Appendix — Lightfoot v. Union Carbide Corp.

TABLE OF CONTENTS

PAGE

Summary Order Issued as Mandate March 22, 1999 .. la

Civil Judgment dated January 18, 1998................ 7a

Decision Issued as Mandate April 17, 1997........... 9a

Decision Decided March 27, 1997..................... lla

Civil Judgment filed July 24, 1995 .................... 44a

First Trial Transcript; Jury Verdict .................... 46a

Opinion and Order dated August 28, 1998 ............ 49a

Order and Opinion dated October 24, 1995............ 54a

SEE WOME BOUINONONG 50s vcccccccceccscccesesevctecees 63a

Opinion and Order dated January 23, 1995............ 67a

Order and Opinion dated July 28, 1994................ 70a

Summary Judgment Order and Opinion dated May 12,

I ia DeaRa oie in os dedeeswsesdckscassseeess 74a

Recusal Affidavit of Richard Hall Lightfoot sworn

Un ce ny eduesadeeevaswesceseeveees 95a

Purported Unconditional Letter dated December 3,

IL ECU dad suas dnewsdeenevescesevasiess 105a

ICD Marketing Group Ratings dated April, 1992 ..... 107a

Constitution and Statutory Provisions Involved....... 108a

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 98-7166

Filed March 1, 1999

Issued as Mandate March 22, 1999

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED AS

PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER

COURT, BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE, OR IN

ANY CASE FOR PURPOSES OF COLLATERAL ESTOP-

PEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the first day of

March, one thousand nine hundred and ninety-nine.

Present: HONORABLE ELLSWORTH A. VAN GRAAFEILAND,

HONORABLE AMALYA L. KEARSE,

HONORABLE FRED I. PARKER,

Circuit Judges.

2a

RICHARD HALL LIGHTFOOT,

Plaintiff-Appellant,

—_V—

UNION CARBIDE Corp., A.W. LUTZ, President, Industrial

Chemicals Division, W.E. SHACKELFORD, Vice President,

Industrial Chemicals Division,

Defendants-Appellees.

Appearing for Appellant: Arthur M. Wisehart, Wisehart &

Koch, N.Y., N.Y.

Appearing for Appellees: Joel E. Cohen, McDermott, Will

& Emery, N.Y., N.Y.

Appeal from the United States District Court for the South-

ern District of New York.

This cause came on to be heard on record from the United

States District Court for the Southern Circuit of New York,

and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District Court

be and it hereby is affirmed.

Plaintiff Richard Hall Lightfoot appeals from a judgment of

the United States District Court for the Southern District of

New York, Harold Baer, Jr., Judge, awarding him $20,000 in

compensatory damages against defendants Union Carbide

Corporation (“Union Carbide”) et al., following a jury verdict

in that amount on the retrial, following a prior appeal to this

Court, see Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d

Cir. 1997) (“Lightfoot I’), of the damages issues on his state-

3a

law claim of age discrimination. On appeal, Lightfoot con-

tends principally that the district court impermissibly ordered

a conditional remittitur to $75,000 of the first jury’s verdict

of $750,000. He also contends that he should have been per-

mitted to amend his complaint following the remand in Light-

foot I in order to reinstate a previously dismissed claim and to

add a new claim; that the court erroneously excluded certain

evidence at the retrial; and that the district judge should have

recused himself. Finding no merit in Lightfoot’s contentions,

we affirm.

Lightfoot’s principal contention need not detain us long, for

it was rejected in Lightfoot I, and we “will not overrule a

prior decision of a panel of this Court absent a change in the

law by higher authority or by way of an in banc proceeding of

this Court,” Samuels v. Mann, 13 F.3d 522, 526 (2d Cir.

1993), cert. denied, 513 U.S. 849 (1994): see also In re

Mediators, Inc., 105 F.3d 822, 828 (2d Cir. 1997); United

States v. Coffin, 76 F.3d 494, 496 n.1 (2d Cir.), cert. denied,

517 U.S. 1147 (1996). A prior panel’s ruling on an issue that

was briefed, argued, and addressed by the parties creates a

binding precedent constraining future panels. See, e.g., Getty

Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103,

113 (2d Cir. 1988), cert. denied, 490 U.S. 1006 (1989);

Korwek v. Hunt, 827 F.2d 874, 877 (2d Cir. 1987).

In Lightfoot I, Lightfoot challenged the district court's

remittitur order, contending, inter alia, that the court’s reduc-

tion of the verdict constituted error as a matter of law, that it

violated his right to a jury trial, that the size of the verdict

was supported by the evidence, and that the district court

erred by not offering him the option of a new trial as an alter-

native to remittitur. He argued that the district court’s order

“reducing the damages awarded by the jury should be vacated

and the damage award of the jury reinstated.” (Lightfoot brief

on appeal in Lightfoot I, dated March 1, 1996, at 48.) We con-

sidered all of Lightfoot’s contentions, and we found merit

only in the contention that “the district court erred in grant-

ing defendants’ motion for a remittitur without offering Light-

4a

foot the option of a new trial on damages,” Lightfoot /], 110

F.3d at 915, and we remanded “to allow Lightfoot the oppor-

tunity to exercise this option,” id. We did not find any other

error, and we did not grant Lightfoot’s request for reinstate-

ment of the judgment. To the extent that Lightfoot makes

arguments on the present appeal that he made to the Lightfoot

] panel, they have been rejected and we see no reason to

revisit them. To the extent that Lightfoot suggests that any of

his present challenges to the pre-Lightfoot / remittitur order

were not made on his prior appeal, those challenges have been

waived. See, e.g., County of Suffolk v. Stone & Webster Engi-

neering Corp., 106 F.3d 1112, 1117 (2d Cir. 1997) (a decision

made at a previous stage of litigation, which could have been

challenged in the ensuing appeal but was not, becomes the

law of the case); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d

Cir. 1981) (“It would be absurd that a party who has chosen

not to argue a point on a first appeal should stand better as

regards the law of the case than one who had argued and

lost.”), cert. denied, 459 U.S. 828 (1982).

Lightfoot’s other contentions with respect to pre-Lightfoot

/ rulings of the district court are similarly rejected for the

above reasons.

We also find no merit in the contention that the district

court, following the remand in Lightfoot I, should have

allowed Lightfoot to amend his complaint to reinstate a pre-

viously dismissed claim under the New York City Human

Rights Law or to plead a new claim for retaliation. The lia-

bility phase of the case had ended, and Lightfoot I remanded

for a partial new trial—-if plaintiff chose that option over the

remittitur that would have ended the entire case—solely on

the issue of damages. The denial of Lightfoot’s motion to add

additional claims was well within the district court’s discre-

tion.

Nor is there merit in Lightfoot’s evidentiary challenges.

The trial court “has wide discretion in controlling the admis-

sibility of testimony and other evidence, and absent a demon-

stration of abuse of discretion, its rulings will not be

Sa

disturbed.” Zahra v. Town of Southold, 48 F.3d 674, 686 (2d

Cir. 1995); see also Healey v. Chelsea Resources, Ltd., 947

F.2d 611, 619-20 (2d Cir. 1991). “The same standard of

review applies to a district court’s evidentiary rulings on

expert testimony.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d

Cir. 1997). The trial court acts as a gatekeeper with respect to

expert testimony, properly admitting only such testimony as

would help the jury understand the evidence or determine a

fact at issue. See Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 591-93 (1993); Raskin v. Wyatt Co., 125

F.3d at 66 & n.5; McCullock v. H.B. Fuller Co., 61 F.3d 1038,

1042-43 (2d Cir. 1995). Thus, the court must “ensur[e] that an

expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand.” Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. at 597. Where the record indicates

that the expert failed to consider necessary factors or that his

analysis rests on faulty assumptions, the trial court has dis-

cretion to exclude his proffered testimony for lack of proba-

tive value. See, e.g., Raskin v. Wyatt Co., 125 F.3d at 67-68.

We see no abuse of discretion in the trial court’s eviden-

tiary rulings at Lightfoot’s retrial of the damages issues.

Lightfoot argues, inter alia, that the court could not properly

exclude the expert testimony of Dr. Cellura because Cellura

was allowed to testify at the first trial. We are unpersuaded

for several reasons. At the first trial Cellura testified as a lay

witness; this did not mean that he must be allowed to testify

at the retrial as an expert. Further, even had he testified as an

expert at the first trial, his testimony would not necessarily

have been relevant at the retrial, for the first trial encom-

passed issues of both damages and liability, whereas the

retrial was limited to damages. Finally, Lightfoot sought to

have Cellura testify to “the level of compensation that [Light-

foot] should have received at Union Carbide . . . before his

termination became tainted by age discrimination” (Lightfoot

brief on the present appeal, dated May 13, 1998, at 25). That

testimony was properly excluded, as it would have been rel-

evant only to Lightfoot’s claim that he was denied Salary

6a

increases at Union Carbide, a claim previously rejected by

both the district court and this Court in Lightfoot I, 110 F.3d

at 906-08.

It was also well within the trial court’s discretion to

exclude the proffered testimony of an accountant as to the dif-

ference between the salary Lightfoot would have received at

Union Carbide, had he not been terminated, and what he sub-

sequently earned as a consultant. Such a calculation is essen-

tially one of front pay, to which Lightfoot was not entitled.

The proffered evidence did not bear on the type of damages

he was entitled to recover. Further, the accountant’s testimony

was based on the flawed assumption that Lightfoot had been

improperly denied salary upgrades while still employed by

Union Carbide—a basis for recovery that, as discussed above,

had been rejected.

Finally, Lightfoot’s claim that the district judge should have

recused himself is meritless. Though a judge must “disqual-

ify himself in any proceeding in which his impartiality might

reasonably be questioned,” 28 U.S.C. § 455(a), Lightfoot pre-

sented no basis for disqualification here. The adverse rulings

of law and attempts to encourage settlement provided no rea-

sonable basis for questioning the judge’s impartiality. We see

no abuse of discretion, see, e.g., Diamondstone v. Macaluso,

148 F.3d 113, 120 (2d Cir. 1998); United States v. Conte, 99

F.3d 60, 65 (2d Cir. 1996), in the denial of Lightfoot’s recusal

motion.

We have considered all of Lightfoot’s contentions on this

appeal and have found them to be without merit. The judg-

ment of the district court is affirmed.

FOR THE COURT:

CAROLYN CLARK CAMPBELL, Clerk

by: /s/ LUCILLE CARR _

7a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 CIVIL 6411 (HB)

Filed January 20, 1998

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION; A.W. LUTZ:

W.E. SHACKELFORD,

Defendants.

JUDGMENT

A Jury Trial before the Honorable Harold Baer, United

States District Judge, having begun on January 5, 1998, and

at the conclusion of the trial the jury having returned a verdict

in favor of the plaintiff in the sum of $20,000.00 in com-

pensatory damages, it is,

ORDERED, ADJUDGED AND DECREED: That the plaintiff

have judgment in the sum of $20,000.00 in compensatory

damages as against the defendants.

Dated: New York, New York

January 18, 1998

8a

So Ordered:

/s/) HAROLD BAER, JR.

U.S.D.J.

JAMES M. PARKISON

Clerk of Court

By: /s/ JOHN S. HAGEN

Deputy Clerk

9a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket Nos: 95-9206, 95-9258

Filed March 27, 1997

Issued as Mandate April 17, 1997

At a Stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 27th day of

March, one thousand nine hundred and ninety-seven.

Present: HON. AMALYA L. KEARSE

HON. JOSEPH M. MCLAUGHLIN

Circuit Judges*

RICHARD HALL LIGHTFOOT,

Plaintiff-Appellant-Cross-Appellee,

Se

UNION CARBIDE Corp., A.W. Lutz, President, Industrial

Chemicals Division, W.E. SHACKELFORD, Vice President,

Industrial Chemical Division,

Defendants-Appellees-C ross-Appellants.

° The Honorable J. Daniel Mahoney, who was a member of the

panel, died on October 23, 1996; the appeal is being decided by the

remaining two members of the panel, who are in agreement, See 2d Cir.

R. 0.14(b).

10a

Appeals from United States District Court for the Southern

District of New York.

This cause came on to be heard on the transcript of record

from the Southern District of New York and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ORDERED, ADJUDGED, and DECREED that the order of said

district court be and it hereby is affirmed in part, vacated in

part, and remanded to the said district court for further pro-

ceedings in accordance with the opinion of this court.

For the Court

GEORGE LANGE III, Clerk

by: /s/ BETH J. MEADOR

Beth J. Meador

Administrative Attorney

lla

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1710, 1881—August Term, 1995

(Argued: June 16, 1996 Decided: March 27, 1997)

Docket Nos. 95-9206(L), 95-9258(XAP)

RICHARD HALL LIGHTFOOT,

Plaintiff-Appellant-Cross-Appellee,

—_—V—

UNION CARBIDE CORP., A.W. LUTZ, President,

Industrial Chemicals Division, W.E. SHACKELFORD,

Vice President, Industrial Chemicals Division,

Defendants-Appellees-Cross-Appellants.

Before:

KEARSE and MCLAUGHLIN,

Circuit Judges.*

* — The Honorable J. Daniel Mahoney, who was a member of the panel,

died on October 23, 1996; the appeal is being decided by the remaining

two members of the panel, who are in agreement. See 2d Cir. R. 0.14(b).

12a

Plaintiff appeals from an order of the United States

District Court for the Southern District of New York

granting defendants’ motion for partial summary judg-

ment. Plaintiff also contends that the trial court erred in

denying his claim for attorney’s fees and in granting

defendants’ motion for a remittitur of the jury’s award of

damages. Defendants cross-appeal the court’s denial of

their motion for a new trial on the grounds that the jury’s

verdict was against the weight of the evidence and that

various errors at trial rendered the proceedings funda-

mentally unfair to defendants.

AFFIRMED IN PART, VACATED IN PART AND

REMANDED.

ARTHUR M. WISEHART, New York, New

York (Wisehart & Koch, New York, New

York, of counsel) for Plaintiff-Appellant-

Cross-Appellee.

JOEL E. COHEN, New York, New York (Julie

Y. Chen, Nancy I. Solomon, McDermott,

Will & Emery, New York, New York, of

counsel) for Defendants-Appellees-

Cross-Appellants.

MCLAUGHLIN, Circuit Judge:

Plaintiff appeals from an order entered May 12, 1994

in the United States District Court for the Southern Dis-

trict of New York (Patterson, J.) granting summary judg-

ment to defendants, dismissing all but one of plaintiff’s

13a

claims. Defendants cross-appeal, attacking the verdict as

against the weight of the evidence and the entire trial as

fundamentally unfair.

BACKGROUND

Plaintiff Richard Lightfoot was hired by defendant

Union Carbide in 1959 as a chemical engineer in Car-

bide’s Charleston, West Virginia facility. Over the fol-

lowing thirty-three years Lightfoot advanced fairly

steadily in the company, taking on increasingly chal-

lenging job responsibilities with corresponding increases

in his salary. In 1968 Lightfoot was transferred to Car-

bide’s New York office, where he assumed a product-

management position. In 1973 he was promoted to

Marketing Manager, and six years later he became Busi-

ness Manager in Carbide’s Glycol Ethers group, within

the Industrial Chemicals Division (“ICD”). Lightfoot

was eventually asked to manage the Ethylene Amines

group, which was also part of the ICD, and his Salary

grade was subsequently raised from Grade 16 to Grade

17. Defendant W.E. Shackelford, Vice-President of the

ICD, promoted Lightfoot to Business Director of the

Ethylene Amines group in 1988, but Lightfoot remained

at salary Grade 17 even after the promotion.

According to defendants, Shackelford and Glen Kraft,

another ICD vice-president, became dissatisfied with

Lightfoot’s work soon after his promotion to Business

Director. Shackelford made annual performance

appraisals of Lightfoot between 1987 and 1990 that were

generally positive, but also discussed areas in which

Lightfoot could improve. The 1988 review, for instance,

noted several areas where Lightfoot’s group was behind

l4a

schedule; and in the 1989 review Shackelford wrote that

“(Lightfoot] needs improvement in the area of concep-

tualizing, communicating and causing to happen his

ideas as to where the business should go. . . [;] he also

has real opportunity to improve in the area of interper-

sonal skills.”

In May 1990 Lightfoot was assigned to the position of

Manager of Special Projects for the Ethylene Oxide

Derivatives Department (“EOD”) within ICD. Five

months later he was reassigned as Marketing Manager

for the Surfactants group within EOD. Throughout this

period Lightfoot’s salary was mired at Grade 17.

In the early 1990s, Carbide purchased a subsidiary

chemical business from Rohm and Haas Chemical Com-

pany. In connection with that purchase, Carbide hired

several Rohm and Haas employees who were familiar

with the products and customers of this new business.

Shackelford testified that the ICD’s focus subsequently

diverted from development of new products to maxi-

mizing the potential of the newly acquired product line.

According to defendants, this shift in priorities neces-

sitated a corresponding reduction of marketing staff. In

a meeting (the “forced-ranking” meeting) with Harry

Short, a business director, Robert Cellura, National Sales

Manager of the EOD, and Robert Kisker, Business

Director of Amines, Shackelford asked all the partici-

pants to rate the twelve marketing employees in Light-

foot’s business group on a scale of one to five in several

performance categories. They then ranked the employees

according to their total scores.

Lightfoot and another marketing employee, Michael

Goebel, received the lowest overall scores. Defendants

testified that Lightfoot’s poor ranking was principally

15a

due to his low scores for “reassignment potential,”

reflecting Shackelford’s previous, unsuccessful attempts

to place Lightfoot in various positions outside his group.

On April 27, 1992, Lightfoot was notified that he

would be terminated as part of a reduction-in-force pro-

gram. As severance, he received his full pay and benefits

until February 1993. At the time of the forced-ranking

meeting, Lightfoot was fifty-six years old. Goebel, who

was not terminated, was thirty-nine. Defendants testified

that Goebel was retained despite his equally low score

because his supervisor, Kisker, specifically lobbied on

his behalf.

Lightfoot filed a discrimination charge with the EEOC

on May 14, 1992, and in August 1992 he filed suit in the

United States District Court for the Southern District of

New York against Carbide, Shackelford and A.W. Lutz,

President of the ICD. Lightfoot’s complaint asserted

claims for age discrimination in violation of the Age

Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621 et seq., the New York State Human Rights

Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and

the New York City Human Rights Law (“NYCHRL”),

N.Y.C. Admin. Code § 8-502 (1991). Lightfoot also

included a claim of discriminatory termination in

violation of the Employee Retirement Income Security

Act, 29 U.S.C. § 1001 et seg. (“ERISA”), and state-law

claims for breach of an implied contract of permanent

employment, recovery in quantum meruit or unjust

enrichment of Carbide through products invented by

Lightfoot during his employment by Carbide, and a

claim of tortious interference with contract against

Shackelford individually.

16a

In a letter dated December 3, 1992, while this suit was

pending, Shackelford informed Lightfoot that another

Market Manager had resigned, and he offered Lightfoot

“resumption of the Market Manager position [he] held

prior to its elimination,” on the same terms and condi-

tions as existed at the time of his termination and with

no loss of service credit. Lightfoot never responded

to the letter, and in February 1993 he accepted a

position with CRI, Inc., a consulting firm in the chemi-

cal industry.

In July 1993 defendants sought summary judgment

dismissing Lightfoot’s complaint; Lightfoot filed a

cross-motion for partial summary judgment on his

claims of age discrimination, quantum meruit and unjust

enrichment. In an Order and Opinion dated May 12,

1994, Judge Robert P. Patterson Jr. denied Lightfoot’s

cross-motion and granted defendants partial summary

judgment as to all but the ADEA and NYSHRL claims

of age discrimination. The court also held that Light-

foot’s rejection of Carbide’s December 1992 offer of

reinstatement barred Lightfoot from recovering back pay

or front pay should he prevail in his age discrimination

claims. Lightfoot moved for reargument of the summary

judgment motions and later asked the court to vacate and

amend its order of May 12; the court denied both

motions.

In February 1995 the case was reassigned to Judge

Harold Baer. In a Memorandum Order dated May 31,

1995, Judge Baer ruled that evidence of Lightfoot’s par-

ticipation in the invention of products for Carbide would

not be admissible because the quantum meruit and

unjust-enrichment claims had already been dismissed. In

an oral ruling (never memorialized in writing) before

17a

counsel’s opening statements at trial, the court further

held that Lightfoot’s ciaims for damages arising from

Carbide’s failure to increase his salary grade in 1988

were time barred because Lightfoot failed to file a claim

with the EEOC within 300 days of the alleged discrim-

inatory act. Having determined that Lightfoot was no

longer eligible for any remedy available under the

ADEA, the court concluded that the ADEA claim must

also be dismissed and that plaintiff’s “sole remaining

claim[was one for] compensatory damages under the

New York State Executive Law.” |

Lightfoot’s remaining state-law claim was tried before

a jury in June 1995. The court reminded the jury that the

only claim before it was the state-law claim and that the

only remedy available to Lightfoot was an award of

compensatory damages for mental anguish or humilia-

tion suffered as a result of Carbide’s discriminatory acts.

On June 29, 1995, the jury returned a $750,000 verdict

for the plaintiff.

The court entered judgment in favor of Lightfoot on

July 26, 1995, and on August 5 Lightfoot moved for

attorney’s fees, expenses, and post-judgment interest

pursuant to Rule 54(d) (2) of the Federal Rules of Civil

Procedure and § 626(b) of the ADEA. On August 7

defendants filed a motion for either a complete new trial,

a new trial on the issue of damages only, or a remittitur

of the damage award. In an Order and Opinion dated

October 24, 1995, the district court denied plaintiff’s

motion for fees and expenses but granted his request for

post-judgment interest. The court also denied defen-

dants’ motion for a new trial but reduced the damage

award to $75,000.

18a

Lightfoot subsequently filed a motion seeking dis-

qualification of Judge Baer on grounds of bias and

vacatur of the order of October 24 reducing the jury’s

damage award. The court denied both motions. This

appeal followed.

Lightfoot now claims on appeal that the district court

erred in dismissing his claims (1) for back and front pay;

(2) for Carbide’s failure to pay him adequate compen-

sation when he was promoted several years before his

termination; and (3) for unjust enrichment arising from

Lightfoot’s assignment of invention patents to Carbide.

He also asserts that the district court erroneously denied

his claims for attorney’s fees and that the court’s reduc-

tion of damages from $750,000 to $75,000 denied his

right to a jury trial.

Carbide claims on its cross-appeal that the district

court erred in denying its motion for a new trial on the

grounds that the verdict was against the weight of evi-

dence and other prejudicial errors at trial.

DISCUSSION

A. District Court’s Grant of Partial

Summary Judgment

1. State-law claim of unjust enrichment

Lightfoot contends that during his years of employ-

ment by Carbide he participated in the development of

several “new products and lines” and that he was

promised “additional compensation” for these “inven-

tions.” In his complaint, he sought recovery of Carbide’s

19a

profits from these inventions under state-law principles

of unjust enrichment.

Defendants answer that Lightfoot’s claim is precluded

by a Memorandum of Employee’s Agreement (the

“Agreement”) in which Lightfoot agreed to assign to

Carbide any inventions made in the course of his

employment by Carbide. Agreeing with defendants, the

district court granted defendants’ summary judgment

motion dismissing the unjust-enrichment claim. Light-

foot argues on appeal that summary judgment was inap-

propriate because the terms of the Agreement are

ambiguous, and thus there is a genuine issue of material

fact.

It is true that under the quasi-contractual doctrine of

unjust enrichment, courts may infer the existence of an

implied contract “to prevent one person who has

obtained a benefit from another . . . from unjustly

enriching himself at the other party’s expense.” Chadir-

jian v. Kanian, 506 N.Y.S.2d 880, 882 (App. Div. 1986)

(citations omitted). Such an agreement will not be

implied, however, “where there is a valid express agree-

ment between the parties which explicitly covers the

Same specific subject matter for which the implied

agreement is sought.” Jd. Lightfoot concedes that in

1959 he signed the following Agreement:

In consideration of my employment by Union Car-

bide Corporation. . . ina capacity which makes

available to me confidential information concerning

the technology and trade secrets on which the Cor-

poration’s business depends, I agree. . . [t]o assign

to Union Carbide Corporation all inventions made

by me, alone or jointly with others, in the course of

such employment, relating to the business of the

20a

Corporation or resulting from tasks specifically

assigned to me by the Corporation.

This Agreement does not, of course, bind either

party to any specific period of employment.

Lightfoot signed the identical agreement in 1986.

Plaintiff finds these agreements ambiguous. See Sei-

den Assocs. v. ANC Holdings, 959 F.2d 425, 428 (2d Cir.

1992) (“Where language used is susceptible to differing

interpretations . . . and where there is relevant extrin-

sic evidence of the parties’ actual intent, the meaning of

the words become[s] an issue of fact and summary judg-

ment is inappropriate.”). Contract terms are considered

ambiguous if they are “capable of more than one mean-

ing when viewed objectively by a reasonably intelligent

person who has examined the context of the entire inte-

grated agreement and who is cognizant of the customs,

practices, usages and terminology as generally under-

stood in the particular trade or business.” Nowak v. Iron-

workers Local 6 Pension Fund, 81 F.3d 1182, 1192 (2d

Cir. 1996).

Lightfoot’s cavil with the Agreements is that they do

not contain any provision specifying the effect of an

employee’s termination on any claims he might later

assert. Because contract terms are construed against the

drafter, see Monica Textile Corp. v. §.S. Tana, 952 F.2d

636, 643 (2d Cir. 1991), he argues, silence in the Agree-

ments should not be interpreted as a waiver of his “post-

employment claim of damages for unjust enrichment

arising from. . . wrongful termination as a result of age

discrimination.” Appellant’s Brief at 44.

2la

This argument conflates ambiguity and omission. The

plain language of the Agreements is clear: Lightfoot

agreed to an unconditional assignment of any and all

inventions created by him while working for Carbide.

The unconditional assignment is not rendered ambiguous

by the parties’ failure to anticipate specifically how

Lightfoot’s employment might end. Thus, while Carbide

may indeed have been enriched by Lightfoot’s efforts,

we cannot say that such enrichment was unjust. There is

no genuine issue of material fact on the issue of unjust

enrichment, and the court’s grant of summary judgment

on this issue was appropriate.

2. Claims under ERISA

The district court also granted summary judgment dis-

missing Lightfoot’s claim under ERISA. Section 510 of

ERISA provides that “[i]t shall be unlawful for any per-

son to discharge. . .a participant or beneficiary [of an

employee benefit plan]. . . for the purpose of inter-

fering with the attainment of any right to which such

participant may become entitled under the a

29 U.S.C. § 1140. There is, however, no cause of action

under section 510 where the loss of pension benefits

“was a mere consequence of, but not a motivating factor

behind, a termination of employment.” Dister v. Conti-

nental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1988).

To defeat summary judgment Lightfoot had to adduce

some evidence from which a reasonable jury could con-

clude that Carbide terminated his employment with the

intent to reduce his pension benefits.

Although Lightfoot’s complaint alleged a “pattern or

practice of age discrimination in employment intended

to deprive older. . . employees of opportunity to opti-

22a

mize the benefits available to them,” he has come for-

ward with no specific facts to support this allegation. He

argues on appeal that pre-termination discrimination

against him “must” have resulted from Carbide’s desire

to interfere with his pension benefits because it had that

effect. This is a textbook illustration of the post hoc ergo

propter hoc fallacy. See Dister, 859 F.2d at 1117 n.1

(“[MJere cost savings and proximity to benefits are

[in]sufficient . . . to create a genuine issue of fact

requiring a trial”); Humphreys v. Bellaire Corp., 966

F.2d 1037, 1044 (6th Cir. 1992) (citing Dister). Where

an employee’s ERISA claim is based only on a claim

that the employee has been deprived of the opportunity

to accrue additional benefits through more years of

employment, “a prima facie case requires some addi-

tional evidence suggesting that pension interference

might have been a motivating factor.” Turner v. Scher-

ing-Plough Corp., 901 F.2d 335, 348 (3d Cir. 1990).

Lightfoot has presented no such evidence, and summary

judgment was appropriate.

3. Dismissal of pre-termination claims

Lightfoot insists that he should have received a pay

raise in 1988 when he was promoted to Business Direc-

tor. Under the ADEA, a plaintiff in a “deferral state”

such as New York must first file an administrative

charge with the EEOC within 300 days of the alleged

violation in order to preserve his right to bring a lawsuit.

See 29 U.S.C. §§ 626(d), 633(b). A claim under the

NYSHRL must then be filed within three years of the

alleged discriminatory act. See Murphy v. American

Home Prods. Corp., 448 N.E.2d 86, 92-93 (N.Y. 1983).

23a

To maintain his pay-disparity claim, Lightfoot would

have had to file a charge with the EEOC within 300 days

of his 1988 promotion and also file his complaint in fed-

eral court within three years of that promotion. He

missed both of these deadlines. The district court thus

properly dismissed the claim as time barred under both

the ADEA and the NYSHRL.

Lightfoot attempts to circumnavigate the EEOC filing

deadline by arguing that defendants’ failure to pay him

at an appropriate salary level should be treated as a con-

tinuing violation. We have recognized a continuing-vio-

lation exception to both Title VII and ADEA cases.

Under the exception, a plaintiff who files a timely EEOC

charge about a particular discriminatory act committed

in furtherance of an ongoing policy of discrimination

extends the limitations period for all claims of discrim-

inatory acts committed under that policy even if those

acts, standing alone, would have been barred by the

Statute of limitations. See Lambert v. Genesee Hosp., 10

F.3d 46, 53 (2d Cir. 1993); Cook v. Pan Am. World Air-

ways, 771 F.2d 635, 646 (2d Cir. 1985). The continuing-

violation exception applies where there is evidence of

specific discriminatory practices, such as the repeated

use of discriminatory seniority lists or employment tests.

See Lambert, 10 F.3d at 53; Association Against Dis-

crimination in Employment, Inc. vy. City of Bridgeport,

647 F.2d 256, 274-75 (2d Cir. 1981). Discrete incidents

of discrimination that are unrelated to an identifiable

policy or practice, on the other hand, “will not ordinar-

ily amount to a continuing violation,” unless such inci-

dents are specifically related and are allowed to continue

unremedied for “so long as to amount to a discrimina-

tory policy or practice.” Van Zant v. KLM Royal Dutch

Airlines, 80 F.3d 708, 713 (2d Cir. 1996).

24a

Lightfoot contends that between 1988 and his termi-

nation in 1992 he was repeatedly “demoted,” and his pay

grade remained frozen. He argues that the denial of a

pay-grade increase, the alleged demotions, and his ter-

mination were part of an ongoing policy of “victimizing”

older employees. Although the mere allegation of the

existence of such a policy would be sufficient to with-

stand a challenge for failure to state a claim, something

more is required to avoid summary judgment on the

issue. Summary judgment is designed to pierce the

pleadings to flush out those cases that are predestined to

result in a directed verdict. Lightfoot has presented no

evidence to support his claim of a discriminatory policy

or a connection between his job reassignments and a dis-

criminatory animus.

If Lightfoot was entitled to a pay raise because of the

added responsibilities of his new position, the entitle-

ment arose at the time of his promotion. “Completed

acts such as a termination through discharge or resig-

nation, a job transfer, or discontinuance of a particular

job assignment, are not acts of a ‘continuing’ nature.”

Malarkey v. Texaco, 559 F. Supp. 117, 121 (S.D.N.Y.

1982), aff’d, 704 F.2d 674 (2d Cir. 1983) (per curiam)

(affirming on grounds of failure to state a claim). Light-

foot’s attempt to characterize as a continuing violation

Carbide’s alleged failure to compensate him adequately

is therefore unavailing.

Lightfoot next argues that Carbide’s failure to offer

him adequate compensation should nevertheless be con-

sidered a continuing violation because Lightfoot con-

tinued to feel the effects of the lower pay up to the time

he was terminated and because another manager was

later promoted to the business director position at a

25a

higher salary. This position is clearly without merit

under Malarkey. See 559 F. Supp. at 121. A continuing

violation is not established merely because an employee

continues to feel the effects of a discriminatory act on

the part of the employer. To hold otherwise would render

meaningless the time limitations imposed on discrimi-

nation actions.

4. Back and front pay: the Reinstatement Letter

Lightfoot argues that summary judgment was improp-

erly granted because there are genuine issues of fact as

to whether Lightfoot acted reasonably in declining Car-

bide’s offer of reinstatement in December 1992.

In Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), the

Supreme Court held that when an employer makes an

unconditional offer to reinstate an employee terminated

as a result of discrimination, the employee’s rejection of

that offer forecloses any claim for future front pay and

tolls the continuing accrual of back-pay liability under

Title VII of the Civil Rights Act of 1964. Jd. at 227.

Back pay is tolled as of the date of the employee’s rejec-

tion. Jd. The Court based its holding in Ford on the

Statutory duty of a Title VII complainant to mitigate

damages, see 42 U.S.C. § 2000e-5(g), and the statute’s

underlying legislative purpose to “make the victims of

unlawful discrimination whole by restoring them so far

as possible . . . to a position where they would have

been were it not for the unlawful discrimination.” Jd. at

230 (quoting Albemarle Paper Co. v. Moody, 422 U.S.

405, 421 (1975)) (internal quotation marks omitted).

The NYSHRL substantially tracks Title VII, both in

its requirement that plaintiffs mitigate their damages by

seeking and accepting alternative employment, see Ryan

26a

v. New York State Thruway Auth., 889 F. Supp. 70, 80-81

(N.D.N.Y. 1995) (citations omitted), and in the legis-

lative purpose behind the law, see N.Y. Exec. Law

§ 290(3) (describing purpose of article as, inter alia, “to

eliminate and prevent discrimination in employment”).

The rationale of Ford’s “unconditional offer” rule thus

supports the application of that rule to NYSHRL plain-

tiffs as well as those seeking relief under Title VII.

Lightfoot maintains that he should not have had to

accept the offer to resume his old job as Market Manager

on the same terms and conditions as existed when he was

fired because the salary he had been getting as Market

Manager had been affected by Carbide’s prior discrim-

inatory actions, and he was entitled to a higher salary.

That, however, is not the law. To toll the accrual of

back-pay liability, an employer need only offer rein-

statement to “a job substantially equivalent to the one he

was denied,” Ford, 458 U.S. at 232, not a job equivalent

to the one to which the employee must prove he was

entitled if he is to prevail in his suit. In short, an

employer is not required to “insure the claimant against

the risk that the employer might win at trial.” Id.

Lightfoot also suggests that Carbide’s offer was made

in bad faith as part of a “maneuver to put Lightfoot back

under the power of defendant Shackelford where he

could be subjected to further harassment until a more

propitious scenario for his termination could be

devised.” Appellant’s Brief at 35. Although we are

required, in reviewing a motion for summary judgment,

to view the evidence in the light most favorable to the

nonmoving party, and to draw all inferences in favor of

that party, see Yerdon v. Henry, 91 F.3d 370, 375 (2d Cir.

1996), Lightfoot cannot defeat summary judgment with

27a

his wholly unsupported claims that there was an ulterior

motive behind the offer, see Anderson v. Liberty Lobby,

477 U.S. 242, 248 (1986) (“[A] Party opposing a prop-

erly supported motion for summary judgment may not

rest upon the mere allegations or denials of his pleading,

but. . . must set forth specific facts showing that there

is a genuine issue for trial.” (quotations and citations

omitted)). Lightfoot has failed to set forth anything

concrete to support his position that the unconditional

offer of employment was a ploy.

Lightfoot further contends that his rejection of Car-

bide’s offer was reasonable because (1) he had already

agreed to accept a position with a consulting company

and (2) the stress of returning to work for Carbide (par-

ticularly under Shackelford) would have imperiled his

health and well-being.

It is a matter of law that a commitment to a new

employer does not preserve the employee’s right to

recover back pay for discriminatory termination from a

previous employer. See Ford, 458 U.S. 234-36 (“The

claimant who [rejects an offer of reinstatement in favor

of remaining in a replacement job] does so. . . not

because [the previous job] provides inadequate com-

pensation, but because the value of the replacement job

outweighs the value of the defendant’s job supplemented

by the prospect of full court-ordered compensation.”).

As to Lightfoot’s second point, although Lightfoot

raised the issue of his medical condition in an affidavit

attached to his original motion papers, he did not at that

time present the district court with a physician’s affi-

davit to support his claim. Instead, Lightfoot later

attempted to introduce the affidavit of Dr. Stanley Port-

now in a motion to vacate and amend the court’s order

28a

granting defendants’ motion for summary judgment. The

district court properly declined to consider Dr. Portnow’s

affidavit, as it had been in Lightfoot’s possession for two

years before the court’s order and therefore was not

“newly discovered evidence” that might have justified

reconsideration of the court’s decision.

Finally, Lightfoot contends that under Rule 408 of the

Federal Rules of Evidence the reinstatement letter

should not have been considered. Rule 408 bars the

admission of statements and conduct made “in the course

of compromise negotiations.” See Pierce v. FR. Tripler

& Co., 955 F.2d 820, 826-29 (2d Cir. 1992) (affirming

trial court’s exclusion of evidence of reinstatement offer

made during settlement negotiations). By definition, an

unconditional offer may not require the employee to

abandon or modify his suit, and no such request was

made by defendants. The offer therefore cannot be con-

sidered an offer of settlement or compromise.

In sum, because Lightfoot continued to receive his full

salary and benefits as severance pay through February

1993, he cannot recover back pay for the period between

his termination in April 1992 and his rejection of the

offer of reinstatement in December 1992. Because his

rejection of Carbide’s offer foreclosed his claims to back

pay and front pay after December 1992, the district court

properly granted Carbide summary judgment on all of

Lightfoot’s claims for back and front pay.

5. Claims under the ADEA

There is confusion in the record as to whether the dis-

trict court actually granted defendants summary judg-

ment dismissing Lightfoot’s claim under the ADEA, and,

if it did not, whether it should have. In his order of May

29a

12, 1994, Judge Patterson denied defendants’ motion for

summary judgment as to Lightfoot’s claims under the

ADEA and NYSHRL. In 4 ruling from the bench imme-

diately before opening statements at the trial, Judge Baer

noted that during a conference with counsel on June 20

he had resolved the issue of pre-termination damages

against Lightfoot. Judge Baer concluded that in light of

his decision denying pre-termination damages and Judge

Patterson’s earlier dismissal of claims for back and front

pay, Lightfoot no longer had a viable claim for com-

pensable damages under the ADEA. In the absence of an

available remedy, the court granted defendants summary

judgment dismissing Lightfoot’s ADEA claim.

Lightfoot argues on appeal, however, that the court’s

dismissal of his claim was without effect because the

court failed to enter the order of dismissal in the case

docket. Rule 6(a) of the Civil Rules of the Southern Dis-

trict of New York provides in pertinent part:

(a) A memorandum signed by the judge of the deci-

sion on a motion that does not finally determine all

claims for relief shall constitute the order unless the

memorandum directs the submission or settlement

of an order in more extended form.

The notation in the appropriate docket of such

memorandum, or of an oral decision which does not

direct the submission or settlement of an order in

more extended form, shall constitute the entry of the

order.

Lightfoot argues that because Judge Baer’s order dis-

missing his ADEA claim was not properly entered in the

docket pursuant to Rule 6(a), it is a nullity. Lightfoot

cites no authority for this argument and we are not

inclined to adopt so draconian a rule.

30a

Rule 6(a) is a ministerial rule of procedure, intended

to ensure that case dockets are properly maintained as

useful sources of information for the litigants and court

personnel. Where a court’s oral order is clearly stated

and both parties are present, there is no harm in over-

looking the court’s failure to comply scrupulously with

the rule. On these facts, the harsh application of the rule

urged by Lightfoot is required neither by considerations

of fairness nor the interest of judicial economy.

Lightfoot’s final argument is that even if the court was

correct in its determination that he lacked a viable claim

for damages under the ADEA, his claim should not have

been dismissed; rather, the court could have granted

equitable relief. The ADEA expressly authorizes courts

to grant claimants “such legal or equitable relief as may

be appropriate to effectuate the purposes of [the act],

including without limitation judgments compelling

employment, reinstatement or promotion, or enforcing

the liability for [compensatory damages].” 29 U.S.C.

§ 626(b); see also Whittlesey v. Union Carbide Corp.,

742 F.2d 724 (2d Cir. 1984) (affirming award of front

pay under ADEA).

In his complaint Lightfoot sought only money dam-

ages and “such other and further relief as to this Court

may seem just and proper.” While this general, ritualistic

prayer for additional relief might have entitled Lightfoot

to some form of equitable relief after he had established

his claim under the ADEA, see Fed. R. Civ. P. 54(c), this

boilerplate language is insufficient to defeat summary

judgment where the relief specifically requested by the

plaintiff is unavailable as a matter of law. In this case

Lightfoot cannot say even now what equitable relief

would have been appropriate. His rejection of Carbide’s

3la

offer indicates that reinstatement was not a viable form

of relief. He mentions injunctions in his brief but does

not specify what activity ought to have been enjoined. In

short, his argument amounts to a claim that so long as

some form of relief was conceivable, even if he himself

cannot articulate what that relief might be, his claim

ought not to have been dismissed. We disagree, and thus

conclude that summary judgment was properly granted.

B. Carbide’s Motion for a New Trial

1. Verdict against the weight of the evidence

Defendants protest that the jury’s verdict was contrary

to “the great weight of the evidence.” The denial of a

motion to set aside a verdict as against the weight of the

evidence, however, is not subject to appellate review.

Stonewall Ins. Co. v. Asbestos Claims Management

Corp., 73 F.3d 1178, 1199 (2d Cir. 1995), modified, 85

F.3d 49 (2d Cir. 1996).

The task of reviewing and weighing all of the evi-

dence presented at trial simply imposes too great a bur-

den on the appellate court. Jd. Accordingly, while

defendants were “entitled to argue to the trial judge that

the verdict [was] against the weight of the evidence

. . the denial of that challenge is one of those few rul-

ings that is simply unavailable for appellate review.” Jd.

Similarly, defendants may not obtain review of the

denial of a new trial on the ground that the jury’s dam-

age award was against the weight of the evidence. See

Haywood v. Koehler, 78 F.3d 101 (2d Cir. 1996) (apply-

ing Stonewall to preclude review of denial of a new trial

where jury found defendants liable for use of excessive

force but awarded no damages).

32a

2. Trial errors

Defendants contend that various evidentiary errors at

trial rendered the proceeding fundamentally unfair to

them. They point to the following: (1) allowing one of

Lightfoot’s witnesses, Dr. Cellura, to testify as an expert

that age was a factor in Lightfoot’s termination, that

there was age discrimination at Carbide, and that Car-

bide took a particular interest in young, talented people;

(2) permitting Lightfoot’s counsel to question a witness

about Carbide’s profits and “emissions problems” at Car-

bide plants in West Virginia and Bhopal; and (3) allow-

ing Lightfoot’s counsel to discuss specific dollar figures

in his closing argument on damages.

A motion for a new trial “ ‘ordinarily should not [be

granted] unless [the trial court] is convinced that the jury

has reached a seriously erroneous result or that the ver-

dict is a miscarriage of justice.’ ” Hygh v. Jacobs, 961

F.2d 359, 365 (2d Cir. 1992) (quoting Smith v. Lightning

Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)). A

trial judge’s decision to grant or deny such 2 motion is

reviewed for abuse of discretion. Song v. Ives Labs.,

Inc., 957 F.2d 1041, 1047 (2d Cir. 1992).

(a) Testimony of Dr. Cellura

Dr. Robert P. Cellura, who was employed by Carbide

from 1976 to 1992, testified against Carbide. Cellura

participated in the forced-ranking meeting that resulted

in Lightfoot’s termination. On redirect examination,

Lightfoot’s counsel asked Cellura whether he believed

that any factor other than Lightfoot’s performance influ-

enced the decision to terminate Lightfoot. Cellura tes-

tified that he believed age discrimination had been

involved, pointing to three factors: (1) a decline in the

33a

average age of Lightfoot’s group and of all of Carbide’s

business directors after the reorganization; (2) the deci-

sion to terminate Lightfoot rather than a similarly ranked

younger employee; and (3) a decline in the average age

of Carbide’s highest-paid employees. Defendants con-

tend that this testimony should have been excluded

because it lacked probative value, was not based on Cel-

lura’s personal knowledge, and went to the ultimate

issue in the case.

The Federal Rules of Evidence allow a lay witness to

testify in the form of an opinion, provided such testi-

mony “is limited to those opinions or inferences which

are (a) rationally based on the perception of the witness

and (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.” Fed.

R. Evid. 701. The fact that the lay opinion testimony

bears on the ultimate issue in the case does not render

the testimony inadmissible. Fed. R. Evid. 704(a); see

United States v. Rea, 958 F.2d 1206, 1214-15 (2d Cir.

1992) (“Since neither Rule 70] nor Rule 704(a) limits

the subject matter of lay opinion testimony, there is no

theoretical prohibition against allowing lay witnesses to

give their opinions as to [the ultimate issue in the

case].”). The admissibility of Cellura’s testimony there-

fore depends upon whether it satisfies the rational-basis

and helpfulness requirements of Rule 701.

The rational-basis requirement of Rule 701 “ ‘is the

familiar requirement of first-hand knowledge or obser-

vation.’ ” Rea, 958 F.2d at 1215 (quoting Fed. R. Evid.

701 advisory committee’s note on 1972 Proposed Rules).

When Lightfoot’s counsel initially elicited from Cellura

his opinion that age was a factor in Lightfoot’s termi-

nation, the district court sustained defense counsel’s

objections to the unsupported opinion and told Cellura:

34a

You don’t have any reason for saying that [age

was a factor in Lightfoot’s termination]. You have

given us a conversation, have you? This isn’t gos-

Samer we are working with up here.

What do you have that Mr. Shackelford said to

support that proposition that he did or that he loved

or that he ate or that he smelled?

In response to the court’s admonition, Cellura described

two primary factors upon which he claimed to base his

opinion: the declining average age of various categories

of Carbide employees and Carbide’s retention of young

Goebel, who was ranked similarly to Lightfoot in the

forced-ranking process. Cellura had previously testified

that he was one of five managers working directly under

defendant Shackelford and that he was personally

involved in the forced-ranking procedure that led to the

termination of Lightfoot. Cellura was thus in a position

to have acquired personal knowledge of the facts that

formed the basis of his opinion. The district court com-

mendably sought to ensure that Cellura’s testimony

focused on those objective facts.

Even when a lay opinion is rationally based upon

objective facts, it may still be inadmissible if it does not

help the jury to understand the witness’ testimony or to

decide a fact in issue. Fed. R. Evid. 701(b). This “help-

fulness” requirement “is designed to provide ‘assur-

ance[ ] against the admission of opinions which would

merely tell the jury what result to reach.’ ” Rea, 958 F.2d

at 1215 (quoting Fed. R. Evid. 704 advisory committee’s

note on 1972 Proposed Rules). The challenged testimony

consisted primarily of Cellura’s description of the fac-

tual basis of his opinion that age was a factor in Light-

foot’s termination. Cellura had established a solid

35a

foundation of his intimate involvement with Carbide’s

operation and his opinion was thus based on observa-

tions about Carbide’s decisionmaking process. This tes-

timony was sufficiently helpful to be admissible.

(b) Cross-examination of Shackelford and Kraft

Defendants further contend that the trial court erred in

allowing Lightfoot’s counsel to cross-examine Shack-

elford about Carbide’s earnings between 1989 and 1993,

and to question Glen Kraft about emissions problems at

Carbide’s plants in West Virginia and Bhopal, India.

Defendants regard these questions as an attempt to por-

tray Carbide as a disreputable corporate citizen with

ample financial resources to compensate victims like

Lightfoot. They add that the trial judge’s participation in

the Bhopal questions amounted te tacit approval of that

line of questioning.

As to the questions about Carbide’s income and finan-

cial status, defendants never objected to this testimony.

Having failed to make a timely objection at trial, defen-

dants are limited to “plain error” review of the issue. See

Fed. R. Evid. 103(a) (1); Berner v. British Common-

wealth Pac. Airlines, 346 F.2d 532, 542 (2d Cir. 1965)

(“[C]hallenge [to defendants’ closing argument], raised

for the first time on the motion for new trial, came too

late.”).

There was no error here, plain or otherwise, since Car-

bide’s opening statement brought up Bhopal and made

an issue of Carbide’s financial straits:

Union Carbide beginning in the mid-1980’s was a

company that was having serious financial] prob-

lems. I’m sure most of you know about Bhopal,

36a

which cost the company a lot of money. There was

a takeover attempt that cost the company a lot of

money, and Union Carbide generally had to start

reevaluating its business that resulted in the com-

pany selling off a lot of businesses that they owned;

it resulted in a lot of cost cutting and it resulted in

a lot of reductions in force to a lot of people.

The cross-examination of Shackelford simply explored

the basis for that opening statement. During plaintiff’s

cross-examination of defendants’ witness, Glen Kraft,

the Bhopal tragedy was raised and questions were asked

about poisonous emissions and their cause. The court

interjected with three or four questions before conclud-

ing that the entire subject matter was “totally irrelevant

in my view, but since I was interested, I asked those

questions.”

The court’s comment that the questions were irrele-

vant was sufficient to alert the jury that it should not

take that information into account in deciding the case.

There is no error.

(c) Plaintiff’s closing argument

Plaintiff’s counsel, in summation, asked for a specific

dollar amount as damages. Defendants now urge us to

adopt a per se rule prohibiting counsel from suggesting

a specific sum as damages. We decline to do so.

While at least one circuit has such a rule, see Waldorf

v. Shuta, 896 F.2d 723, 744 (3d Cir. 1990) (“[P]laintiff’s

counsel may [not] request a specific dollar amount for

pain and suffering in his closing remarks.”), we favor a

more flexible approach. It is best left to the discretion of

the trial judge, who may either prohibit counsel from

RRO SERN Ne ae VERS 22 eR BEE SU cas ee areata

37a

mentioning specific figures or impose reasonable limi-

tations, including Cautionary jury instructions. See Con-

sorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1016

(2d Cir. 1995) (encouraging trial judges to prohibit

counsel from suggesting specific monetary awards for

pain and suffering), vacated on other grounds, 116 S. Ct.

2576 (1996); Mileski v. Long Island R.R. Co., 499 F.2d

1169, 1174 (2d Cir. 1974). Here, counsel reviewed the

evidence on damages and asked for an award of

$1,500,000. The court instructed the jury that damages

should be awarded “only upon and only in proportion to

a showing as to the nature, duration and severity of his

condition.”

Although the jury’s award of $750,000, exactly half of

the demand by plaintiff’s counsel, suggests that the

jurors may have been influenced by counsel’s mention of

a particular dollar amount, in context, the closing and

the charge to the jury do not Support defendants’ claim

that the jury was unfairly influenced. Cf. Consorti, 72

F.3d at 1016 (concluding that plaintiff’s counsel’s sug-

gestion of a specific amount of damages did not unfairly

influence jury that awarded precise amount suggested).

(d) The mixed-motive jury instruction

Finally, defendants challenge the court’s inclusion of

a “mixed-motive” instruction to the jury. Age discrimi-

nation suits under the NYSHRL get the same analysis as

claims under Title VII or the ADEA. See Tyler v. Beth-

lehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992).

Under Title VII, a plaintiff is entitled to a mixed-motive

instruction, which shifts to the defendant the burden of

Showing that the plaintiff would have been fired even if

there were no discriminatory motivating factor, see Price

38a

Waterhouse v. Hopkins, 490 U.S. 228, 260 (1989)

(White, J., concurring in the judgment), when the evi-

dence “is sufficient to allow a trier to find both forbid-

den and permissible motives.” Ostrowski v. Atlantic Mut.

Ins. Cos., 968 F.2d 171, 181 (2d Cir. 1992).

In Ostrowski we recognized that a plaintiff may carry

his burden of proving that a forbidden factor was a

motive in his termination through either direct or cir-

cumstantial evidence, see id. at 181-82; but a mixed-

motive instruction is not required unless such evidence

includes “conduct or statements by persons involved in

the decisionmaking process that may be viewed as

directly reflecting the alleged discriminatory attitude.”

Id. at 182 (“[P]urely statistical evidence would not war-

rant [a mixed motive charge]; nor would. . . ‘stray’

remarks in the workplace by persons who are not

involved in the pertinent decisionmaking process.”).

The district court properly found that Lightfoot

produced sufficient evidence to earn a mixed-motive

instruction. Lightfoot testified, for example, that

Shackelford expressed surprise and disbelief when

Lightfoot said he wanted to work until he was seventy

years old. In addition to his opinion that age was a fac-

tor in Lightfoot’s termination, Dr. Cellura testified that

Carbide “has a high potential category where they take

particular interest in young talented people.” While the

quantum of Lightfoot’s evidence may have been less

than that in Ostrowski, it was nevertheless adequate to

support the instruction given by the court.

C. Attorney’s Fees

While Lightfoot’s only claim that survived summary

judgment and went to trial was a state claim under the

ee eee

oe

39a

NYSHRL, Lightfoot asserts that he is entitled to an

award of attorney’s fees as a prevailing plaintiff under

the ADEA. The elements of an age discrimination claim

are essentially the same under the ADEA and the

NYSHRL, although the relief available under the two

Statutes is not identical. A prevailing party in an action

brought under the ADEA is entitled to recover attorney’s

fees, see Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86

(2d Cir. 1983), but the NYSHRL does not provide for an

award of fees, see New York City Bd. of Educ. v. Sears,

443 N.Y.S.2d 23, 25 (App. Div. 1981).

Lightfoot first argues that the ADEA claim was either

never actually dismissed or was improperly dismissed.

As discussed above, see supra Part A.S., this argument

is without merit.

Lightfoot next contends that even if his ADEA claim

was properly dismissed, he is entitled to attorney’s fees

under Dominic v. Consolidated Edison Co., 652 F. Supp.

815 (S.D.N.Y. 1986), aff’d, 822 F.2d 1249 (2d Cir. 1987)

and Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981).

Dominic is clearly inapposite. Defendants in that case

contested the size of the fee award requested by plain-

tiff’s counsel after plaintiff actually prevailed in an

action under the ADEA. Defendants argued that plaintiff

was not entitled to recover fees for all of the time spent

on the case because he had prevailed on only one of five

Claims originally included in his complaint. The court

held that because all five claims alleged age discrimi-

nation, and the legal theories involved in all five were

“inextricably intertwined,” no reduction in the fee award

was required. Lightfoot maintains that his Claims under

the ADEA and NYSHRL were similarly “intertwined,”

and that he is therefore entitled to recover fees for both

40a

claims under Dominic. We disagree. Dominic addresses

not whether a plaintiff is entitled to attorney’s fees, but

how much he may recover once he has established that

he is entitled to recover them.

Lightfoot’s invocation of Milwe is similarly mis-

placed. In Milwe the plaintiff sued various law-

enforcement officials under 42 U.S.C. § 1983 and state

tort law. Her complaint alleged that one officer had

knocked her to the ground and broken her nose while the

others watched, and that several others had violated her

constitutional rights by filing a false affidavit to procure

her arrest several days after the original incident. A jury

found one officer liable for the assault under both § 1983

and state tort law and awarded damages of $1 and

$1,320 respectively on those claims. The jury also found

for plaintiff on her remaining constitutional claim and

state-law claim for false arrest. The district court denied

plaintiff’s motion for attorney’s fees, and the plaintiff

appealed.

On appeal the defendants in Milwe argued that a fee

award would be inappropriate because the jury had

awarded substantial damages only on the pendent state-

law assault claim, and not on the constitutional claim

arising from the same incident. We rejected this argu-

ment, holding that “attorney’s fees are available in cases

in which the plaintiff prevails on a wholly statutory, non-

civil rights claim pendent to a substantial constitutional

claim.” Milwe, 653 F.2d at 84. The Milwe panel reasoned

that such a fee award “furthers the Congressional goal of

encouraging suits to vindicate constitutional rights with-

out undermining the longstanding judicial policy of

avoiding unnecessary constitutional decisions.” Jd. (quo-

tations omitted). Lightfoot contends that Milwe estab-

4la

lished a “substantiality test” under which a plaintiff is

entitled to attorney’s fees when he prevails on a state-

law claim arising out of a common nucleus of operative

fact with a federal claim pursuant to which attorney’s

fees would be available. We decline to adopt so broad an

interpretation of Milwe.

The holding in Milwe was expressly limited to plain-

tiffs who prevail on a Statutory claim pendent to a sub-

stantial constitutional claim. Lightfoot’s claim under the

ADEA was properly dismissed prior to trial, and his

action under the NYSHRL was therefore no longer pen-

dent to anything federal when he prevailed at trial. In

addition, the underlying rationale of Milwe was based

largely on the policy concern of avoiding unnecessary

constitutional decisions—a policy not implicated where

the asserted basis for a fee award is merely a federal

Statute such as the ADEA. Finally, we see no reason to

reward those plaintiffs who supplement their valid

claims under the NYSHRL with meritless claims under

the ADEA by allowing them to circumvent the state-law

rule that attorney’s fees are not available under the

NYSHRL. Lightfoot is thus not entitled to an award of

attorney's fees as a prevailing plaintiff on this basis.

D. Remittitur of the Damages Award

After a full trial on liability and damages, the jury

returned a verdict for Lightfoot and awarded him

$750,000 in compensatory damages under the NYSHRL.

Defendants moved for a remittitur of the damages award,

or, in the alternative, a partial new trial on damages. The

district court granted defendants’ motion for remittitur,

outrightly reducing the jury’s award to $75,000. Light-

foot argues that because determination of an award of

. 42a

damages lies within the province of the jury, a court’s

outright reduction of a jury’s award without offering the

plaintiff the option of a new trial on damages denies the

plaintiff his constitutional right to a jury trial. Plaintiff

is right.

Where a jury has awarded damages in an amount con-

sidered excessive by the trial court, “[i]t is not among

the powers of the. . . court. . . simply to reduce the

damages without offering the prevailing party the option

of a new trial.” Tingley Sys., Inc. v. Norse Sys., Inc., 49

F.3d 93, 96 (2d Cir. 1995) (reviewing court’s grant of

remittitur of damages awarded under Connecticut Unfair

Trade Practices Act); Phelan v. Local 305 of the United

Ass'n of Journeymen and Apprentices of the Plumbing &

Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir. 1992).

This rule derives from the trial-by-jury protections of the

Seventh Amendment. Cf. Kennon v. Gilmer, 131 U.S.

22, 29 (1889). A trial court may, however, condition

denial of a defendant’s motion for a new trial on the

plaintiff’s stipulation to a remittitur in a stated amount.

See Tingley, 49 F.3d at 96; 11 Wright, Miller & Kane,

Federal Practice and Procedure § 2815 (1995).

Accordingly, the district court erred in granting defen-

dants’ motion for a remittitur without offering Lightfoot

the option of a new trial on damages. We must remand to

allow Lightfoot the opportunity to exercise this option.

The Supreme Court’s recent decision in Gasperini v.

Center for Humanities, 116 S. Ct. 2211, 2218 (1996) sets

forth the applicable standards to determine excessive-

ness and the appropriateness of remittitur under New

York law.

AOD, ee Ned tS +) Rec co Wharton

43a

CONCLUSION

This matter is remanded to the district court for recon-

sideration of the court’s grant of a remittitur of damages.

We have considered all of the remaining claims raised by

plaintiff and defendants and, finding them to be without

merit, we affirm in other respects the judgment of the

district court.

44a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411 (HB)

Filed July 24, 1995

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICALS

DIVISION,

Defendants.

CIVIL JUDGMENT

A Jury Trial before the Honorable Harold Baer, Jr., U.S.D_J.

having begun on June 23, 1995, and at the conclusion of the

trial the jury having returned a verdict in favor of plaintiff in

the sum of $750,000.00, it is

ORDERED, ADJUDGED AND DECREED: That the plaintiff

have judgment in the sum of $750,000.00 as against the

defendants.

45a

SO ORDERED

/s/ HAROLD BAER, JR.

U.S.D.J.

Dated: New York, New York

; July 11, 1995

Deputy Clerk

46a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411 (HB)

RICHARD HALL LIGHTFOOT,

Plaintiff,

—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION, and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICALS

DIVISION,

Defendants.

Before:

HON. HAROLD BAER, JR.,

District Judge

APPEARANCES

WISEHART & KOCH

Attorneys for Plaintiff

ARTHUR M. WISEHART

MICHAEL H. PRINCE

McCDERMOTT, WILL & EMERY

Attorneys for Defendants

JOEL E. COHEN

NANCY I. SOLOMON

47a

(In open court, jury present)

(3:00 P.M.)

THE Court: Sorry to keep you for the period of time that

you had in the jury room following your note to me, which I

have marked as Court Exhibit 10A which reads, “We have

reached a verdict,” but we were in the midst of summations in

another case. So it was hard to do anything about it until it

was over. But we now have you and your note, and my clerk

will take the verdict.

THE CLERK: Would the foreperson please rise.

Has the jury agreed upon a verdict?

THE FOREPERSON: Yes, we have.

THE CLERK: To question 1, was age discrimination a moti-

vating factor in the defendants’ decision to terminate the

plaintiff?

THE FOREPERSON: Answer yes.

THE CLERK: To question 2, would the defendants have

made the same decision to terminate plaintiff even if it had

not taken the plaintiff’s age into account?

THE FOREPERSON: Answer no.

THE CLERK: To question 3, specify the amount of com-

pensatory damages to be awarded to the plaintiff.

THE FOREPERSON: Amount $750,000.

THE Court: Well, thank you, ladies and gentlemen.

Do either of you want the jury polled? Hearing nothing,

I will simply thank you for your efforts and indeed tell you

that I think this system, and I am sure you share the view,

really can’t work without people like yourselves.

I’m sure counsel join me in thanking you for the time that

you took out of your busy lives to be with us, think about this

case pretty exclusively for a few days and then deliberate and

come to a verdict, and you are discharged.

(Jury dismissed)

THE Court: If there are any motions, I would ask that they

be made on papers and in accordance with the rules of Federal

Rules of Civil Procedure, and I thank you all for being here.

MR. WISEHART: Thank you, your Honor.

(Trial concluded)

49a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411 (HB)

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CorRP., et al.,

Defendants.

OPINION AND ORDER

HAROLD BAER, JR., District Judge:

Plaintiff Richard Lightfoot moves for an Order of recusal,

pursuant to 28 U.S.C. § 455. For the reasons discussed below,

the motion is DENIED.

BACKGROUND

Plaintiff brought this action alleging discriminatory ter-

mination by his employer and his supervisors. Following a

jury trial, the jury found for plaintiff and awarded him

$750,000 in damages. I remitted the damages to $75,000 and

both parties appealed. The Second Circuit affirmed in part,

vacated in part and vacated to this Court for further

proceedings. Lightfoot v. Union Carbide Corp., 110 F.3d 898

50a

(2d Cir. 1997). Specifically, the Circuit held that my remit-

titur order was improper in that it did not afford plaintiff the

option of a new trial on damages. /d. at 914-15.

Following the remand, the parties were called in for a pre-

trial conference on May 9, 1997. No court reporter was pre-

sent. At the conference, I urged the parties to settle the matter.

When defendant indicated it would be unwilling to settle for

much more than $75,000 plus litigation costs, plaintiff indi-

cated this was insufficient. In response to this comment of

plaintiff’s, I suggested that plaintiff should bear in mind my

prior remittitur in assessing the wisdom of trying the case

again. I noted my view that, based on the evidence presented

at the first trial, plaintiff did not suffer more than $75,000 in

damages. This motion followed.

DISCUSSION

The applicable standards regarding recusal require that

“Tajny justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartial-

ity might reasonably be questioned.” 28 U.S.C. § 455(a). Fur-

thermore, a judge “shall also disqualify himself. . . [w]here

he has a personal bias or prejudice concerning a party, or per-

sonal knowledge of disputed evidentiary facts concerning the

proceeding.” 28 U.S.C. § 455(b)(1) (emphasis added). Plain-

tiff is correct in pointing out that the standard set forth in

Section 455 does not require actual bias but merely the rea-

sonable appearance of bias, see United States v Helmsley, 760

F. Supp. 338, 341 (S.D.N.Y. 1991), aff’d, 963 F.2d 1322 (2d

Cir. 1992), and constitutes a significant change in recusal law,

see United States v. Pepper & Potter, Inc., 677 F. Supp. 123,

125 (E.D.N.Y. 1988). Nevertheless, recusal is inappropriate

here.

Courts have long recognized that “[a] judge is as much

obliged not to recuse himself when it is not called for as he is

obliged to when it is.” In Re Drexel Burnham Lambert, Inc.,

861 F.2d 1307, 1312 (2d Cir. 1988). Furthermore, dissatis-

Sla

faction with a legal ruling—such as my decision to grant a

remittitur—is an insufficient basis for recusal, for it would in

effect allow “judge shopping” by plaintiffs. As the Second

Circuit has recognized, “the trial judge must carefully weigh

the policy of promoting public confidence in the judiciary

against the possibility that those questioning his impartiality

might be seeking to avoid the adverse consequences of his

presiding over their case.” Jd.

Principally, plaintiff argues that my comments at the pre-

trial conference! to the effect that plaintiff should keep in

mind my view of the evidence constitute an expression of bias

necessitating recusal. Even under the more relaxed require-

ments of Section 455, recusal here would be inappropriate.

My comments; merely reiterated my view (as expressed in the

remittitur order) that, based on the evidence presented at

plaintiff’s first trial, the damages were insufficient to sustain

a $750,000 verdict (or any verdict in excess of $75,000). Such

comments do not require recusal for two reasons.

First, “opinions formed by the judge on the basis of facts

introduced. . . in the course of the current proceedings, or

of prior proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism

or antagonism that would make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis

added). Thus, “it is clear that the following types of evidence

will not support a recusal motion: judicial rulings based on

evidence presented at trial; [or] the court’s observation

regarding the legal sufficiency of evidence presented at trial.”

Bin-Wahad v. Coughlin, 853 F. Supp. 680, 686 (S.D.N.Y.

1994) (citations omitted). As my comments at the pre-trial

conference were based on my assessment of the damages evi-

dence presented at trial, they do not support a recusal motion.

Second, it is likely that plaintiff’s damages evidence at any,

retrial will differ from the evidence offered at the first trial.

This is almost inevitable, even if the Same witnesses are

; It should be noted that these comments were made in an attempt

to encourage the parties to settle the case.

52a

called. While I believe the evidence presented at the first trial

did not establish damages of $750,000, such a conclusion

does not foreclose the possibility that the damages presented

at a retrial will in fact support a jury verdict in excess of

$75,000. Such an assessment simply cannot be made at this

time and my comments were not intended to convey any pre-

judgment as to the sufficiency of the evidence plaintiff may

present at the retrial. Furthermore, I do not believe that a rea-

sonable person would construe my comments as indicating

any such prejudgment on my part.

Finally, plaintiff points to my reference to plaintiffs appel-

late brief as a lot of “silliness” or “nonsense” as further proof

of my impartiality. Such a contention also fails. First, as

defendants point out, I referred to both parties’ briefs as a lot

of silliness and apparently my view was vindicated (albeit in

- more decorous language) by the Court of Appeals, which

rejected the vast majority of both parties’ assignments of

error. Second, my views regarding plaintiff’s counsel’s legal

strategy—whatever they may be—do not constitute grounds

for recusal. “[C]ourts have drawn a sharp distinction between

alleged hostility between judge and party and alleged hostility

between judge and attorney. Except in extreme and rare cases.

the appearance of hostility on the part of the judge toward an

attorney has been ruled an insufficient basis for recusal.”

Helmsley, 760 F. Supp at 342 (citation omitted). Certainly, my

comments with respect to the merit of plaintiff s appellate

brief reflect only my views of his attorney, if anything, and

not my views of plaintiff himself.? Accordingly, such com-

ments do act support recusal.

. While on the subject of plaintiff’s attorney’s conduct, the Court

notes that plaintiffs counsel, Arthur Wisehart, has a peculiar habit of fil-

ing recusal motions. Not only has he previously filed a recusal motion in

this case (which was denied), but defendants identify at least four other

cases in which he has filed such motions, often based on evidentiary or

other rules of the judge in question. On at least one occasion, the judge

in question chastised Mr. Wisehart and noted that “[t]he material that Mr.

Wisehart has provided on the recusal subject is so scurrilous and so base-

less and so ridiculous that I cannot even begin to be fair to any parties in

this case after reading this.” Lipin v. American Nat’l Red Cross, No. 1997

53a

CONCLUSION

For the reasons discussed above, Plaintiff’s motion is

DENIED. The case is added to the January 1998 trailing trial

calendar. The parties are instructed to exchange expert

reports, if any, on or before December 1, 1997.

SO ORDERED

Dated: August 28, 1998

New York, New York

/s/ HAROLD BAER, Jr.

U.S.D.J.

WL 279912 (2d Cir. May 22, 1997) at *5 n.1 (quoting New York State

Supreme Court Justice Moskowitz). While the same is not true of the

instant recusal motion, Mr. Wisehart’s Practice calls into question either

his good faith and adherence to Rule 11 in filing such motions or his

grasp of the applicable legal issues. Recusal is a drastic remedy, not to

be taken lightly. Mr. Wisehart’s Practice of filing recusal motions when

he disagrees with a judge’s rulings undermines the gravity with which

such motions should be created and impugns judicial integrity by imply-

ing rampant judicial bias. I urge Mr. Wisehart take seriously my and other

judge’s admonitions in this regard. That said, I emphasize that my deci-

sion here is based on the law, as discussed above, not on my views as to

Mr. Wisehart’s probity or wisdom and not on my predilections about

whether or not I would choose to retry this case if I had the choice.

8 ee TS ee ae eee

54a

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411 (HB)

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICALS

DIVISION,

Defendants.

APPEARANCES

Arthur Wisehart, Wisehart & Koch,

25 West 43rd Street,

New York, New York 10036-7498

For Plaintiff.

Joel E. Cohen and Nancy I. Solomon

McDermott, Will & Emery,

121 Avenue of the Americas,

New York, New York 10036-8701

For Defendants.

5Sa

ORDER AND OPINION

HAROLD BAER, JR., United States District Judge.

Plaintiff Richard Lightfoot commenced this action against

his former employer, Union Carbide, and Union Carbide exec-

utives A.W. Lutz and W.E. Shackelford (collectively, the

“defendants”) alleging, inter alia, wrongful termination based

On age discrimination under the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. § 621 er

seq. (“ADEA”), and under the New York State Executive Law

5 296 (McKinney 1993) (“NYSHRL”). After trial, the jury

found in favor of Lightfoot and awarded him $750,000 in

compensatory damages under the NYSHRL.

Lightfoot now moves for attorney’s fees under section

626(b) of ADEA. The defendants move for a new trial, pur-

suant to Rule 59(a) of the Federal Rules of Civil Procedure,

and in the alternative, for a new trial on the issue of damages,

or for a remittitur.

For the reasons that follow, Lightfoot’s motion for attor-

neys’ fees is denied; the defendants’ motion for a new trial is

denied; the defendants’ motion for a new trial on the issue of

damages is denied; and the defendants’ motion for remittitur

is granted in accordance with this opinion.

I. Background

Traced to its origins, Lightfoot’s suit alleged a panoply of

claims against the defendants including breach of contract,

quantum meruit, unjust enrichment, tortious interference with

contract, as well as age discrimination under ADEA and the

NYSHRL. Judge Patterson dismissed all of Lightfoot’s claims

except for those brought under ADEA and the NYSHRL.

See Order and Opinion, 92 Civ. 6411 (RPP), May 12, 1994.

Regarding Lightfoot’s discrimination claims, Judge Patterson

held that

56a

Defendants’ motion for Summary judgment on plaintiff’s

ADEA and New York State Human Rights claims is

denied . . . Although plaintiff may pursue his federal

and New York State age discrimination claims he cannot

recover damages for lost wages because he continued to

receive full pay as a severance benefit after he was

offered his job back. Summary Judgment is granted in

the defendants’ favor in all causes of actions as to Car-

bide’s liability for backpay.

Id. at 8-12. In a subsequent opinion, Judge Patterson further

ruled that Lightfoot was not entitled to damages for front pay.

See Order and Opinion, 92 Civ. 6411 (RPP), July 28, 1993,

at p. 3.

Because Judge Patterson’s rulings stripped Lightfoot of any

compensable damages under ADEA, I dismissed that claim,

over the objection of the plaintiff. See Trial Tr. at pp. 2- 5.

Accordingly, the only claim Lightfoot presented to the jury

was age discrimination under the NYSHRL. It was that claim

on which the jury an June 29, 1995 awarded Lightfoot

$750,000 in compensatory damages.

II. Discussion

A. Lightfoot’s Motion For Attorneys’ Fees and

Post-judgment Interest

1. Attorneys’ Fees

Lightfoot argues that in his view, the ADEA claim was

never dismissed and he is entitled to attorneys, fees as a pre-

vailing party under that statute. 28 U.S.C. § 626(b).' Although

Lightfoot correctly notes that Judge Patterson did not dismiss

his ADEA claim, he overlooks the fact that I did. See Trial Tr.

at pp. 2-5.

Because attorneys’ fees are not recoverable under the NYSHRL,

Lightfoot is entitled to attorneys’ fees oniy if his ADEA claim was alive

and well at the trial.

S7a

Lightfoot’s more substantia] argument, although equally

unavailing, is that I improperly dismissed his ADEA claim.

Because Judge Patterson’s prior rulings effectively deprived

Lightfoot of any relief under ADEA, see supra, pp. 2-3, I dis-

missed that claim just before the commencement of trial. See

supra, p. 3. In McLaughlin v. State of New York, Governor’s

Office of Employee Relations, 784 F. Supp. 961 (N.D.N.Y.

1992), a case that addresses the status of a Title VII claim

without a remedy, the plaintiff sued her employer for sexual

harassment under Title VII. The employer moved for sum-

mary judgment, arguing that because the plaintiff was not

fired or demoted, which might have entitled her to backpay,

she had no viable remedy and her claims should be dismissed.

In agreeing with the employer’s reasoning, the court stated

that “[t]he ‘case or controversy’ requirement of Article III of

the United States Constitution dictates that a plaintiff cannot

maintain a suit in which no relief can be granted.” /d., at 973

(citation omitted) The court further held that

a threshold to recovery of attorneys’ fees is that the

plaintiff must prevail in the underlying Title VII action.

If a plaintiff does not prevail in the underlying action,

then she cannot recover attorney’s fees under Title VII.

The effect of the “prevailing party” rule is that plain-

tiff cannot rely upon the possible availability of attor-

ney’s fees as a remedy that would allow her to withstand

defendants motion for summary judgment. A suit cannot

be maintained for the sole purpose of recovering attor-

ney's fees.

Id. at 980 (emphasis added) (citations Omitted).

Similarly, in another case where no viable remedy was

available to a Title VII plaintiff, the Seventh Circuit dis-

missed the plaintiff’s complaint for failure to state a claim.

Hale v. Marsh, 808 F.2d 616 (7th Cir. 1986). The court held

that “[a] Title VII suit [cannot] be maintained for the sole

purpose of obtaining an attorney’s fee for the plaintiff’s

lawyer.” Jd. at 620 (citation omitted).

58a

Lightfoot further claims that, notwithstanding McLaughlin

and Hale, attorneys’ fees are nevertheless appropriate in

instances where a plaintiff prevails on a state claim pendent

to an unsuccessful civil rights claim. Milwe v. Cavuoto, 653

F.2d 80, 84 (2d. Cir. 1981). He argues that this action presents

just the circumstances that the Milwe court contemplated.

I disagree. The Milwe court limited its holding to situations

where “ ‘the plaintiff prevails on a wholly statutory, non-civil

rights claims pendent to a substantial constitutional claim.

. . .” Id. (emphasis added) (quoting Maher v. Gagne, 448

U.S. 122 (1980). As I dismissed Lightfoot’s ADEA claim

before the commencement of trial, he lacked the requisite

“substantial constitutional claim.”

2. Post-judgment Interest

Lightfoot seeks to recover post-judgment interest from the

date the verdict was rendered to the date of entry of judgment,

pursuant to C.P.L.R. § 5002 (McKinney 1992), and from the

date of entry of judgment forward, pursuant to 28 U.S.C.

§ 1961(a) and C.P.L.R. § 5003 (McKinney 1992).

Federal courts agree that post-judgment interest on a money

judgment recovered in federal court is governed by 28 U.S.C.

§ 1961(a). See, e.g., Fuchs v. Lifetime Doors, Inc., 939 F.2d

1275, 1280 (Sth Cir. 1991); Travelers Ins. Co. v. Transport

Ins. Co., 846 F.2d 1048, 1053-54 (7th Cir. 1988); Goldman v.

Burch, 778 F. Supp. 781 790 (S.D.N.Y. 1991).

The language of Section 1961(a) seems clear: “[i]nterest

shall be allowed on any money judgment in a civil case recov-

- ered in a district court. . . . Such interest shall be calculated

from the date of the entry of the judgment. . . . 28 U.S.C.

§ 1961(a) (emphasis added). Accordingly, Lightfoot is entitled

to post-judgment interest from the date judgment was entered.

B. Union Carbide’s Motions

The defendants move for a new trial on the grounds that the

jury’s verdict is contrary to the weight of the evidence; the

59a

admission of improper evidence and prejudicial comments

made by Lightfoot’s attorney, Arthur Wisehart, tainted the

jury; and the jury’s award is excessive and unreasonable. In

the alternative, the defendants argue that they are entitled to

a new-trial an the issue of damages, or to a remittitur.

1. Motion For a New Trial

a. Jury verdicts that are contrary to the weight

of the evidence

A motion for a new trial may be granted when the district

court feels that “ ‘the jury has reached a seriously erroneous

result or ... the verdict is a miscarriage of justice

- + +» " Song v. Ives Laboratories, Inc, 957 F.2d 1041, 1047

(2d Cir. 1992) (citations omitted). In this case, although in my

view the evidence presented by the plaintiff on his claim was

at best equivocal. I cannot characterize the result as “seri-

ously erroneous.”

b. Evidence that is improperly admitted

Where evidence that prejudices the rights of a party has

been improperly admitted, a court may order a new trial. See,

e.g., Logan v. Dayton Hudson Corp., 865 F.2d 789 (6th Cir.

1989). Here, the defendants argue that the jury was tainted by

testimony that I erroneously admitted and by improper com-

ments made by Mr. Wisehart in the jury’s presence. Even

accepting the defendants position regarding the admissibility

of the evidence at issue and the propriety of Mr. Wisehart’s

comments, they do not amount to prejudice so extreme as to

warrant a new trial.

2. Defendants’ Motion For a New Trial on

Damages or a Remittitur

The defendants’ arguments in favor of a new trial on the

issue of damages is unnecessary in light of the law with

respect to excessive verdicts and remittitures. Based on the

law, a remittitur is appropriate. Looking at New York law, the

60a

standard spelled out in CPLR § 5501(c) is pretty well estab-

lished as applicable to trial and appellate courts and reads in

pertinent part that “an award is excessive if it deviates mate-

rially from what would be reasonable compensation.” See

Prunty v. YMCA of Lockport Inc., 206 A.D.2d 911, 616

N.Y.S.2d 117 (4th Dep’t 1994). In analyzing the issue in

Prunty, the Fourth Department wrote “at least two of the

Departments of the Appellate Division have ruled that the

trial court may overturn a jury’s award of damages in a neg-

ligence action where it deviates materially from what would

be reasonable compensation. . . . We now adopt the same

rule.” Prunty, 206 A.D.2d at 911, 616 N.Y.S.2d at 118.

At least one Federal District Court has reached the same

conclusion. See Travellers Companies v. New York General

Mechanical Inc., 1994 WL 584926 (W.D.N.Y. Oct. 24, 1994).

The issue then is how to determine excessiveness. In a recent

decision, Judge Leval concludes that the court must take into

consideration verdicts in similar cases as one way to deter-

mine whether there is a material deviation:

[iJn the face of so substantial a pattern of New York

judgments communicating that New York courts find

excessiveness in such cases at far lower levels, we

believe it was error for the district court to conclude that

the jury’s $12 million award was within the range

accepted by New York law.

Consorti v. Armstrong World Industries, 64 Fed.3d 781,

____ (2nd Cir. 1995). After a review of New York State Human

Rights law verdicts dealing with age discrimination and other

wrongdoing covered by the law, there seems little doubt that

the verdict here was a material deviation from the norm. A

number of New York courts have remitted damage awards in

discrimination cases. See, e.g., Quality Care, Inc. v. Rosa, 599

N.Y.S.2d 65, 66 (2d Dep’t 1993) ($10,000 award for com-

pensatory damages in age discrimination case remitted to

$5,000); Pioneer Grour v. State Division of Human Rights,

572 N.Y.S.2d 207, 208 (4th Dep’t 1991) ($10,000 award for

compensatory damages awarded to plaintiff who was unlaw-

6la

fully discriminated against on basis of conviction of a crime

remitted to $5,000); Cosmos Forms, Ltd. v. State Division of

Human Rights, 541 N.Y.S.2d 50, 51 (2d Dep’t 1989) ($35,000

award for compensatory damages for racial discrimination

remitted to $5,000).

Similarly, the First Circuit, Sitting in review of a Pueiio

Rican District Court’s reduction of plaintiff’s jury award for

the pain and suffering incurred as a result of job loss from

$150,000 to $37,500 found that the reduction was not unjus-

tified. See Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724

(Ist Cir. 1994).

In another recent Federal case, Binder v. Long Island Light-

ing Company, 847 F. Supp 1007 (E.D.N.Y. 1994), a $497,738

verdict for pain and suffering was reduced to $5,000. In an

even more recent Title VII lawsuit, Judge Chin upheld an

award on a far more unfortunate fact pattern than in the case

at bar, that included $100,000 for pain and suffering. Marfia

v. Ozman, 1995 WL 584677, *7 (S.D.N.Y. Sept. 15, 1995). In

that case, the plaintiff was so distressed by his wrongful ter-

mination that he attempted suicide and was fortuitously

stopped by his fifteen year old son. The plaintiff was then

taken to a hospital where he was placed on suicide watch for

two weeks. Nothing as compelling came to light here.

In the instant action, Lightfoot’s compensatory damage ver-

dict wax a material deviation not only from similar cases but

also from the proof adduced at trial. Taken together with

Judge Leval’s decision in Consorti, the verdict must be

reduced.

Plaintiff’s damages are remitted from $750,000 to $75,000.

III. Conclusion

For the reasons set forth above, Lightfoot’s motion for

attorneys’ fees is denied; the defendants’ motion for a new

trial is denied; the defendants’ motion for a new trial on the

issue of damages is denied; and the defendants’ motion to

62a

remit damages is granted in accordance with this Order and

Opinion.

SO ORDERED.

New York, New York

Dated: October 24, 1995

/s/ HAROLD BAER, JR.

Harold Baer, Jr.

United States District Judge

63a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICALS

DIVISION,

Defendants.

Before:

HON. HAROLD BAER, JR.,

District Judge.

64a

APPEARANCES

WISEHART & KOCH

Attorneys for Plaintiff

ARTHUR M. WISEHART

MICHAEL H. PRINCE

McCDERMOTT, WILL & EMERY

Attorneys for Defendants

JOEL E. COHEN

NANCY I. SOLOMON

I don’t expect that this case is going to produce any media

attention, certainly not in the immediate future, but once

again, the role of jurors is simply to assess the evidence, and

the evidence is what you hear here, both testimony and

exhibits and any stipulations that may be entered into-

between the parties and that’s it.

So if there is anything in the newspaper or on the radio or

television, just put it down and turn it off, depending on what

it is.

See you on Friday morning at 9:30. Please be prompt so

that we can start on time. Have a good evening and a good

day, and we will see you Friday.

(Jury excused)

THE CourtT: While I have a court reporter, maybe it’s a

good time to read into the record what we had been talking

about before we started.

I think this resolves all the questions that we have in front

of us.

Defendants Union Carbide Corporation, A.W. Lutz and

W.E. Shackelford, collectively the defendants, moved in lim-

ine to exclude the admission into evidence of certain testi-

mony and exhibits that plaintiff, Richard Hall Lightfoot

intends to offer into evidence at trial.

65a

Similarly, Lightfoot moved in limine to exclude certain

exhibits that defendants intended to offer.

The court ruled on these motions in its memorandum order,

dated May 31, 1995, but reserved decision on the admissi-

bility of evidence relating to pretermination damages and

requested the parties to submit letter briefs addressing this

issue.

The court further requested an explanation of the relevance

of Plaintiff’s Exhibits 29, 30 and 110 beyond their application

to pretermination damages.

Additionally, the defendant requested of the Court by let-

ter, dated June 7, 1995, to preclude Lightfoot from one,

allowing Andrew Gluck to testify as to loss of earnings; and

two, admitting plaintiff’s special interrogatories at trial.

I guess those really are what I mean as the verdict sheet.

After reviewing the parties letter briefs as well as the prior

rulings of Judge Patterson, the Court in an effort to clarify

and/or maybe better said restate its May 31 ruling, initially

notes that Mr. Lightfoot is not entitled to damages for back

pay order, an opinion dated May 12, ’94 by Judge Patterson at

page 12 reads in pertinent part as follows:

Summary judgment is granted in the defendant's favor in

all causes of action as to Carbide’s liability for back pay. Nor

are they entitled to damages for front pay.”

Again, Judge Patterson’s opinion of July 28th, ’94 at page

3, which reads in part, “Plaintiff waived his right to front pay

when he declined Carbide’s offer of reinstatement.”

The Court, in consequence, concludes:

One, Lightfoot’s pretermination discrimination damages

Claim is time-barred.

Lightfoot alleges that when he was promoted to business

director in ’88, he remained at grade 17 while Robert Kisker,

already a business director at the time, was at grade 19. Con-

sequently, any purported pay disparity claim arising from

Lightfoot’s grade 17 status after his ’88 promotion conclude

in 88.

66a

Thus, because Lightfoot filed its EEOC charge and com-

plaint in 1992, this claim is untimely, see 29 U.S.C., Section

626(d) (Claim for age discrimination is untimely if plaintiff

files a charge with the EEOC more than 300 days after the

alleged unlawful conduct occurred.) Murphy versus American

Home Products Corp., 461 N.Y.S. 2d 232, 239. Three years

statute of limitations for age discrimination claims is appli-

cable. The Court acts under the New York State Human

Rights Law. :

I should note parenthetically in the robing room we dis-

cussed looking at this one more time, and we will.

Two, defendant's motion to preclude Lightfoot from offer-

ing into evidence is it Plaintiff’s Exhibit’s 29 and 30, docu-

ments prepared by Lightfoot containing salary comparisons,

and Plaintiff’s Exhibit 110 a document prepared by Lightfoot

comparing his salary to Robert Kisker is denied.

Three, the court reserves decision on defendant’s request to

preclude Lightfoot from calling Andrew Gluck to testify.

With respect to plaintiff’s verdict sheet, basically I reserve

decision on that issue, because I heard nothing from the plain-

tiff, and I wondered whether there was anything that the

plaintiff had to say in response.

If you do, I will be glad to listen. Yes

MR. WISEHART: Your Honor, I believe that has to do with

compensatory damages, and the claim for compensatory dam-

ages is clarified in a letter that we sent to the Court today. It

includes his claim for his personal injury, mental anguish and

damage to reputation.

67a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEw YORK

92 Civ. 6411 (RPP)

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICALS

DIVISION,

Defendants.

OPINION AND ORDER

ROBERT P. PATTERSON JR., U.S.D.J.

Plaintiff moves pursuant .7 Rules 52(b) 59(e), 60 (b)(2) and

60(b)(6) of the Federal Rules of Civil Procedure to amend and

modify this Court’s Orders dated May 12, 1994 and July 28,

1994 by: (1) Vacating the grant of summary judgment and the

dismissal of Count V of Plaintiff’s Amended Complaint based

on the Plaintiff’s assignment of invention rights; and (2)

Vacating the Court's decision that Plaintiff’s damages for

backpay are precluded by his failure to accept an uncondi-

tional offer of reinstatement.

Plaintiff argues that “newly discovered evidence” supports

vacating the Court’s previous dismissal of Count V of the

68a

Amended Complaint (a claim of unjust enrichment based on

the alleged expiration of his assignment of invention rights).

Lightfoot Aff. dated August 11, 1994 (“Lightfoot Aff.) at

19] 3-16. Plaintiff contends that because Defendant Union Car-

bide Corporation (“Carbide”) executed a different agreement

with another employee regarding the assignment of invention

rights, material issues of fact are raised which are properly

determined by the jury.' Lightfoot Aff. at 16. However, the

execution by Carbide of a different agreement with another

employee does not create any ambiguity in Plaintiff’s agree-

ment because, under New York law, “{i]f a contract is unam-

biguous, courts are required to give effect to the contract as

written and may not consider extrinsic evidence to alter or

interpret its meaning.” Consarc Corp. v. Marine Midland

Bank, N.A., 996 F-2d 568, 573 (2d Cir. 1993) (citations omit-

ted). Since the Plaintiff’s assignment of invention rights to

Carbide is not ambiguous, this “new evidence” provides no

ground for vacating the dismissal of Count V of the Amended

Complaint.

The other basis Plaintiff offers for amending the Court’s

previous orders consists of Judge McKenna’s decision in Lad-

son v. Ulltra as Parking Corp., 853 F. Supp. 699 (S.D.N_Y.

May 10, 1994). Lightfoot Aff. at 917. Judge McKenna noted

in Ladson that “[iJt is for the trier of fact to determine the

unconditionally of an offer and the reasonableness of a

refusal.” 853 F. Supp. at 705 (citing Pierce v. F-R. Tripler Co.,

955 F.2d 820 [2d Cir. 19921). In Ladson Judge McKenna

ruled that “special circumstances” existed which prevented

the tolling of backpay liability based on undisputed threats of

physical violence toward the plaintiff and a finding that the

defendants did not offer plaintiff the job previously denied as

James B. White, Plaintiff's former supervisor, executed an

agreement with Carbide in 1991 which stated that his assignment obli-

gations “shall survive termination of [his] employment for any reason.”

Lightfoot Aff. Ex. A. Lightfoot’s agreement with Carbide contained no

such provision. /d. at Ex. B. 2.

a

69a

required by Ford Motor Co. y. EEOC, 458 U.S. 219 (1982).

853 F. Supp. at 705-06.

This Court also cited Pierce on page 2 of its July 28, 1994

Opinion and Order for the holding that “an unconditional

offer of a job substantially similar to the one denied the plain-

tiff, may, as a matter of law, toll back pay... .” 955 F.2d at

830. No “special circumstances” exist in the instant case

which would preclude the tolling of backpay liability, and

therefore Judge McKenna’s decision Ladson presents no basis

for amending the Court’s previous orders.’

For the reasons described above, Plaintiff’s motion is

denied in its entirety. As previously ordered, the parties will

prepare and file a pretrial order by February 7, 1994, and be

ready for trial on February 14, 1994.

IT IS SO ORDERED.

Dated: New York, New York

January 23, 1995

/s/

ROBERT P. PATTERSON, JR.

U.S.D.J.

. Plaintiff contends that a psychiatric evaluation by Dr. Stanley L.

Portnow dated August 20, 1992 (the “Portnow Evaluation”) establishes

that his rejection of reinstatement was reasonable because of changed

Staffing patterns in the department where he was offered reinstatement.

Lightfoot Aff. at 1] 18-27 and Ex. C. The Portnow Evaluation, in the pos-

session of Plaintiff’s counsel for almost two years prior to the Court’s

Order and Opinion of July 28, 1994, provides no support for revisiting

the Court's decision that Plaintiff’s damages for backpay are precluded

because of his failure to accept an unconditional offer of reinstatement.

70a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411 (RPP)

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICAL

DIVISION

Defendants.

ORDER AND OPINION

ROBERT P. PATTERSON, JR., U.S.D.J.

This is a motion made pursuant to local rule 3(j) by plain-

tiff Richard Lightfoot for reargument of the Order and Opin-

ion dated May 12, 1994 granting Defendants, Union Carbide,

A.W. Lutz and W.E. Shackelford partial summary judgment.

This motion is denied because plaintiff has raised no new fac-

tual issues or controlling legal decisions which had been over-

looked by the Court in its May 12, 1994 Order and Opinion.

Tla

1. SEVERANCE PAY

Plaintiff argues that the Court improperly decided that

plaintiff's backpay must be reduced by the amount that he

received as severance. Such a deduction is improper accord-

ing to plaintiff because severance pay is a fringe benefit

earned before termination that cannot properly be considered

when determining the amount of backpay that plaintiff is

entitled. However, plaintiff fails to cite to any controlling

authority that this Court overlooked. James v. Fleet/Norstar

Financial Group, 992 F.2d 463 (2d Cir. 1993), cited by plain-

tiff, concerns whether severance pay can be considered an

ERISA benefit and is not applicable to tnis case. Moreover,

courts have routinely reduced backpay awards by the amount

a former employee received in severance. See Munnelly v.

Memorial Sloan Kettering Cancer Center, 741 F. Supp. 60

(S.D.N.Y. 1990); Sinclair v. Insurance Co. of North America,

609 F. Supp. 397 (E.D. Pa. 1984), aff’d 782 F.2d 1029 (3d

Cir. 1986); see also Sims v. Madame Paulette Dry Cleaners,

633 F. Supp. 224 (S.D.N.Y. 1986) (offset damages by plain-

tiff’s unemployment benefits); Meschino v. International Tel.

& Tel. Corp., 661 F. Supp 254 (S.D.N.Y. 1987) (discrimina-

tory employer allowed to deduct pension benefits received by

plaintiff from ADEA award). Thus reargument, on the issue

of the deduction of plaintiff’s severance pay from any back-

pay award is not warranted.

Il. OFFER OF REINSTATEMENT

Plaintiff argues that the Court should vacate its decision

that plaintiff’s damages for backpay are precluded because of

plaintiff's failure to accept an unconditional offer of rein-

statement. Citing Pierce v. F.R. Tripler & Co., 955 F.2d 820

(2d Cir. 1992), plaintiff argues that a genuine issue of fact

exists as to whether the offer or reinstatement was uncondi-

tional. However, the Second Circuit in Pierce held that “an

unconditional offer of a job substantially similar to the one

72a

denied the plaintiff, may, as a matter of law, toll back pay,

. . .” Id. at 830. As discussed in the May 12, 1994 Order and

Opinion the offer of reinstatement was unconditional and

plaintiff has failed to raise a genuine issue of material fact as

to whether the offer of reinstatement was unconditional.

Plaintiff has cited nothing about the offer of reinstatement

which would make it a conditional offer. The fact that layoffs

had changed the composition of his work group, that Mr.

Shackelford would still be his superior and that Carbide

required an answer within three weeks do not make the offer

of plaintiff’s job back a conditional offer. Order and Opinion

at pp. 9-12. Accordingly, reargument of the effect of the

unconditional offer of reinstatement is denied.

III, CLARIFICATIONS

Plaintiff argues that the May 12, 1994 Order and Opinion

must be clarified because it does not state 1) that plaintiff is

entitled to front pay; 2) that plaintiff is entitled to compen-

satory damages under the New York State Human Rights

Law; and 3) because footnote three of the Order and Opinion

must be corrected.

In the May 12, 1994 Order and Opinion the Court stated

that plaintiff could “not recover damages for lost wages

because he continued to receive full pay as a severance ben-

efit after he was offered his old job back.” Order and Opinion

at 12. Front pay may be offered as a remedy in appropriate

cases where reinstatement is not a suitable remedy. Whittle-

sey v. Union Carbide Corp., 742 F.2d 724 (2d Cir. 1984). In

this case plaintiff waived his right to front pay when he

declined Carbide’s offer of reinstatement. See Ford Motor Co.

v. E.E.O.C., 458 U.S. 219, 231-32 (1982); see also Dominic

v. Consolidated Edison Co. of New York, Inc., 822 F.2d 1249,

1258 (2d Cir. 1987) (plaintiff’s failure to mitigate damages,

by refusing substantially equivalent job, forecloses award of

frontpay); Reilly v. Cisneros, 835 F. Supp. 96, 99 (W.D.N.Y.

1993) (“[i]f a plaintiff rejects an offer of substantially simi-

73a

lar employment, he loses his right to pay from and after the

time of such rejection”); accord Rodgers v. Western Southern

Life Ins, Co., 12 F.3d 668, 678 (7th Cir. 1993) (court refused

to award front pay where plaintiff-employee declined offer of

reinstatement).

Plaintiff also argues that footnote 12 of the Court’s Order

and Opinion should be clarified because it does not state that

plaintiff may be entitled to compensatory damages under the

New York State Human Rights Law. N.Y. Exec. Law § 296 er

seq. The footnote does not indicate anything to the contrary

and does not need to be clarified. Plaintiff’s contention that

the statement in footnote 3 that “all reduction in force pro-

grams force employees to leave a company” needs to be cor-

rected is similarly without merit. The reduction of force

Program to which the Court refers was not voluntary and

plaintiff agrees that his cessation of employment pursuant to

the reduction in force was not voluntary. To the extent that

clarification is required the phrase “all reduction in force pro-

grams” is hereby changed to read “all non-voluntary reduction

in force programs.”

For the foregoing reasons plaintiff’s motion for reargument

is denied. The parties will appear before the Court for a pre-

trial conference on August 11, 1994 at 9 a.m. in Room 302.

IT IS SO ORDERED.

Dated: New York, New York

July 28, 1994

/s/

Robert P. Patterson, Jr.

U.S.D.J.

74a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 Civ. 6411 (RPP)

RICHARD HALL LIGHTFOOT,

Plaintiff,

a | an

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICAL

DIVISION,

Defendants.

APPEARANCES

Counsel for Plaintiff:

Wisehart & Koch

25 West 43rd Street

New York, N.Y. 10036-7498

By: Arthur M. Wisehart

Tel: 212-730-0044

Fax: 212-730-0047

75a

Counsel for Defendants:

Mudge Rose Guthrie Alexander

& Ferdon

180 Maiden Lane

New York, N.Y. 10038-7000

By: Joel Cohen

Tel: 212-510-7436

Fax: 212-248-2655

ORDER AND OPINION

ROBERT P. PATTERSON, JR., U.S.D.J.

Defendants, Union Carbide, A.W. Lutz and W.E. Shack-

elford move for an order pursuant to Fed. R. Civ. P. 56(b)

granting summary judgment to defendants, dismissing plain-

tiff’s amended complaint which contains seven counts and

awarding defendants attorneys’ fees and costs. Plaintiff,

Richard Lightfoot, moves for an order granting partial sum-

mary judgment for plaintiff on Counts I, II, III and V of his

amended complaint. Plaintiff also moves to strike the affi-

davit of Joel E. Cohen, Esq. sworn to July 9, 1993 and a

letter dated December 3, 1992 from the record, for further

discovery pursuant to Fed. R. Civ. P. 56(f), for sanctions

against defendants pursuant to Fed. R. Civ. P 11, and for an

award of attorneys’ fee and costs in plaintiff's favor. Each of

these requests will be discussed in turn.

I. BACKGROUND FACTS

In 1959, Plaintiff Richard Lightfoot accepted a position at

Union Carbide Corporation (“Carbide”) as a Chemica] Engi-

neer. Shortly after beginning his employment with Carbide

plaintiff signed a Memorandum of Employee’s Agreement. In

the Agreement plaintiff assigned to Carbide all rights to any

invention in which he was involved during the course of his

76a

employment. In 1968, plaintiff was transferred to Carbide's

New York City headquarters. In 1980, plaintiff was relocated

from Carbide’s New York City office to Carbide’s new head-

quarters in Danbury, Connecticut. He continued to reside in

New York City. In 1986, Plaintiff signed a second Memo-

randum of Employee’s Agreement assigning Carbide his

rights to his inventions. Wisehart Aff. submitted pursuant to

local rule 3(g), at 19.1, 2, 4, 6.

In the 1980's, plaintiff held a variety of positions includ-

ing Special Projects Manager and Marketing Manager for

Surfactants. /d. at 95. On April 27, 1992, plaintiff was ter-

minated from Carbide as part of a reduction in force program.

He rejected the enhanced severance benefits offered by the

program and instead received full pay as severance until

February 1993. On December 3, 1992, Carbide made an offer

to reinstate plaintiff to his former position; plaintiff rejected

this offer. Cohen Aff., Exhs. G & H. In February 1993, plain-

tiff accepted a position with CRI, Inc. a consulting firm in the

Chemical industry. /d. at 19.12, 14-16.

II. APPLICABLE LEGAL STANDARD

Summary judgment is appropriate if the evidence offered

demonstrates that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter

of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The burden rests on the moving party to demonstrate the

absence of a genuine issue of material fact, Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 (1970), and the Court must

view the facts in the light most favorable to the non-moving

party. United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

III. PLAINTIFF’S NEW YORK STATE AND FEDERAL

AGE DISCRIMINATION CLAIMS

Defendants contend that they should be granted summary

judgment as to Counts I and III of the amended complaint,

plaintiff’s federal and New York State age discrimination

claims, because plaintiff cannot meet his burden of showing

77a

that age was a determinative factor in his dismissal.' In order

to prove discrimination based on age “[t]he plaintiff has the

burden of proving that ‘age was the ‘determining factor’ in

his discharge in the sense that, ‘but for’ his employer's

motive to discriminate against him because of age, he would

not have been discharged.’ ” Pena v. Battleboro Retreat, 702

F.2d 322, 323 (2d Cir. 1983) (citation omitted). Defendants

rely on plaintiff's deposition testimony in which he ascribed

his termination to the jealousy, : If-interest and competitive

attitude of his immediate supervisor to support their motion

for summary judgment.

Plaintiff urges utilization of the McDonnell Douglas? anal-

ysis of the evidence:

In order to establish a prima facie case of termination of

employment in violation of the ADEA, a plaintiff must

show (1) that he was within the protected age group,

(2) that he was qualified for the job, (3) that he was

discharged, and (4) that the discharge occurred under

circumstances giving rise to an inference of age dis-

crimination.

Stetson v. NYNEX Service Co., 995 F.2d 355, 359 (2d Cir.

1993). “If a prima facie case is established, the employer

must offer a legitimate, nondiscriminatory reason for its

actions.” Spence v. Maryland Casualty Co., 995 F.2d 1147,

1155 (2d Cir. 1993). If the employer presents such a reason

the burden is on the plaintiff to show that the proffered reason

was pretext for discrimination. /d.

Under the McDonnell Douglas test Lightfoot has estab-

lished the first three elements of a prima facie case because

he: 1) was in the protected age group, 2) was qualified for the

job he held and 3) was discharged.

. Plaintiff's age discrimination claim under New York Executive

Law § 239 et seq. is governed by the same standard as his ADEA claim,

29 U.S.C. § 623 et seq. See Spence v. Maryland Casualty Co., 995 F.2d

1147, 1158 (2d Cir. 1993).

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

78a

Defendants and plaintiff dispute whether the evidence

shows that plaintiff’s discharge occurred under circumstances

that give rise to an inference of discrimination. Plaintiff was

discharged as a result of a reduction in force at Carbide under

a program called the “Enhanced Separation Program.”* To

effectuate this reduction of force supervisors at Carbide

“forced-ranked” employees within a group to determine

which employee should be terminated. The “Forced-ranking”

system involved weighing the following factors: ability, effec-

tiveness, versatility, value to continuing business operation,

uniqueness, company service and reassignment potential. In

plaintiff’s case it was applied to a group of 13 employees of

which Lightfoot was the oldest. Lightfoot Aff. in Opposition

to Summary Judgment, Exhs. E and I. Plaintiff’s main con-

tention is that a report on the forced-ranking session in which

Carbide made the decision to terminate him shows that age

played a factor in his termination because the document con-

tains the dates of birth of the employees forced-ranked and

because plaintiff, the oldest person ranked, was terminated

rather than a person under 40 who received an equal ranking.

Lightfoot Aff. in Opposition to Summary Judgment, Exh. E.

Plaintiff also bases his argument on a written comment and a

non-verbal response (a look) by Mr. Shackelford, his superior,

when plaintiff informed him that plaintiff intended to work

until age 70. Lightfoot Aff. in Opposition to Summary Judg-

ment, Exh. C.* The comment was made two years before

; Plaintiff also argues in his cross-motion that partial summary

judgment should be granted in his favor on the age discrimination claim

because defendants failed to deny that the Enhanced Separation Program

adopted by Carbide “has a coercive purpose and effect. Older employees

who did not accept the separation package were force to leave the

company in any event.” Amended Complaint, 4149. This point is with-

out merit since all reduction in force programs force employees to leave

a company.

: In a written evaluation of plaintiff’s work in 1989, Shackelford

wrote that:

Dick [plaintiff] wants to work until he is 70 and wants to know

how he can maximize his contributions during the next 15 years!

I suggested his two areas of greatest demonstrated strength were

79a

plaintiff was terminated and on its face does not give rise to

an inference of discrimination based on age. See Moore v. Eli

Lilly & Co., 990 F.2d 812, 818 (Sth Cir. 1993), cert. denied,

114 S.Ct. 467 (1993) (supervisor’s inquiry into employee's

retirement plans after learning employee’s age did not rep-

resent a discriminatory intent, but was a reasonable inquiry

regarding employee's longevity). The look by Shackelford

could be open to various interpretations.

Since plaintiff was the oldest employee, plaintiff’s termi-

nation due to the forced-ranking procedure instead of an

equally ranked younger employee gives rise to an inference of

discrimination based on age. Here, however, plaintiff testified

expansively during his deposition as to his conclusion that

Mr. Shackelford’s self-interest and competitiveness with

plaintiff were the cause of plaintiff’s termination from

Carbide. Cohen Aff., Exh. C, Lightfoot Dep. at 122-25, 166-

170. Plaintiff attempts to rebut defendants’ use of his depo-

sition testimony by directing the Court to other portions of his

deposition testimony in which he stated that the treatment he

received at Carbide vas due to age discrimination, and that he

thought Mr. Shackelford was discriminating against him on

the basis of age.* Lightfoot Aff. in Opposition to Summary

Judgment, Exh. L, pp. 22-26, 163. Both excerpts are conclu-

sions of plaintiff reached after his discharge, as is the plain-

in management of product safety and an incredible feel for

tactical dynamics—ie, a super tactical product/ market manager.

At this point this is the direction I would recommend for him.

Lightfoot Aff. in Opposition, Exh. C.

’ Plaintiff also seeks to substantiate his claim of age discrimina-

tion by citing to his moving affidavit which merely states conclusory

allegations of age discrimination. Defendants object to statements in

Lightfoot’s affidavit such as “[bJias against older employees was (and is)

a part of the permanent corporate psyche of Union Carbide Corporation

. . -” Aff. at $60. Defendant correctly states that to the extent such state-

ments are inconsistent with plaintiff’s deposition testimony they must be

disregarded because they do not create genuine issues of material fact.

See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d

566, 572 (2d Cir. 1991); Douglas v. Weil, Gotshal & Manges, 1993 WL

364572 (S.D.N.Y. 1993).

80a

tiff’s testimony about Shackelford’s self-interest and com-

petitiveness.

Under these circumstances, where plaintiff’s deposition

testimony states more than one possible motivation for his

employer’s decision to terminate him, plaintiff’s complaint

must be examined as arising out of mixed motivation and

Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989) applies.

In Price Waterhouse, the Supreme Court hela that:

An employer may not. . . prevail in a mixed-motives

case by offering a legitimate and sufficient reason for its

decision if that reason did not motivate it at the time of

the decision. . . . The employer instead must show that

its legitimate reason, standing alone, would have induced

it to make the same decision.

Id. at 1791-92.

In this case Carbide’s papers fail to set forth a legitimate

and sufficient reason for its decision to terminate plaintiff,

instead defendants rely on plaintiff’s conclusory statements

as to Shackelford’s self-interest and competitiveness. Thus

Carbide has failed to show that its legitimate reasons for ter-

minating plaintiff standing alone would have induced it to

make the decision to terminate plaintiff. Accordingly, sum-

mary judgment is inappropriate because an inference of age

discrimination has been raised by the termination of plaintiff,

the oldest member of the group of employees evaluated,

rather than the equally-ranked younger employee in the

group. Accordingly, genuine issues of material fact remain

regarding Carbide’s motives for terminating plaintiff. Defen-

dants’ motion for summary judgment on plaintiff’s ADEA and

New York State Human Rights claims is denied.°®

¢ Plaintiff moves for summary judgment on his age discrimination

claim based on the fact that defendants did not verify their answer in

response to plaintiff’s verified complaint in violation of New York Civil

Practice Law and Rule § 3016(f). However, since this action was brought

in federal court “the Federal Rules of Civil Procedure ‘govern the mode

of proceedings in federal court. . . .’” Harbor Seafood, Inc. v. June

Foods, Inc., 1987 WL 15275 (E.D.N.Y. 1987) (denying plaintiff’s motion

for summary judgment predicated upon defendant’s failure to comply

8la

IV. THE LETTER OF REINSTATEMENT

In a December 3, 1992 letter to plaintiff Mr. Shackelford of

Carbide made an unconditional offer to reinstate plaintiff to

his prior position as market manager. Cohen Aff., Exh. G.

Plaintiff responded to the letter through his counsel. Cohen

Aff., Exh. H. In the response letter and in his motion papers

plaintiff contends that the letter was an improper violation of

Disciplinary Rule 7-104(a)(1) and that it should be Stricken

from the record pursuant to Fed. R. Fvid. 408 because it was

an offer of compromise.

In Ford Motor Co. v. E.E.0.C., 458 U.S. 219, 241 (1982),

the Supreme Court held that “absent special circumstance, the

rejection of an employer’s unconditional job offer ends the

accrual of potential backpay liability.” The letter in this case

was sent by Mr. Shackelford on Carbide letterhead explaining

that because another marketing manager had resigned Carbide

was offering Mr. Lightfoot his old job back. The letter also

stated that “/t]his offer is unconditional.” Because plaintiff

had received full pay as severance and continued to receive

such pay after he received the offer Carbide contends that

plaintiff is entitled to no backpay.

Plaintiff argues that the letter is “bogus” and is inadmissi-

ble evidence. Plaintiff's first objection is that the letter was

sent directly to Mr. Lightfoot at a time when he was repre-

sented by counsel in violation of DR 7-104(a)(1).’ Although

the letter was not sent by defendant's counsel to Mr. Light-

foot, plaintiff contends that “(t]he contents of the Shackelford

letter are such as to indicate that it must have been sent with

with CPLR § 3016(f) in federal diversity action) (citing Granny Goose

Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 438 (1974).

v DR 7-104(a)(1) states:

During the course of the representation of a client a lawyer shall

not:

(1) Communicate or cause another to communicate on the sub-

ject of the representation with a party the lawyer knows to be

represented by a lawyer in that matter unless the lawyer has the

prior consent of the lawyer representing such other party or is

authorized by law to do so.

82a

the prior knowledge or consent of counsel for the defendants

. . .” Pl. Mem. in Support of Summary Judgment, p. 10.

Despite plaintiff’s presumption the evidence does not show

that any disciplinary rule has been broken. At his deposition

Mr. Shackelford testified that it was his idea to offer Mr.

Lightfoot his job back after another employee decided to

leave Carbide. Shackelford then conferred with Mr. Lawlor,

Carbide’s inside counsel, about whether he could offer Mr.

Lightfoot the job and showed Lawlor a draft of the letter.

Shackelford also testified that the language of the letter, par-

ticularly the term “unconditional,” came from him. Shack-

elford Dep., pp. 26-46. Thus the November 1992 letter was

not a violation of DR 7-104(a) because no evidence has been

elicited that an attorney sent the letter or caused the letter to

be sent.®

Plaintiff argues that the letter was an offer of compromise

and is inadmissible under Fed. R. Evid. 408. However, plain-

tiff does not show any circumstances which would make the

letter an offer of compromise and the letter on its face is

unconditional and does not require Lightfoot to compromise

his claims against the defendants. Although plaintiff’s coun-

sel’s response to the offer by Carbide refers to settlement

negotiations, there is no evidence that the offer letter was sent

as part of those settlement negotiations; rather Mr. Shack-

elford testified that the idea to send the letter stemmed from

a vacancy in his department and his thought that plaintiff

could fill the position. Moreover, by the terms of the letter

plaintiff was not required to drop his claims against defen-

dants. Thus Fed. R. Evid. 408 is not a bar to the admission of

the letter as an offer of compromise.

. Plaintiff also asks the Court to strike the affidavit of Mr. Cohen,

the defendants’ attorney, because it is not based on personal knowledge.

There is no basis upon which to strike Mr. Cohen’s affidavit because it

merely serves as a roadmap for the documentary evidence and deposition

testimony produced during this litigation. See Spence v. Maryland Casu-

alty Co., 803 F. Supp. 649, 664 (W.D.N.Y. 1992), aff'd, 995 F. 2d 1147

(2d Cir. 1993); Maier-Schule GMC, Inc. v. General Motors Corp., 780 F.

Supp. 984, 988 (W.D.N.Y. 1991).

83a

Plaintiff also contends that the letter does not end Carbide’s

backpay liability because the offer was not unconditional

Since it was predicated on Mr. Lightfoot having to accept or

reject the letter by a certain date, it did not offer plaintiff

increased benefits to which he claims he was entitled and

because the job he was offered could not be the same because

most of the people he worked with were no longer in the

group. Although these may be deemed conditions, an offer for

reinstatement is considered “unconditional” if the job offered

is substantially equivalent to the position that the employee

claims to have been wrongfully terminated from and if the

employee does not have to drop his legal claims against the

employer. See Ford, 458 U.S. at 232. The letter sent by Car-

bide to Lightfoot is an unconditional offer of reinstatement

and serves to cut off Carbide’s backpay liability. See Ford.

Although plaintiff may pursue his federal and New York State

age discrimination claims he cannot recover damages for lost

wages because he continued to receive full pay as a severance

benefit after he was offered his job back. Summary judgment

is granted in the defendants’ favor in all causes of actions as

to Carbide’s liability for backpay.

Vv. NEW YORK CITY HUMAN RIGHTS LAW CLAIM

Defendants contend that plaintiff’s claim under the New

York City Human Rights law must be dismissed because

plaintiff has failed to allege that his complaint was filed with

the New York City Commission on Human Rights or with the

New York City Corporation Counsel prior to the commence-

ment of this action and because there are no allegations that

the defendants intentionally discriminated against him within

the boundaries of New York City. Plaintiff argues that the

New York City Human Rights Law should extend to his claim

because he was living in New York City and performed work

at home occasionally and because Carbide still has some

offices in New York City. Plaintiff also alleges that the Early

Separation Program adopted by Carbide was approved at a

meeting in New York City. Its impact on him, however,

occurred while he was employed in Connecticut. Lightfoot

Aff. in Opposition, 9] 265-266, 269-274.

84a

Although plaintiff argues that summary judgment should

not be granted in defendant’s favor because he has “duly”

filed his complaint with the New York City Commission on

Human Rights or the New York City Corporation Counsel, he

has not testified that he filed his complaint prior to com-

mencing this civil action or provided the Court with an

exhibit to support his claim that his complaint was filed prior

to commencing this civil action as required under the City

Law. Lightfoot Aff. in Opposition to Summary Judgment at

9267; see New York City Administrative Code § 8-502.

Moreover, plaintiff does not allege that defendants inten-

tionally discriminated against him within the boundaries

of New York City and the jurisdiction of the New York City

Human Rights Commission does not extend to Connecticut.

See N.Y. Gen. Mun. Law § 239-s; N.Y.C. Admin. Code

§ 2-201. Accordingly, summary judgment is granted in the

defendants’ favor on plaintiff’s New York City Human Rights

claim and Count II of plaintiff's amended complaint is

dismissed.

VI. PLAINTIFF’S ERISA CLAIM

Section 510 of the Employee Retirement Income Security

Act (“ERISA”), 29 U.S.C. § 1140, provides that “[{i]t shall be

unlawful for any person to discharge . . . a participant or

beneficiary . . . for the purpose of interfering with the attain-

ment of any right to which such participant may become enti-

tled underthe plan... .”

Plaintiff maintains that he has an ERISA claim against Car-

bide because there is a causal link between his discharge and

the diminution of his pension benefits. Plaintiff has presented

no evidence to show that his discharge was motivated by Car-

bide’s desire to lessen his pension benefits. Plaintiff cites

Turner v. Schering-Plough Corp., 901 F.2d 335 (3d Cir.

1990), for the proposition that the reduction of benefits result-

ing from plaintiff’s termination could reasonably be viewed

as a motivating factor in his discriminatory treatment. How-

ever, in Zurner, the Third Circuit did not find that a plaintiff’s

mere allegations that his benefits were reduced to be suffi-

85a

cient evidence to support a claim for discrimination under

ERISA. In fact, the Third Circuit stated:

As we have noted, Turner’s discharge did not deprive

him of his pension. All Turner has shown is that his ter-

mination deprived him of the opportunity to accrue addi-

tional benefits through more years of employment. This

kind of deprivation occurs whenever an ERISA employer

discharges an employee and is not alone probative of an

intent to interfere with pension rights.

Id. at 348. The court in Turner held that under the circum-

stances surrounding Turner’s discharge Turner had not estab-

lished a prima facie case of discrimination based on ERISA

and that summary judgment was properly granted to the

employer. Similarly, here plaintiff has only shown that his

potential pension benefits were diminished by his termination,

and although the court in Turner acknowledged that a plain-

tiff might be able to establish a prima facie case of ERISA

discrimination if the reduction of pension benefits were sub-

Stantial this is not such a case. See Dister vy. Continental

Group, Inc., 859 F.2d 1108, 1117 n.1 (2d Cir. 1988) (“[the

Second Circuit’s opinions] cannot be read to mean that mere

cost savings and proximity to benefits are sufficient per se to

create a genuine issue of fact requiring a trial.”). Lightfoot’s

pension benefits have already vested and although his dis-

charge resulted in his being unable to accrue further benefits,

plaintiff has not presented any evidence that this was a moti-

vating factor in his discharge. Indeed he was offered the

opportunity to accrue additional benefits and chose not to do

so when he rejected Shackelford’s offer of reinstatement.

Accordingly, summary judgment on plaintiff’s ERISA claim

is granted in defendants’ favor and Count VI of the amended

complaint is dismissed.?

’ Plaintiff argues that summary judgment in his favor on his

ERISA claim should be granted because defendants failed to answer 9.49

of the Amended Verified Complaint and have “conceded that the sepa-

ration program had a coercive purpose and effect. . . .” Pl. Brief in

Opposition, p. 13. After reviewing the Answer it is clear that the failure

to deny paragraph 49 was a clerical oversight created by a page break.

86a

VII. BREACH OF CONTRACT CLAIM

Plaintiff contends that Connecticut law should be applied to

his breach of contract claim because under New York law the

law of the state where the contract is to be performed applies,

and in this case Carbide’s office was located in Connecticut.

See Bergstein v. Jordache Enterprises, Inc., 767 F. Supp. 535,

541 (S.D.N.Y. 1991); Babcock v. Jackson, 240 N.Y.S.2d 743

(1963). Defendants argue that plaintiff’s claim fails under

either Connecticut or New York law.

Plaintiff maintains that the contract he entered into with

Carbide provided that he could be terminated only if he failed

to perform adequately. However, the two Memorandums of

Employee’s Agreement that he signed with Carbide expressly

provide that: “[t]his agreement does not, of course, bind

either party to any specific period of employment.” Cohen

Aff., Exh. D and E. Plaintiff maintains that he had a lifetime

employment agreement with Carbide but does not give

specifics, rather stating that Carbide represented to him that

he had a life-time position with the company. Lightfoot Aff.

at 9] 239-247. Under Connecticut law these allegations are

insufficient to defeat a summary judgment motion when

employment was at will.

“In Connecticut, an implied employment contract may arise

under the doctrine of promissory estoppel, where injustice

to a promise who has acted in reliance can be avoided only

by enforcement of ‘a clear and definite promise which a

promisor could reasonably have expected to induce

reliance.’ ” Manning v. Cigna Corp., 807 F. Supp. 889, 895

(D.Conn. 1991) (citation omitted). In Manning, the court

granted summary judgment to the employer on the plaintiff’s

implied contract claim because the plaintiff could not provide

any evidence “to support his unilateral understanding of an

implied employment contract on the issue of discharge.” /d.

Cohen Reply Aff., 15. Because plaintiff has suffered no prejudice due to

this oversight, defendants’ Answer is considered to have denied 449 of

plaintiff’s Amended Verified Complaint. See Jewish Nat’l Fund, Inc. v.

Garland, 1985 WL 163 (S.D.N.Y. 1985); Pelch v. Peninsula Gen. Hosp.,

340 N.Y.S.2d 388 (2d Dept. 1973).

87a

at 896. See Anderson v. Coca Cola Bottling Co. of New York,

Inc., 772 F. Supp. 77 (D. Conn. 1991); Johnson v. Carpenter

Technology Corp., 723 F. Supp. 180 (D. Conn. 1989). In this

case plaintiff does not point to any clear and definite promise

which was made to him by Carbide. The lack of a clear and

definite promise of lifetime employment combined with the

two Memorandums of Employee’s Agreement which plaintiff

signed support the conclusion that plaintiff’s employment was

terminable at will. New York law does not differ. See Cucchi

v. New York City Off-Track Betting Corp., 818 F. Supp. 647,

653 (S.D.N.Y. 1993); Sabatey v. Sterling Drug, Inc., 514

N.Y.S.2d 209 (1987). Accordingly, Count IV of the amended

complaint is dismissed and summary judgment as to plaintiff’s

implied contract claim is granted in the defendants’ favor.

VII. QUANTUM MERIT

In his complaint plaintiff alleges that he has a claim in

quantum meruit against Carbide because of his participation

in the making of inventions at Carbide. Defendants contend

that plaintiff’s claim for quantum meruit fails as a matter of

law.

In order to make out a claim in quantum meruit, the

plaintiff must establish performance of his services in

good faith, acceptance of the services by the persons to

whom such services were rendered, expectation of com-

pensation, and the reasonable value of such services.

Paper Corp. of US. v. Schoeller Technical Papers, Inc., 773

F. Supp. 632, 640 (S.D.N.Y. 1991) (citing Martin H. Bauman

Assocs. Inc. v. H & M Int'l Transport., 567 N.Y.S.2d 404, 404

(lst Dept 1991)).

Defendants contend that plaintiff has not established that he

had a reasonable expectation of compensation for his role in

developing the inventions. Plaintiff argues that he has shown

as required by New York precedent that the services he pro-

vided by participating in the inventions were “so distinct from

the duties of his employment and of such a nature that it

would be unreasonable for the employer to assume that they

88a

were rendered without expectation of further pay.” Robinson

v. Munn, 238 N.Y. 40, 43 (1924).'° However, during his depo-

sition plaintiff testified that:

It was everything that the marketing manager’s job was

to do. I mean our whole role. . . . Our reason for exis-

tence, reason for this huge—not just me but there was

100 odd marketing people, maybe 10 marketing man-

agers, probably 300 R&D involved in this effort, the

whole reason was to develop new products, new product

lines.

Lightfoot Dep. at 97.

Mr. Lightfoot also testified that although his job included

the development of new products he would not develop all

new products, just those related to surfactants, the group for

which he was a marketing manager.

My job was new products and surfactants and I was just

bending my talents to it the best way I knew to make the

best for the company but not outside surfactants. Now,

I don’t recall any particular product coming out that was

outside surfactants. I will say this, if we came up with an

idea that was outside surfactants, again, I have no rec-

ollection of that, I would have made it my duty, my busi-

ness to get the right people somewhere within Carbide

both R&D and commercial people to alert them of the

idea. I wouldn’t do more than alert them of the idea.

Lightfoot Dep. at 75.

In an August 26, 1992 sworn declaration to the United

States Patent and Trademark Office regarding one of the

inventions at issue, plaintiff asserted:

That I was not employed or assigned to perform

research, development, or exploration work, but the

invention is nevertheless related to the work or duties

I was employed or assigned to perform;

10 Plaintiff does not argue that any law other than New York law

applies to his quantum meruit claim.

89a

That the invention was made during waking hans and

with the use of the facilities, equipment, materials,

funds, information and services of Union Carbide Chem-

icals and Plastics Company, Inc.;

Cohen Aff., Exh. F, p. 2. This declaration by plaintiff, the

provisions of the two Memorandums of Employee’s Agree-

ment in which plaintiff agreed to assign all his inventions to

Carbide and his deposition testimony all establish that plain-

tiff’s participation in the development of the inventions was

not so far outside of the scope of his employment so that Car-

bide would have to provide extra compensation for those

services.

Although plaintiff claims that Carbide should have known

that the work plaintiff performed in terms of the inventions

entitled him to additional compensation, plaintiff has sub-

mitted no evidence that he was promised or asked for any-

thing more than consideration for a promotion." Summary

judgment in defendants’ favor is granted with regards to

plaintiff’s quantum meruit claim based on his contributions to

inventions and new products at Carbide.

IX. UNJUST ENRICHMENT

Unjust enrichment is a quasi-contractual claim which

allows a party to recover to prevent another party from being

unjustly enriched at his expense. Bradkin v. Leverton, 309

N.Y.S.2d 192, 196 (1970); Connecticut Nat’! Bank v. Chap-

man, 216 A.2d 814, 817-18. Count VI of plaintiff’s verified

amended complaint asserts a claim for unjust enrichment due

to plaintiff’s participation in the inventions. Defendants argue

that plaintiff’s claim for unjust enrichment fails as a matter of

law because Carbide was entitled to any benefits that Carbide

received from plaintiff's participation in the inventions by

virtue of the two Memorandums of Employee’s Agreement

which plaintiff signed.

he His March 1990 performance evaluation stated that considera-

tion for a promotion required more than for plaintiff to develop new

products, it also required plaintiff to improve his interpersonal skills.

Lightfoot Aff. in Opposition, Exh. C.

90a

In 1959, plaintiff signed a Memorandum of Employee’s

Agreement, in which he agreed that:

In consideration of my employment by Union Carbide

Corporation. . .l agree. . . . [t]o assign to Union Car-

bide Corporation all inventions made by me, alone or

jointly with others, in the course of such employment,

relating to the business of the Corporation or resulting

from tasks specifically assigned to me by the Corpora-

tion.

Cohen Aff., Exh. D. In 1986, plaintiff signed another Mem-

orandum of Employee’s Agreement with the same provision.

Cohen Aff., Exh. E. Nevertheless plaintiff claims that

“Carbide has been unjustly enriched by receiving the benefit

of new product lines and inventions developed by plaintiff

pursuant to its requests.” Complt. at 4 141. Plaintiff contends

that because his employment was terminated that the non-

occurrence of the condition precedent that he be employed

discharged his duty to assign under the terms of the employ-

ment agreement. However, plaintiff was employed by Carbide

for 33 years, thus the condition precedent that he be employed

by Carbide occurred and plaintiff is obliged to assign the

rights to the inventions he made during the course of his

employment to Carbide.

Plaintiff cites to Eenkhoorn v. New York Tel. Co., 514

N.Y.S.2d 160 (1st Dept. 1987), claiming that Carbide is not

entitled to summary judgment because issues of fact exist

as to whether the company has been unjustly enriched.

Eenkhoorn is distinguishable from this case because in

Eenkhoorn there was no agreement between the employee and

the employer pertaining to the development of ideas. Thus

questions of fact existed as to whether the company had a pol-

icy of remunerating employees for suggestions and as to

whether the company had been unjustly enriched by using the

employee’s ideas. /d. at 161. In this case there is an agree-

ment between the employee and the employer as to the

assignment of inventions, and plaintiff has presented no proof

whatsoever that Carbide had a policy of paying employees for

new inventions. Accordingly, Count V of plaintiff’s amended

9la

complaint is dismissed and defendants are granted summary

judgment on plaintiff’s unjust enrichment claim.

X. TORTIOUS INTERFERENCE WITH CONTRACT

| CLAIM

Defendant Shackelford seeks to dismiss plaintiff’s claim

against him for tortious interference with contract because the

venue is improper and because it fails as a matter of law.

Plaintiff contends that the venue is proper under Section

7(c)(1) of the ADEA (29 U.S.C. § 626(c)), and that the defen-

dants have waived their venue objections under Fed. R. Civ.

P. 12(h)(1).

28 U.S.C. 1391(b) provides in relevant part:

A civil action. . . may be brought in (1) a judicial dis-

trict where any defendant resides, if all defendants reside

in the same State, (2) a judicial district in which a sub-

stantial part of the events or omissions giving rise to the

claim occurred . . . or (3) a judicial district in which

any defendant may be found, if there is no district in

which the action may otherwise be brought.

Venue in this district is inappropriate under Section

1391(b)(1) because at the time the suit was commenced

defendant Shackelford was a resident of Connecticut, defen-

dant Lutz was a resident of the State of New York and Car-

bide (for the purposes of this motion) was both a resident of

New York and Connecticut. Since a substantial portion of the

acts Or Omissions giving rise to plaintiff’s cause of action for

tortious interference with contract occurred in Connecticut,

plaintiff’s place of employment, venue in Connecticut would

be appropriate.

Plaintiff contends that venue is proper under Section

7(c)(1) of the ADEA, 29 U.S.C. § 626(c)(1) and under the

New York Law Arm statute, New York Civil Practice Law and

Rules § 302. Section 7(c)(1) of the ADEA provides that:

“[a]ny person aggrieved may bring a civil action in any court

of competent jurisdiction.” However, this does not relieve the

parties of establishing proper venue. See Quinn v. Bomar Pub-

92a

lishing Co., 445 F. Supp. 780 (D. Md. 1978) (venue for

ADEA claim lay in district in which plaintiff was discharged).

Plaintiff states in a conclusory fashion that Shackelford is

subject to personal jurisdiction under the New York long arm

statute without attempting to show why the necessary ele-

ments for such jurisdiction have been met. Because no evi-

dence has been presented that Shackelford transacts any

business within the state of New York or that he derives sub-

stantial revenue from in interstate or international commerce,

the New York long arm statute does not provide this Court

with personal jurisdiction over Shackelford. N.Y. Civ. Prac.

L. & R. § 302. Moreover, contrary to plaintiff’s assertions,

defendants have not waived their venue objections under Fed.

R. Civ. P. 12(b) since in their Answer and in their motion

papers the venue objection was properly asserted. Answer

1 166.

Plaintiff’s tortious interference claim also fails as a matter

of law. Under Connecticut law plaintiff’s claim is barred by

the Workers Compensation Act because plaintiff failed to

allege that his employer, Carbide, directed Shackelford to

commit the tort. Vorvis v. Southern New England Tel. Co., 821

F. Supp. 851, 856 (D. Conn. 1993) (“intentional tort claim is

barred unless the actor is acting with the knowing autho-

rization of the employer”) (citing Jett v. Dunlap, 425 A.2d

1263 (Conn. 1979)). Plaintiff’s tortious interference with con-

tract claims also fails under New York law because plaintiff

may not circumvent the lack of a cause of action for abusive

or wrongful discharge of an at-will-employee under New York

law by casting his cause of action as another intentional tort.

Ingle v. Glamore Motor Sales, Inc., 538 N.Y.S.2d 771, 774

(1989) (“the plaintiff here cannot be allowed to evade the

employment-at-will rule and relationship by recasting his

cause of action in the garb of a tortious interference with his

employment”); Murphy v. American Home Products Corp.,

461 N.Y.S.2d 232 (1983) (plaintiff not allowed to subvert the

traditional at-will-contract rule by casting his cause of action

as one for intentional infliction of emotional distress or as a

prima facie tort). Accordingly, Count VII of plaintiff’s

93a

amended complaint against defendant Shackelford for tortious

interference with contract is dismissed.

XI. PLAINTIFF’S DISCOVERY REQUESTS

Plaintiff’s request for further discovery was denied in this

Court’s Order of November 22, 1993 and the order of Decem-

ber 6, 1993 pending the outcome of the motions decided

herein. The request for further discovery is now denied

because plaintiff failed to make a motion pursuant to Fed. R.

Civ. P. 37 to compel production of the documents requested

but not provided and because plaintiff has not provided

the Court with evidence of any efforts by his counsel to

obtain these documents from April 23, 1993 to the bringing

of this motion for further discovery on September 8, 1993.

Furthermore, defendants state that some of the requested

documents are not relevant, have already been produced pur-

suant to earlier requests or cannot be produced because they

do not exist. Cf. Order and Opinion of December 6, 1993.

Plaintiff has failed to show how each of the document

requests are relevant to his case and how the requested doc-

uments will produce any genuine issue of material fact as

required by 56(f). Burlington Coat Factory Warehouse Corp.

v. Esprit de Corp 769 F.2d 919, 926 (2d Cir. 1985). Accord-

ingly, plaintiff’s motion for discovery of documents listed as

(a) through (b1) in his affidavit is denied without prejudice to

plaintiff renewing the motion, within twenty days of the date

of this opinion, after following the proper procedure to obtain

such discovery.

XII. CONCLUSION

Summary judgment is granted in defendants’ favor on all

claims except for plaintiff’s federal and New York State

age discrimination claims. Count II, IV, V, VI, and VII of

plaintiff’s amended complaint are dismissed. Although plain-

tiff is entitled to a trial to determine whether Carbide dis-

criminated against him on the basis of age, if he prevails his

94a

damages will be limited as he cannot recover damages for lost

wages.!?

Plaintiff’s motion for partial summary judgment for plain-

tiff on Counts I, II, III and V of his amended complaint is

denied. Plaintiff’s motion to strike the affidavit of Joel E.

Cohen, Esq. sworn to July 9, 1993 and a letter dated Decem-

ber 3, 1992 from the record, for further discovery pursuant to

Fed. R. Civ. P. 56(f) and sanctions against defendants pur-

suant to Fed. R. Civ. P. 11 is also denied. The parties shall

bear their own costs. The parties will appear before the Court

for a pre-trial conference on May 27, 1994 at 9 a.m. in Room

302.

IT IS SO ORDERED.

Dated: New York, New York

May 12, 1994

/s/ ROBERT P. PATTERSON, JR.

Robert P. Patterson, Jr.

U.S.D.J.

12 Compensatory and punitive damages are unavailable under

ADEA. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143 (2d Cir.

1984).

95a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

92 CIV. 6411 (HB)

RICHARD HALL LIGHTFOOT,

Plaintiff,

—against—

UNION CARBIDE CORPORATION, A.W. LUTZ, PRESIDENT,

INDUSTRIAL CHEMICALS DIVISION and W.E. SHACK-

ELFORD, VICE PRESIDENT, INDUSTRIAL CHEMICALS

DIVISION,

Defendants.

AFFIDAVIT OF RICHARD H. LIGHTFOOT

STATE OF NEW YORK )

) ss.:

COUNTY OF NEW YORK )

RICHARD H. LIGHTFOOT, being duly sworn, deposes and

says:

1. I am the plaintiff in the above-entitled action.

2. This affidavit is respectfully submitted in support of my

motion pursuant to 28 U.S.C. §§ 144 and 455(b)(1), to dis-

qualify Hon. Harold Baer, Jr., from conducting any further

proceedings in the above-entitled litigation on the grounds

that he has personal bias and prejudice against me and, in

addition, has personal knowledge of disputed evidentiary

facts, and on the further grounds that he should disqualify

96a

himself as required under 28 U.S.C. § 455(a) because his

impartiality might reasonably be questioned.

3. The affidavit is also submitted in support of my motion

pursuant to Fed.R.Civ.P. 59(e) to alter or amend the Order and

Opinion of Judge Baer dated October 24, 1995, and entered

on October 26, 1995, by vacating it as a result of the fore-

going circumstances, and also because it constitutes an

infringement of my Constitutional and statutory jury trial

rights.

4. The facts and reasons for my belief that bias or preju-

dice exists on the part of Judge Baer such as to require him to

proceed no further in this litigation pursuant to 28 U.S.C.

§§ 144 and 455 are set forth below:

(a) Shortly prior to the trial of the case, on June 21,

1995, Judge Baer met separately with me and my

counsel for the purpose of attempting to compel me

to agree to settle the case.

(b) At that conference, Judge Baer indicated distaste

for the case and said in substance that it was a petty

case that should be settled.

(c) It appeared to me that Judge Baer had also formed

a dislike for the case because it had been reassigned

to him from Judge Patterson just on the eve of when

it was scheduled to be tried, causing a severe dis-

ruption to Judge Baer’s schedule, as evidenced by

the fact that the trial had to be conducted under

severe time constraints in tandem with an important

criminal case before him.

(d) In addition it appeared to me, based upon what he

said, that Judge Baer felt upset by the fact that he

had inherited a case with a litigation history and

substantive rulings by Judge Patterson that Judge

Baer felt obligated to apply in the trial of the case

even though Judge Baer might not have so ruled

himself and even though such rulings virtually

(e)

(f)

(g)

(h)

(i)

G)

97a

guaranteed that there would be a highly contested

appeal, and perhaps the necessity for a new trial.

However, Judge Baer failed to even follow Judge

Patterson’s rulings, as he stated that he was required

to do, because it was Judge Baer himself who dis- .

missed my Age Discrimination in Employment Act

claim, not Judge Patterson, as Judge Baer admitted

in his Opinion and Order dated October 24, 1995, at

pp. 2-3, thus undercutting my claim for recovery of

attorney’s fees which are mandatory in ADEA cases

under Hagelthrone v. Kennecott Corporation, 710

F.2d 76 (2d Cir. 1983).

During the discussion, Judge Baer indicated a neg-

ative point of view regarding the merits of my claim

for age discrimination and made statements about

them that were highly derogatory.

Judge Baer then put pressure on me to accept a set-

tlement amount of $100,000 that he indicated that

he had reason to believe that he thought the other

side would accept.

The settlement figure that Judge Baer attempted to

compel me to accept would have entirely destroyed

any economic benefit to me in having prosecuted

this litigation, as the Judge very well knew.

In response I told Judge Baer that I had a lot more

invested than that in the case and that I couldn’t

possibly settle on those terms particularly since I

was convinced that I had been repeatedly discrim-

inated against by defendants on the basis of age.

I also stated specifically to Judge Baer with what I

had invested in the case in my time, effort, and

expenses, I wanted a jury to hear my case and make

its own determination.

(k)

(1)

(m)

(n)

(0)

(p)

(q)

(r)

98a

I felt quite strongly about this and repeated several

times my desire for a jury determination as to my

claims.

Judge Baer responded in a hostile manner to me

both verbally and in his demeanor.

Moreover, Judge Baer indicated to me that he did

not think that it was “reasonable” for me to want to

go to the jury and that I should settle for the figure

that he attempted to impose upon me.

The figure that Judge Baer attempted to impose

upon me was the outgrowth of his separate con-

versations in another room with defendants’ repre-

sentatives and counsel.

In the course of such discussions, Judge Baer obvi-

ously was influenced to form an opinion as to the

value of the case as a result of ex parte communi-

cations which was contrary to my interests and also

contrary to what I had been advised by my own

counsel.

When I told Judge Baer that I desired to have the

jury determine the matter Judge Baer reacted with

hostility to me personally, and abruptly terminated

the discussions.

The ensuing events demonstrated his personal prej-

udice against me because on June 23, 1995, he uni-

laterally determined that I was not entitled to claim

pretermination damages on statute of limitation

grounds despite the fact that the three-year period

under which such claims could be made had not

expired at the time of my termination. (TR 6/21/95,

p. 54) His action in doing so was in furtherance of

his attempt to force me to settle for a small amount.

‘Moreover, Judge Baer dismissed my claim under

the Age Discrimination in Employment Act, even

(s)

(t)

(u)

99a

though Judge Patterson specifically refrained from

doing so, and attempted to cause prejudice by incor-

rectly stating that I had agreed that the “ADEA

cause of action must be dismissed,” (TR 6/23/95,

pp. 2-3) an incorrect statement that my counsel had

to point out to the Judge, to his displeasure, as is

evidenced in his action then and thereafter (TR

3-4), the purpose of which was to further compro-

mise and reduce my claim by eliminating the basis

upon which I sought to recover attorney’s fees, as

shown in his decision of October 24, 1995, (a copy

of which is annexed hereto as Exhibit A).

Again, the evident purpose of Judge Baer was to

cause prejudice to me by reducing the value of my

lawsuit.

In addition, because I had not agreed to the very

strong pressure that he asserted on me to settle the

lawsuit, his Order and Opinion of October 24, 1995,

sets forth a damage figure of $75,000, only 10 per-

cent of what the jury determined, and is also less

than the amount that Judge Baer sought to compel

me to settle for on June 21, 1995, namely,

$100,000.

Because I refused to settle for $100,000 it is appar-

ent to me that Judge Baer’s figure of $75,000 was

intended to punish me for exercising my jury trial

rights instead of clearing his docket by settling the

case. Judge Baer intended to deprive me of the ver-

dict which the jury returned and put a value of the

case which was 25 percent less than what he him-

self indicated would have been in his view a viable

settlement figure after I had gone through the fur-

ther time, effort, expense and risk of proceeding to

try the case over an extended period of time.

(v)

(w)

(x)

(y)

(z)

(aa)

100a

Thus it is apparent that Judge Baer’s Order and

Opinion was not arrived at in good faith but an

outgrowth of prejudice against me and should be

vacated for that reason.

The punitive purpose of the Order and Opinion

dated October 24, 1995, is made clear by the fact

that, at the time he issued that Order and Opinion,

he already was aware, based upon my attorney’s

fees application, that the amount that I had

invested in the case for attorney’s fees was sub-

stantial, since nearly 3,000 hours of attorneys’

time was involved.

Judge Baer therefore knew, based upon what I had

said at the conference on June 21, 1995 that, con-

sidering what I had invested in the case in attor-

ney’s fees, I would be a substantial loser, near the

end of my resources, at his figure of $75,000, after

the trial,

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