 Id. Title 28 U.S.C. § 1961(a) is the federal post-judgment interest rate district courts may

apply in calculating prejudgment interest. See Koch v. Mack Trucks, Inc., No. 16-4857, 2018 WL

2461921, at *9 (E.D. Pa. June 1, 2018).

233 Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 868 (3d Cir. 1995); see also Johnson v.

Dependability Co., LLC, No. 15-3355, 2016 WL 852038, at *3 (E.D. Pa. Mar. 3, 2016)

(“Plaintiff also seeks prejudgment interest on her back pay award, which is authorized under the

PHRA and ADA.”); Diaz v. Saucon Valley Manor, Inc., No. 12-433, 2013 WL 4564300, at *2

(E.D. Pa. Aug. 27, 2013) (“I have the discretion to award pre-judgment interest in back-pay

damages under the PHRA and ADA.”); Marra v. Phila. Housing Auth., 404 F. Supp. 2d 839, 848

n.2 (E.D. Pa. 2005) (“Given the similarity of the goals of the available remedies under Title VII

and the PHRA-to make the victims of discrimination whole-the Court will adhere to the

presumption in this action under the PHRA.”).

234 Booker, 64 F.3d at 868.

235 Taxman v. Bd. of Educ. of Piscataway, 91 F.3d 1547, 1566 (3d Cir. 1996); Johnson, 2016 WL

852038, at *3 (citing Diaz, 2013 WL 4564300, at *2).

236 See Taxman, 91 F.3d at 1566 (affirming trial court’s application of IRS rate); Acosta v.

Fairmount Foundry Inc., 391 F. Supp. 3d 395, 413–14 (E.D. Pa. 2019) (awarding prejudgment

interest at IRS overpayment rate); Middlebrooks, 2019 WL 438092, at *22 (awarding

prejudgment interest at IRS overpayment rate); Security and Data Tech., Inc. v. Sch. Dist. of

Phila., No. 12-2392, 2016 WL 7427758, at *21 (E.D. Pa. Dec. 20, 2016) (awarding prejudgment

interest to plaintiff in action under 42 U.S.C. § 1981 at IRS overpayment rate); Johnson, 2016

WL 852038, at *3–4 (E.D. Pa. Mar. 3, 2016) (awarding prejudgment interest as appropriate in

ADA case at IRS overpayment rate); Marra, 404 F. Supp. 2d at 848 n.2 (awarding prejudgment

interest on back pay award at IRS rate in Title VII and PHRA claims).