# Appendix — Lightfoot v. Union Carbide Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0899%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1999 - **Citation:** 528 U.S. 817 ## Text 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SECOND CIRCUIT No. 98-7166 Filed March 1, 1999 Issued as Mandate March 22, 1999 SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER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 judgmen [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0899%3A2. Public record. Not legal advice.