Petition for Writ of Certiorari — Norton v. Sam's Club

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BR ATL sep 15 19%

OFEICE OF THE CLERK

No.

In The

Supreme Court of the United States

October Term, 1998

JOHN C. NORTON,

Petitioner,

VS.

SAM’S CLUB, WAL-MART CORP., WAL-MART STORES,

INCORPORATED,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS

FOR THE SECOND CIRCUIT

*THEODORE S. KANTOR, ESQ.

Bilgore, Reich, Levine, Kroll & Kantor

950 Reynolds Arcade Building

16 East Main Street

Rochester, New York 14614

(716) 262-4700

Attorney for Petitioner

*Counsel of Record

11 Centre Park (2441) 107 Delaware Avenue — Suite 81

Rochester, New York 14614 Buffalo, New York 14202

(716) 232-6920 Fhe Daily Record (716) 847-2984

QUESTIONS PRESENTED FOR REVIEW:

a. Whether the Court of Appeals

exceeded its appellate jurisdiction and/or

legal authority by reaching and determining

the sufficiency of evidence supporting the

jury verdict where Wal-Mart failed to

preserve said issue for appellate review in

accordance with Rule 50 (b) of the Federal

Rules of Civil Procedure?

2. Whether the Court of Appeals,

assuming arguendo it had jurisdiction and/or

authority to reach and determine the issue

of the sufficiency of the evidence presented

to the jury, nonetheless substituted its own

judgment for that of the jury and failed to

accord the jury’s verdict with sufficient

deference given the existence of disputed

factual issues as well as issues pertaining

to the credibility of witnesses’ and

evidence?

3. Whether the verdict of the jury and

the Judgment and Amended Judgment of the

trial Court were within the fair province of

the jury and the Court to decide and were

adequately supported by the evidence, the

law, the facts, as well as sound principles

of due process of law such that said

judgments of the trial Court should be

reinstated?

(i)

LIST OF ALL PARTIES TO THE PROCEEDINGS IN

THE COURT BELOW WHOSE JUDGMENT IS SOUGHT TO

BE REVIEWED:

The names of all parties to the

proceedings in the Court below whose

judgment is sought to be reviewed herein are

as set forth in the caption of the case, and

are as follows:

Join C. Norton, Plaintiff-Appellee

(Petitioner herein).

a. Sam’s Club, Wal-Mart Corp., Wal-Mart

Stores Inc., Defendants-Appellants (Wal-

Mart) (Respondent herein).

TABLE OF CONTENTS:

Page

QUESTIONS PRESENTED FOR REVIEW . (i)

LIST OF ALL PARTIES TO THE

PROCEEDINGS IN THE COURT BELOW

‘WHOSE JUDGMENT IS SOUGHT TO BE

REVIEWED * . + . 7 * © * . . * . (ii)

TABLE OF CONTENTS .--+++ +s » (iii)

TABLE OF AUTHORITIES ..-++s: > (v)

OPINIONS BELOW ..+-+++-+s+ © 2 * 1

STATEMENT OF JURISDICTION... - 3

U.S. CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, RULES AND

REGULATIONS INVOLVED ..-.+ += - 4

STATEMENT OF CASE .-+-e+«-+ 2% © 5

REASONS FOR GRANTING THE PETITION: 7

ARGUMENT :

POINT ONE:

THE COURT OF APPEALS LACKED THE

JURISDICTION AND THE LEGAL

AUTHORITY TO REACH THE ISSUE OF

(iii)

SUFFICIENCY OF THE EVIDENCE

BASED UPON THE FAILURE OF THE

APPELLANT TO PRESERVE PROPERLY

SAID ISSUE FOR APPEAL BY ITS NOT

MAKING A FRCP RULE 50(b) MOTION

TO THE TRIAL COURT PRIOR TO

APPEAL. . + * ° * e . o * . o > 7

POINT TWO: :

THE COURT OF APPEALS

MISAPPREHENDED ITS ROLE IN NOT

PROPERLY DEFERRING TO THE JURY

ON FACTUAL MATTERS AND MATTERS

PERTAINING TO ASSESSING THE

CREDIBILITY OF WITNESS WHEN IT

SUBSTITUTED ITS JUDGMENT FOR .

THAT OF THE JURY WHEN ADEQUATE

BASIS EXISTED VIEWING THE RECORD

AS A WHOLE IN A LIGHT MOST

FAVORABLE TO SUPPORT THE JURY’S

Vanes © be 6 oe 6S S'S es US 14

POINT THREE:

THE VERDICT OF THE JURY AND THE

JUDGMENT AND AMENDED JUDGMENT OF

THE TRIAL COURT WERE WITHIN THE

FAIR PROVINCE OF THE JURY AND

THE TRIAL COURT TO DECIDE AND

WERE ADEQUATELY SUPPORTED BY THE

EVIDENCE, THE LAW, THE FACTS, AS

WELL AS SOUND PRINCIPLES OF DUE

PROCESS OF LAW SUCH THAT SAID

JUDGMENTS OF THE TRIAL COURT

SHOULD BE REINSTATED ..... 20

eee a ae ae ee ee ee ee ee ee 25

APPENDIX «* - . © ” . 7 . + + . 7 Al -A66

(iv)

TABLE OF AUTHORITIES:

Cases;

996. 2d 111 (Sth Cir.) . ve

Borger v. Yamaha Int’) Corp., 625

F. 20 390 394-395 (2d Cir. 1980)

Co., 330 U.S. 212, 214-218

Sy SR ee oe ee ae ee

, 114 F.

3d 1332 (2d Cir. 1997)

Hartford R.R., 344 U.S. 48, 50

(1952) aa ee ee

j ; ane 7. 36

210, 215 (2d Cir. 1997) ;

ny" aan Cos

Caterers Corp., 517 U.S.

134 L. Ed. 2d 433 (1996)

Aiken, 460 U.S. 711, 716 (1983)

’

‘

509 U.S. 502, 506 (1993) .- -

132 F. 3d 869 (2d Cir. 1997) 6

, 45 F. 3d 634, 639

Cir. 1995) var eat)

(v)

(2d

15

21

Cases: Page

, a 7.

105 (2d Cir. 1994) “Ge ee ey 17, 24

Statutes:

26 Gite. BRO G tee 6 OR Re 2

(9008.0, TO fs eee er es 2

29 U.S.C., 621,623, 626, 630, 631,

et seq. Rane ee eS eS 4, 6

ADBA ss. vo * See we eee 4, 6,

14,

18,

20,

23, 24

FRCP Rude SO(B). 2 « 2 see ss ta F

, s, 6,

7s. Oe

9,

10,

12, 18

Federal Buie®e . «3 Fe 8 14

Rule 10 et seq. Rules of the

Supreme Court of the United

States <eeort ee ee 4 2

(vi)

OP{NIONS BELOW:

Attached hereto and made a part hereof,

as the Appendix to this Petition for a Writ

of Certiorari, are the following opinions

and decisions of the lower courts.

- Initial Judgment of the U.S. District

Court, Western District of New York

following the jury verdict in favor of the

plaintiff entered Tebruary 6, 1997. (Al-

A2).

2. Amended Judgment of the U.S. District

Court granting plaintiff's post-trial motion

for attorney’s fees and front pay entered

May 9, 1997. (A3-A5).

3. Decision and Order of the U.S. District

Court granting the plaintiff Attorney’s

Fees, Front Pay and Costs, entered May 9,

1997. (A6-Al14).

4. Decision of the Court of Appeals for the

Second Circuit reversing the trial court

entered May 29, 1998, printed at 145 F.3d

114. (A15-A24).

Ss. Mandate issued by the Court of Appeals

for the Second Circuit to the Northern

District of New York entered July 23, 1998.

(A25-A26) .

6. Decision of the Court of Appeals for the

Second Circuit denying plaintiff's motion

for a rehearing and for a suggestion of En

Banc review entered July 16, 1998. (A27-

A28).

i This Court is believed to have

jurisdiction to review the judgment in

question by a Writ of Certiorari based upon

28 USC 1254 (1), 28 USC 2101. and Rule 10,

et seq. of the Rules of the Supreme Court of

the United States.

STATEMENT OF JURISDICTION:

1. The date of entry of the decision

of the Court of Appeals for the Second

Circuit which is sought to be reviewed

herein is May 29, 1998.

2. The date of entry of the order

denying a rehearing and the suggestion for

an En Banc review is July 16, 1998.

3. The date of entry of the Mandate

issued erroneously by the Court of Appeals

to the U.S. District Court of the Northern

District of New York is July 23, 1998.

Pe ae eee Le ee, OR

De ee eee. Se ee ae Se em a, pea

U.S. CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, RULES and REGULATIONS INVOLVED:

The United States Statutes involved

herein are, as follows:

1. The Age Discrimination in

Employment Act, as amended, 29 USC 621, 623,

626, 630, 631, et seq.:

- - Federal Rules of Civil Procedure

Rule 50 (b).

STATEMENT OF THE CASE:

The review of the judgment of the Court

of Appeals for the Second Circuit is sought

because that Court has rendered a decision

in conflict with the decisions of other

Circuit Courts of Appeal dealing with the

same matter, i.e. both by reaching the issue

of the sufficiency of the evidence in the

absence of the appellant “Wal-Mart”

preserving said issue for appeal by failing

to comply with FRCP Rule 50 (b) and by

notwithstanding this failure to preserve

said issue on appeal by substituting its

judgment for that of the jury.

In addition, the Second Circuit in this

case, has also decided important questions

of federal law pertaining to both their own

appellate jurisdiction and the sufficiency

of the evidence in age discrimination in

employment actions which are in conflict

with the decisions of this Supreme Court of

the United States and the Second Circuit

Court of Appeals.

Moreover, the Second Circuit Court of

Appeals has departed from the accepted and

usual course of determining judicial

proceedings following the determination by a

jury ‘in a fact-based dispute, where the

defendant-appellant in the Court of Appeals

(i.e., “Wal-Mart”), failed to preserve

properly the very issue of sufficiency of

the evidence such that the Second Circuit

should never have reached this as an issue

wes '

ras

for determination.

Also, this Court’s powers of

supervision of lower court decisions should

be exercised in this case because the

defendant received a fair trial and fair

charge to the jury which Wal-Mart did not

object to on appeal. The Jury fairly

weighed all of the evidence which was

presented to it including making assessments

of the credibility of witnesses and decided

in the plaintiff’s favor in what was

entirely a fact-based case. The amount of

damages awarded to the plaintiff was both

fair and reasonable. Moreover, the failure

of the defendant-appellant to preserve

properly the issue of the sufficiency of the

evidence in accordance with FRCP 50 (b)

should have precluded the Court of Appeals

from making an adverse determination against

said plaintiff on appeal based upon a

selective marshaling of the evidence and a

substitution of its own judgment for that of

the duly constituted unanimous jury in

violation of the applicable substantive and

procedural laws pertinent hereto.

The basis for federal jurisdiction in

the Court of the first instance is the Age

Discrimination in Employment Act, 29 USC

621, et seq.

[RERRISETARENETNeORtieGAoeieeonmEErmumem=mrneneencetc ee ene eee eee

REASONS FOR GRANTING THE PETITION:

ARGUMENT: POINT ONE:

THE COURT OF APPEALS LACKED THE

‘JURISDICTION AND THE LEGAL AUTHORITY TO

REACH THE ISSUE OF SUFFICIENCY OF THE

EVIDENCE BASED UPON THE FAILURE OF THE

APPELLANT TO PRESERVE PROPERLY SAID ISSUE

FOR APPEAL BY ITS NOT MAKING A FRCP RULE

50(b) MOTION TO THE TRIAL COURT PRIOR TO

APPEAL.

This Court has held that an

intermediate appellate court has neither the

legal power nor the legal authority to

render a determination different and/or

contrary to that of the jury verdict in the

absence of a timely and proper motion by the

appellant seeking in the first instance in

the trial court a judgment as a matter of

law notwithstanding the verdict. See e.g.

Johnson v. New York, New Haven & Hartford

R.R.. 344 U.S. 48, 50 (1952); Cone v, West

Virginia Pulp & Paper Co., 330 U.S. 212,

214-218 (1947); FRCP 50 (b).

By not making such a motion “Wal-Mart”

failed to preserve this issue for the

underlying appeal and waived its right to

have such an argument heard and decided by

the intermediate appellate court. This is

well settled law in this Court as well as in

other intermediate appellate courts and the

Second Circuit itself. Please see e.g.,

Allied Bank-West. N.A. v. Stein, 996 F. 2d

111 (Sth Cir.), wherein the Court of Appeals

therein stated that such a failure by the

appellant to make such a FRCP 50 (b) motion

was “virtually jurisdictional.” The Second

Circuit has noted that in order to preserve

an argument that a verdict is against the

weight or sufficiency of the evidence a FRCP

Rule 50 (b) motion is “mandatory,” in that

“to preserve for appeal a challenge to the

denial of a pre-verdict motion for judgment

as a matter of law, a movant must renew that

motion after the verdict.” (Emphasis added) .

Please see, Varda, Inc, V. Insurance Co, Of

North Am., 45 F. 3d 634, 639 (2d Cir. 1995).

In this case, the appellant totally failed

to preserve the appellate jurisdiction

regarding the sufficiency of the evidence as

it failed to make such a post-verdict Rule

50 (b) motion. Appellant failed to make

such a motion totally, i.e., either orally

at trial or in writing within ten (10) days

after trial as prescribed by section 50 (b).

Moreover, this appellant even failed to

request a new trial following the jury

verdict in favor of the plaintiff in this

case. Please see the Second Circuit’s

determination in Borger vy. Yamaha Int’1]

Corp... 625 F.2d 390 394-395 (2d Cir. 1980),

wherein that: Court held that in the absence

of such a motion by the appellant the

appellate court was without power to direct

the District Court to enter judgment

contrary to the one which the District Court

permitted to stand.

It obviously makes good sense to

require such a post-verdict motion at the

trial stage of the proceedings in order to

permit the trial judge who viewed the

evidence first-hand an opportunity to

address the jury verdict and any issues

pertaining to the sufficiency of the

evidence which went to the jury at a stage

in the proceedings before appellate

jurisdiction is invoked. As this Court and

the Second Circuit has held, such a motion

by the appellant is more than a mere

“formality.” Borger, supra; Cone. supra.

The failure on the part of Wal-Mart to make

such a motion creates a situation where

appellate jurisdiction should not have been

invoked to address an issue which was not

presented to the trial court and not

preserved for appeal. As aforesaid, this is

a matter of well settled law in all of the

Courts which have addressed this issue

including this Supreme Court of the United

States.

Moreover, the fatal error herein is

totally that of Wal-Mart and in no way was

the fault of the plaintiff who was satisfied

with the results of the jury’s verdict.

In this case it is respectfully

submitted that the Second Circuit’s reversal

of the jury verdict by substituting its own

judgment as to the sufficiency of the

evidence for that of the jury, at all, and

in the absence of such a Rule 50 (b) motion

by the defendant, has further been

exacerbated by the intermediate appellate

court’s attempt to blame the plaintiff-

appellee for waiving such an issue when

absolutely none of the cases upon which that

Court relies upon requires an appellee to

raise or preserve such an issue on appeal.

It is respectfully submitted that the

well settled law on this point is as it

should be that the appellee is under no

obligation to preserve this issue, but

rather it is the obligation of the appellant

only under Rule 50 (b), if it wants an

appellate review of the sufficiency of the

evidence, to preserve properly this issue

for appeal by making a Rule 50 (b) motion.

This “Wal-Mart” totally failed to do, in

this case, as aforesaid.

Equally importantly, it is respectfully

submitted that it is fundamentally improper

to reward the party who failed to preserve

the issue it seeks appellate review on (i.e.

Wal-Mart) and to punish the plaintiff-

appellee who won a jury verdict on a fair

preponderance of the evidence because

according to the Second Circuit, the

appellee’s brief only briefly “mentioned”

this failure by the appellant. For the

Second Circuit to overlook the fatal defect

of the appellant who failed to make the Rule

50 (b) motion at all and to blame the

appellee for only “casually” mentioning it

as a grounds not only to reach this issue

but to decide it against the plaintiff is

palpably unfair and violates basic notions

of fundamental fairness and due process of

10

tn

law.

The Second Circuit, in an argument

raised for the first time by the appellant

on appeal, substituted its judgment for that

of a duly constituted Jury. Such a result

flies in the face of well settled procedural

as well as substantive law, is not in

conformity with the prior decisions of this

Court, other Courts of Appeal, nor the

Second Circuit itself. Cone. supra; Varda.

Supra.

Notwithstanding the Second Circuit’s

flawed reasoning, it must also be noted that

the Second Circuit is simply wrong because

the plaintiff-appellee properly raised this

issue in its brief to the intermediate

appellate court, which it had no obligation

to do in any event. That Court’s

jurisdiction is not an issue which the

appellee can either bestow or waive.

Moreover, there was no cross-appeal in this

matter wherein the appellee was seeking

relief other than the mere affirmance of the

trial court based wpon a jury verdict

rendered in its favor. The Second Circuit,

it is respectfully submitted, has tortured

the reasoning which requires that the party

seeking relief on an issue such as the

sufficiency of the evidence following the

rendering of a jury verdict against it is

required to preserve such an issue for

appeal by following the relatively simple

and straightforward statutorily prescribed

procedure of making the proper Rule 50 (b)

11

motion in the trial court before an appeal

on such an issue can be had.

The Second Circuit Court of Appeals has

erroneously stretched the law with respect

to FRCP 50(b) beyond its reasonable

interpretation to save the wrongdoer, who

according to the jury wrongfully

discriminated in this case, and who

procedurally failed to preserve its:

appellate arguments and is the only party

that has truly waived its rights in this

regard.

Wal-Mart received a proper Charge on

the law and a fair trial. The burdens of

proof were properly explained to the jury by

the trial judge and they rendered a fair and

reasonable verdict in favor of the

plaintiff. The only significant procedural

error which occurred herein was that of Wal-

Mart, itself. That is, Wal-Mart failed to

make a post-trial motion in accordance with

FRCP 50 (b).

The appellant in the Second Circuit,

Wal-Mart, should not be rewarded for its

errors, for its failure of proof, and for

its failure to convince the jury by the

complete and utter creation of an non-

meritorious fiction of a so-called waiver

by the appellee when no such waiver either

occurred or was intended.

It is respectfully submitted that such

a result flies in the face of the law, the

12

facts of this case, and fundamental due

process of law and justice. This Court

should rectify the error of the intermediate

appellate court and either grant this

petition for a Writ of Certiorari or

reinstate the amended judgment in the trial

court below.

13

POINT TWO:

THE COURT OF APPEALS MISAPPREHENDED ITS

ROLE IN NOT PROPERLY DEFERRING TO THE JURY

ON FACTUAL MATTERS AND MATTERS PERTAINING TO

ASSESSING THE CREDIBILITY OF WITNESS WHEN IT

SUBSTITUTED ITS JUDGMENT FOR THAT OF THE

JURY WHEN ADEQUATE BASIS EXISTED VIEWING THE

RECORD AS A WHOLE IN A LIGHT MOST FAVORABLE

TO SUPPORT THE JURY’S VERDICT.

It is respectfully submitted that the

decision of the Second Circuit which

substituted its judgment on appeal for that

of a duly constituted unanimous jury is

especially egregious in this case where, as

aforesaid, the appellant in that Court

failed to even preserve properly its own

appellate arguments by making a post-verdict

motion in accordance with the Federal Rules.

The ADEA provides for Jury verdicts in

fact-based cases such as this one involving

circumstantial evidence of age

discrimination as this one clearly does. It

certainly cannot be said, as the Court of

Appeals has apparently decided, that as a

matter of law, that no reasonable jury could

have determined all of the evidence before

it in favor of the plaintiff as this jury

did. Cf. St. Mary’s Honor Ctr, v. Hicks,

509 U.S. 502, 506 (1993).

The Court of Appeals has reached a

bizarre result which is inconsistent with

the law and totally out of sync with itself

14

in other cases, the decisions of other

Circuit Courts of Appeal, as well as the

Supreme Court of the United States.

A manifest injustice has been created

when the Court of Appeals can say that Wal-

Mart’s conduct in this case may be

considered to be an affront to dignity,

offensive, indecent, wrong, wicked, or even

stupid but that based upon the Court of

Appeals own tortured reasoning and selective

marshaling of the evidence that such

conduct, notwithstanding the unanimous

verdict of the jury to the contrary, is not

discriminatory. Said reasoning obviously

flies in the face of the jury’s province and

the sound determination about this exact

issue which was made by the jury, as the

sole trier of fact, after seeing and hearing

all of the witnesses and assessing their

credibility. Postal Service Bd, of

Governors v. Aiken. 469 U.S. 711, 716

(1983); Luciano v. Olsten Corp... 110 F. 3d

$30, “325° (28 Cir. 1997).

Moreover, the Court of Appeals’

reasoning apparently fails to recognize that

these factual issues are not mutually

exclusive. That is, it can well be said in

this case that the conduct of the defendant -

appellant, Wal-Mart, herein was not only

stupid, indecent, offensive, an affront tc

dignity, wrong and wicked but that it was

also discriminatory as well. That is what

this jury decided and such a determination

by the jury stands in uniformity with all

a9

the evidence and all of the reasonable

inferences to be drawn therefrom. The Court

of Appeal’s contrary decision which

selectively marshals only some but not all

of the facts does not. Cf. Fisher v. Vassar

College, 114 F.3d 1332 (2d Cir. 1997).

Moreover, the Court of Appeals had

before it evidence in the record which the

jury did not have such as age derogatory

comments made by the plaintiff’s supervisors

which the plaintiff testified to in a pre-

trial affidavit but which evidence was not

heard by the jury. Even absent hearing this

evidence the jury reached the verdict which

it did in favor of the plaintiff and against

the defendant. Viewing the entire Record as

a_whole ina light most favorable to the

plaintiff, which the Court of Appeals should

have done, had the issue of the sufficiency

of the evidence been properly preserved by

Wal-Mart, which it was not, provided more

than adequate basis to support the jury’s

determination herein.

This Court should support the jury

verdict which agreed in favor of the

plaintiff by a unanimous 8-0 vote.

Even if one were to concede that the

evidence in this case could have gone either

way, based upon the jury’s determination, it

is not true that this Court or the Second

Circuit could _tind that no reasonable jury

could have found the way this jury did.

This Court would do a disservice to the law

16

and to our system of justice by overlooking

all of the facts in this case, as well as

the procedural errors committed by the

defendant-appellant Wal-Mart, by upholding

the erroneous determination made by the

intermediate appellate court. See, e.g.,

Woroski_ v. Nashua Corp... 31 F. 3d 105 (2d

Cir. 1994).

The intermediate appellate court

totally failed to credit the plaintiff with

a view of the evidence in a light most

favorable to him when it ignored several

important points which a jury could properly

have considered as evidence of

discrimination which obviously the

intermediate appellate court did not.

Stratton v. Department of Aging, 132 F. 3d

869 (2d Cir. 1997); Woroski. supra.

For example, the evidence testified to

by a disinterested former employee of Wal-

Mart, a Mr. Joseph Pasnak, demonstrated that

the senior manager that was present when Mr.

Norton was terminated was also present in

the State of Maine when Mr. Norton again was

sought to be made a negative example of, as

the eldest employee present at that time,

and for no other apparent reason, as

testified to by Mr. Pasnak, except for his

age. The evidence that said senior manager

who was also present in the Henrietta, N.Y.

store when Mr. Norton was terminated could

have been properly credited by the jury as a

further supportive factor weighing in favor

of the position of the plaintiff. It

17

obviously was not even considered by the

Court of Appeals.

Also, this Court should be aware that

when the plaintiff's store manger, Mr.

‘Rexrode, testified at trial, on more than

one occasion under cross-examination, he

appeared less than truthful. His character,

demeanor and veracity in general were for

the jury to determine and these are

additional proper reasons why the verdict

should not have been disturbed. In any case

and certainly a close case, assuming this

one was, credibility is obviously a key

ingredient. Here, the defendant’s witness

suffered from a lack of credibility. While

this might not have been known by the Court

of Appeals because it was not present at the

trial to make these judgments, it should not

be overlooked by this Court at this time.

It is also a key reason why a FRCP Rule 50

(b) motion is required to be made to the

trial court before appellate jurisdiction

attaches to an issue of sufficiency of the

evidence.

The assessments of the jury should be

paramount in a case such as this. These are

additional reasons why this Court should

apply the well-settled law of deferring to

the determination of disputed fact based

issues under the ADEA, as elsewhere, under

federal law, to the jury’s determination,

which in this case was a unanimous jury

determination of 8-0 in favor of the

plaintiff.

_—— ee

At the very least, it is respectfully

submitted that a new trial should be ordered

so that all of the testimony and evidence

can be presented to jury, although it is the

petitioner’s primary position herein that

this verdict should be reinstated and the

Second Circuit Court of Appeals decision of

May 29, 1998 should be reversed.

19

POINT THREE:

THE VERDICT OF THE JURY AND THE

JUDGMENT AND AMENDED JUDGMENT OF THE TRIAL

COURT WERE WITHIN THE FAIR PROVINCE OF THE

JURY AND THE TRIAL COURT TO DECIDE AND WERE

ADEQUATELY SUPPORTED BY THE EVIDENCE, THE

LAW, THE FACTS, AS WELL AS SOUND PRINCIPLES

OF DUE PROCESS OF LAW SUCH THAT SAID

JUDGMENTS OF THE TRIAL COURT SHOULD BE

REINSTATED.

Under our system of justice and under

the ADEA, the verdict of the jury should be

allowed to stand. Stratton v. Department of

Aging. supra.

The plaintiff proved at trial in this

case that the issues of age were prevalent

throughout the employment of the plaintiff

at Sam’s Club, “Wal-Mart.” The intermediate

appellate court misapprehended or overlooked

critical facts and all of the testimony in

favor of the plaintiff in their decision in

this case.

Further support for the verdict exists

in that the Court of Appeals failed to give

cognizance or even mention that’ the

Plaintiff testified at trial that when he

was hired age was made a factor in the

company’s determination to hire him as a so-

called older, more mature individual who

could relate to the corporate individuals

and executives that he was going to be asked

to sell Sam’s Club corporate memberships to.

20

Moreover, the Court of Appeals failed

to give recognition to the reasonable

inferences to be drawn by the jury that the

facts of this case made it clear that the

only persons hired and promoted into

positions of management and supervision in

the Rochester/Henrietta, N.Y. store where

the plaintiff was employed were

significantly younger individuals than was

the plaintiff. The discrepancy in ages

between management that made the termination

decision and employees such as the plaintiff

who were terminated should have been a

factor which the Court of Appeals credited

towards the support of the verdict of the

jury rather than ignore, distinguish or

belittle ac. See, e.g., OQ’ Connor v.

Consolidated Coin Caterers Corp., 517 U.S.

. 134°. Ba. 24 433 (1996).

Also, the Court of Appeals failed to

give any recognition to the weak statistical

evidence in this case, as produced by the

defendant themselves. That is, the

defendant’s store manager testified that

defendant’s management was aware of the

plaintiff's age as well as the ages of all

other employees by reason of their own

record-keeping. More importantly, the jury

could properly have rejected the defendant’s

arguments concerning the statistical amount

of employees over the age of 40, which proof

backfired against the defendant upon cross-

examination, when the defendant’s, so-called

statistical evidence revealed that only 13%

of their whole staff was over 40 years of

21

age.

The Court of Appeals should have

deferred to the jury in this regard and

permitted the jury to use its own common

knowledge and common sense in assessing this

evidence. The Court of Appeals failed to

consider this evidence at all in its

reversal. The plaintiff argued at trial

that even without a statistician which the

defendant failed to produce the jury should

have been able to use its own common

experiences and common sense to assess the

Significance or the lack thereof of the

defendant’s proof, in... Sawn . of . he

plaintiff, because of the relatively paltry

size of the defendant’s over-40 population

in its workforce in the Rochester store from

which the plaintiff was terminated. That

is, that such a relatively paltry-sized

over-40 population in its

Rochester/Henrietta store reflected a much

smaller percentage than that of the

workforce in general, particularly in the

Rochester, N.Y. area, where this case was

tried and where the jury’s common sense

should be have been permitted to prevail.

Stratton v. Department of Aging, supra, An

inference of age discrimination by the jury

was properly permissible on this evidence.

Equally important, the facts of this

case revealed that the only person that was

ever covertly trailed by the plaintiff’s

store manager, Mr. Rexrode, in the type of

under-cover surveillance as involved herein

22

was the plaintiff himself. As the proof

indicated, the plaintiff was one of the

eldest, if not the eldest, employees in the

defendant’s store at the time he was

terminated. No one under the age of 40 was

ever terminated for any reason even remotely

suggesting such a similar treatment or was

ever covertly surveilled.

This fact alone, and certainly in

addition to all of the other facts which the

Court of Appeals failed to consider or

credit to the plaintiff, properly

demonstrated that the jury could very

reasonably have decided that the management

of Sam’s Club in Henrietta, N.Y. treated Mr.

Norton differently from its other employees

because of his age.

This was the very task which was fairly

and properly charged to the jury for its

determination and which the jury deliberated

upon and reached a verdict in favor of the

plaintiff. The jury could have and

apparently did consider this as evidence of

age discrimination. It is submitted that

the Court of Appeals in failing to give any

cognizance to this proof and erroneously

describing the plaintiff's proof as

constituting “thin air” violated the

plaintiff’s rights to have his case heard

and determined by a jury of his peers and

violated his rights to avail himself of the

remedial provisions of the ADEA and the

right to not only a have a trial by jury, as

set forth thereunder, but to have the

23

determination of the jury respected and

upheld.

As previously mentioned, the facts of

this case revealed that the only persons

that were ever terminated by Mr. Rexrode for

the so-called reasons involved herein were

over the age of 40, i.e., the plaintiff and

one other. Mr. Rexrode, himself an

individual in his mid-20's at the time of

this incident, never terminated a younger

individual on such a basis as the facts

involved herein demonstrated. This reveals

at least a circumstantial case of different

and discriminatory treatment for employees

over the age of 40 from that of employees

under the age of 40 which the Jury could

properly have considered. Woroski. supra;

Stratton. supra,

Thus, as set forth in this Petition and

throughout this Plaintiff’s case in general,

much more than “thin air” was involved in

this matter. Sufficient evidence under the

ADEA exists to support and reinstate this

jury verdict. This Court should grant this

Writ of Certiorari, as requested herein, and

reverse the decision of the Court of

Appeals.

24

CONCLUSION:

It is respectfully requested that this

Court grant the Petition for a Writ of

Certiorari to review the determination of

‘the Court of Appeals for the Second Circuit,

or in the alternative reinstate the amended

judgment of the U.S. District Court, or in

the alternative to grant a new trial, and

for such other and further relief as to the

Court may seem just and proper.

DATED: DEPTEMB eR +-1998

\/ a

THEODORE S. KANTOR, ESQ.

Bilgore, Reich, Levine,

Kroll & Kantor

Attorneys for Petitioner,

John C. Norton

950 Reynolds Arcade Building

16 E. Main Street

Rochester, N.Y. 14614

(716) 262-4700

25

APPENDIX

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOHN C. NORTON,

Plaintiff(s),

V. JUDGMENT IN A CIVIL CASE

SAM’S CLUB, WAL-MART CORP.,

Defendant (s) .

CASE NUMBER: 93-CV-6387T

Jury Verdict. This action came before

the Court for a trial by jury The

issues have been tried and the jury has

rendered its verdict.

Decision by Court. This action came to

trial or hearing before the Court. The

issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED that the jury

finds in favor of the plaintiff in the

amount of $30,000.00

s/Leigh Ann Lester _

(By) Deputy Clerk

FILED

S97FEB-6 PM 3:15

U.S. DISTRICT COURT

W.D.N.Y. ROCHESTER

A2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Norton

(Plaintiff (s)

v; 6:93-cv-06387

Sam’s Club

Defendant (s)

PLEASE take notice of the entry of a JUDGMENT

filed on 5/9/97, of which the within is a

copy, and entered 5/9/97 upon the official

docket in this case. (Document No. 34.)

Dated: Rochester, New York

May 9, 1997

RODNEY C. EARLY, Clerk

U.S. District Court

Western District of New York

2120 U.S. Courthouse

100 State Street

Rochester, New York 14614

Enclosure

TO: Theodore S. Kantor, Esq.

Michael J. Kanaley, Jr., Esq.

A3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOHN C. NORTON,

Plaintiff(s),

AMENDED

V. JUDGMENT IN A CIVIL CASE

SAM’S CLUB, WAL-MART CORP.,

WAL-MART STORES, INCORPORATED,

Defendant (s) .

CASE NUMBER: 93-CV-6387T

x Jury Verdict. This action came before

the Court for a trial by jury The

issues have been tried and the jury has

rendered its verdict.

Decision by Court. This action came to

trial or hearing before the Court. The

issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED that the jury

finds in favor of the plaintiff in the

amount of $30,000.00. Plaintiff is

entitled to attorney’s fees of $12,000;

front pay of $25,000; costs of $355.02

A4

for a total judgment of $67,355.02 plus

interest.

May 9... 1997 RODNEY C. EARLY

Clerk

s/Leigh Ann Lester

(By) Deputy Clerk

FILED

97MAY-9 PM 4:09

U.S. DISTRICT COURT

W.D.N.Y. ROCHESTER

34

AS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Norton

Plaintiff (s)

Vv. 6:93-cv-06387

Sam’s Club

Defendant (s)

PLEASE take notice of the entry of an ORDER

filed on 5/9/97, of which the within is a

copy, and entered 5/9/97 upon the official

docket in this case. (Document No. 33.)

Dated: Rochester, New York

May 9, 1997

RODNEY C. EARLY, Clerk

U.S. District Court

Western District of New York

2120 U.S. Courthouse

100 State Street

Rochester, New York 14614

Enclosure

TO: Theodore S. Kantor, Esq.

Michael J. Kanaley, Jr., Esq.

A6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOHN C. NORTON,

Plaintiff, DECISION

and ORDER

Vv.

93-CV-6387T

SAM'S CLUB, WAL-MART CORPORATION

Defendant.

INTRODUCTION

Plaintiff John C. Norton brought suit

against the defendant Sam’s Club, Wal-Mart

Corporation alleging violations of the Age

Discrimination in Employment Act, (“ADEA”),

and the New York State Human Rights Law. The

case came to trial on February 4, 1997, and

on February 6, 1997, the jury returned a

verdict in favor of the plaintiff in the

amount of $30,000.00. On February 7, 1997,

plaintiff moved for an award of front pay

pursuant to the ADEA, attorney’s fees, and

costs. While that motion was pending and on

April 22, 1997, plaintiff obtained a writ of

execution against the defendant to collect

the $30,000.00 judgment plus interest. Upon

A7

being served with the writ of execution,

defendant moved for an Order: (1) quashing

the writ as void for failure to name the

proper party; (2) staying all attempts to

execute on the judgment; and, (3) temporarily

restraining the Monroe County Sheriff's

Department from transferring to the plaintiff

$32,524.77 “seized” from Wal-Mart pursuant to

the writ. On May 6, 1997, plaintiff cross-

moved to amend the judgment to name Wal-Mart

Stores, Inc. as the defendant.

For the reasons set forth below, I

hereby grant plaintiff’s motion for an award

of attorney’s fees, costs, and front pay, and

award plaintiff $12,000.00 in attorney’s

fees, $355.02 in costs, and $25,000.00 in

front pay. Additionally, I grant plaintiff's

motion to amend the judgment. I deny

defendant’s motion to quash, and for a

temporary restraining order. Finally, I

grant defendant’s motion for a stay of the

proceedings to execute on the judgment.

DISCUSSION

I. Attorney's Fees

The ADEA provides that a prevailing

plaintiff may be entitled to reimbursement

for reasonable attorney’s fees. 29 U.S.C. §

626(b). Plaintiff moves for attorney’s fees

A8&

in the amount of $14,925.00, representing

99.5 hours of legal work at $150.00 per hour.

Defendant objects to plaintiff’s

documentation of the legal work claimed to

have been performed as vague, and undetailed.

Additionally, defendant alleges that some

charges are duplicative. A review of the

billing records indicates that some charges,

including charges related to plaintiff’s

attempts to receive unemployment insurance

and response to the court’s Order to Show

cause why the case should not be dismissed

for failure to prosecute, are unwarranted to

purposes of determining attorney’s fees

awardable in this litigation. Moreover, the

records are somewhat vague in that many

entries cover extended periods of time, in

one instance lasting as long as four months.

Taking into account the unwarranted charges

and the vagueness of the records, I find that

a 20% reduction of plaintiff’s request for

attorney’s fees is warranted, and that

plaintiff is entitled to an award of

$12,000.00 for legal expenses incurred.

Il. Costs

Rule 54(d) of the Federal Rules of Civil

Procedure provides in relevant part that

costs other than attorney’s fees may be

awarded to the prevailing party unless

otherwise directed by the court. Plaintiff,

as the

Ag

prevailing party in this action, is entitled

to costs, and accordingly, I grant

plaintiff’s motion for an award of costs in

the amount of $355.02.

III. Front Pay

Pursuant to the ADEA, a plaintiff that

has proven his case of age discrimination may

be entitled to damages of front pay. 29

U.S.C. § 626 (West 1985). The trial court

awards front pay in lieu of reinstatement.

Rose vy. tIreco, Ing,, 872 F.Supp. 1127, 1135

(N.D.N.Y. 1994). Such an award may not be

unduly speculative, and must be reduced to

the extent that damages could have been

mitigated. Id. (citations omitted).

In the instant case, plaintiff was

earning approximately $17,000.00 per year

while employed at Wall-Mart. Plaintiff, who

is now 60, has represented through his

attorney that he expected to work five more

years. Accordingly, plaintiff, . had he

continued to work at Wall-Mart, would have

earned approximately $85,000.00 over the next

five years, plus any wage increases he would

have received during that time. Plaintiff,

however, has an obligation to mitigate those

damages. Plaintiff worked as a telemarketer

for Wal-Mart. Had plaintiff taken a similar

position, many of which are generally

A10

available in the local economy, he would have

been able to significantly mitigate his

damages. Even if plaintiff had remained at

the temporary job that he took for four

months after he was terminated, he would have

reduced his damages by $60,000.00. See Trial

Transcript at p. 48. (plaintiff testifying

that he earned approximately $4,000.00 in

four months at a temporary job after being

terminated from Wal-Mart). I find that

plaintiff could have mitigated his damages by

at least $60,000.00, and accordingly, award

plaintiff front pay damages of $25,000.00.

Iv. Plaintiff's Motion to Amend the

Judgment

Plaintiff moves to amend the judgment to

correct the name of the defendant.

Throughout the entire of this action,

defendant was referred to as “Sam’s Club,

Wal-Mart Corporation.” However, the writ of

execution obtained by plaintiff named “Wal-

Mart Stores, Inc.” as the party liable for

the judgment. Defendant argues that the writ

is void for failure to name the proper party.

Plaintiff moves to amend the judgment to

include Wal-mart Stores, Inc. as a defendant,

and thus conform the judgment to the writ.

I grant plaintiff’s motion to amend.

The amendment is a technical one, and no

All

party will be prejudiced by it. Wal-Mart

Stores, Inc. appeared in and defended this

action and accordingly had notice of the

action and the judgment that was rendered by

the jury.

Defendant moves to stay execution on the

judgment pending resolution of plaintiff’s

motions for attorney’s fees, costs and front

pay. Because I have decided those issues in

this Decision and Order, such a stay is

unnecessary. However, because I direct that

the judgment be amended, I hereby Order a

stay of all execution proceedings for ten

days from the date of this decision to afford

the defendant the opportunity to satisfy the

total judgment in accordance with this

decision without the necessity of

implementing further enforcement remedies.

If defendant fails to satisfy the amended

judgment during that time, plaintiff may

proceed with enforcement remedies to collect

the judgment as provided by this Decision and

Order.

B. Motion for a Temporary Restraining

Al2

ER EE Ge IE 5 EDL ee ee es

Pe ee ee ee ee a eee

Defendant moves for an Order temporarily

restraining the Monroe County Sheriff’s

Department from transferring funds collected

(in the amount of $32,524.77) from Wal-Mart

Stores, Inc. to the plaintiff. I leave it to

the parties to determine whether the amount

may be transferred to the plaintiff as

partial payment of the judgment as provided

in this decision and order.

C. Motion to Ouash

Defendant moves to quash the writ of

execution on grounds that it names an

improper party as the party responsible for

the judgment in this action. The error, if

any, in the writ of execution is a technical

defect that is cured by plaintiff’s motion to

amend the judgment, which I have granted.

Therefore, in accordance with Section IV

above, I deny defendant’s motion to quash the

writ of execution.

CONCLUSION

Plaintiff's motion for attorney’s fees,

costs, and front pay is granted.

Additionally, plaintiff’s motion to amend the

judgment is granted. Accordingly, I direct

the Clerk of the Court to amend the Judgment

to include the following amounts: jury

verdict of February 6, 1997 - $30,000;

Al3

attorney’s fees of $12,000; front pay of

$25,000; costs of $255.02 for a total of

$67,355.02 plus interest and to add “Wal-Mart

Stores, Incorporated” as a defendant.

Defendant’s motion to quash and for a

temporary restraining order is denied. I

grant however, defendant’s motion to stay

execution proceedings for ten days from the

date of this decision and order. If

defendant fails to satisfy the amended

judgment during that time, plaintiff may

proceed with any enforcement remedies to

collect the judgment.

ALL OF THE ABOVE IS SO ORDERED.

s/Michael_ A. Telesca SS

Honorable Michael A. Telesca

United States District Judge

DATED: Rochester, New York

May 9, 1997

FILED

97 MAY - 9 PM 3:03

U.S. DISTRICT COURT

W.D.N.Y. ROCHESTER

Al14

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1997

(Argued: April 7, 1998 Decided: May 29, 1998)

Docket No. 97-7928

JOHN C. NORTON,

Plaintiff-Appellee,

—_V—

SAM’S CLUB, WAL-MART CORP.,

WAL-MART STORES, INC.,

Defendants-Appellants.

Before:

WINTER, Chief Judge,

MCLAUGHLIN, and CALABRESI, Circuit Judges.

Appeal from the United States District Court for the North-

ern District of New York (Michael J. Telesca, Judge). An

employee sued his former employer, alleging discrimination

A15

in violation of the Age Discrimination in Employment Act.

The jury returned a verdict in favor of the plaintiff.

Reversed.

MICHAEL J. KANALEY JR., Kenney, Kanaley,

Shelton & Liptak, L.L.P., Buffalo, NY, for

Defendants-Appellants.

THEODORE S. KANTOR, Bilgore, Reich, Levine,

Kroll & Kantor, Rochester, NY, for Plaintiff-

Appellee.

CALABRESI, Circuit Judge:

Plaintiff John C. Norton sued Sam’s Ciub, claiming that he

had been fired because of his age in violation of the New

York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 296

et seq. (McKinney 1993 & Supp. 1997), and the Age Dis-

crimination in Employment Act (“ADEA”), 29 U.S.C. § 621

et seq. The case went to a jury, which returned a verdict in

favor of Norton and awarded him $30,000 in back pay. The

court (Michael J. Telesca, Judge) thereupon granted him an

additional $25,000 in front pay as well as attorney’s fees and

court costs of $12,355.02. Sam’s Club appeals, arguing that

the evidence at trial was insufficient to support the jury’s ver-

dict in favor of Norton. We agree, and reverse.

Al6

I. FACTS & PROCEDURAL HISTORY

Sam’s Club, a division of Wal-Mart, offers discount mer-

chandise to individuals who buy memberships in the “club.”

Norton’s job was to sell corporate memberships to executives

of companies in the area around the Henrietta, New York,

Sam’s Club warehouse. When Norton was hired by Sam’s

Club in January 1991, he was fifty-three years old.

In January of 1993, Norton’s manager, Ronny Rexrode,

became concerned about Norton’s productivity. Rexrode

decided to spend a day trailing Norton while Norton was out

making sales calls. Rexrode observed Norton spending

approximately an hour at lunch with co-workers. Norton,

however, marked only a thirty minute lunch break on his time

card for that day. Rexrode considered this a “theft of time”

and confronted Norton. Norton admitted that he had spent a

long time at lunch that day, but denied that he had done any-

thing wrong. He explained that he had been very upset

because he had just learned that his elderly father was ter-

minally ill, and that his co-workers had taken him out to

lunch to cheer him up.

Rexrode nevertheless decided to fire Norton. Norton had

previously been subject to disciplinary action for failing to

follow Sam’s Club procedures for making a sales appoint-

ment. As a result of that incident, he had been given a “deci-

sion day,” which amounts to a day off with pay during which

the employee is to deliberate on his actions and censider his

future with the company. In addition, as previously noted,

Rex.ode had been dissatisfied with Norton’s productivity.

Rexrode indicated that Norton’s “theft of time,” combined

with these factors, led him to dismiss Norton.

One of the other employees who had been at lunch with

Norton, Richard Croce, was also fired for falsifying his time

Al7

card. But two others who were at the long lunch, Joel Kasdin

and Rick Seibert, were not dismissed. Although their time

cards likewise indicated that they had taken only a half-hour

lunch, their cards had been marked in error by their super-

visor, rather than by Kasdin and Seibert themselves. As a

result, they were not held responsible for the misstatement.

Croce, Kasdin, and Seibert were all over forty years of age at

the time of Norton’s termination.

Norton contends that he was fired because of his age. In

support of this position at trial, he pointed to the fact that

Rexrode and most of the other Sam’s Club managers were in

their twenties and thirties, while Norton and the other person

fired, Croce, were over forty. In addition, Norton testified

that he was the oldest person present at a recent sales con-

ference and that he was the only person sent home early from

the conference. Finally, he suggested that the main reason

given by Sam’s Club to explain his termination—his “theft of

time” on one occasion—was so inherently implausible that it

had.to be pretextual.

Sam’s Club moved for judgment as a matter of law

(“JMOL”) at the close of the plaintiff’s case and again at the

conclusion of all the evidence. The case went to the jury,

which returned a verdict for Norton. Sam’s Club did not

renew its JMOL motion after the verdict.

II. DISCUSSION

On appeal, Sam’s Club argues that the evidence was insuf-

ficient to support a finding of age discrimination and that the

jury’s verdict must therefore be reversed. We agree. But

before we discuss the merits of this argument, we deem it

appropriate to consider a procedural irregularity in the case.

A18

A. Procedural Matters

Sam’s Club moved for judgment as a matter of law at the

close of the plaintiff’s case. It failed, however, to renew that

motion after the jury returned its verdict. Under ordinary cir-

cumstances, this would present a significant problem for

Sam’s Club on appeal. We have held that “[t]o preserve for

appeal a challenge to the denial of a pre-verdict motion for

judgment as a matter of law, a movant must renew that

motion after the verdict.” Varda, Inc. v. Insurance Co. of

North Am., 45 F.3d 634, 638 (2d Cir. 1995). And when a

party does not make a renewed motion for JMOL after the

verdict pursuant to Federal Rule of Civil Procedure 50(b),

that party is deemed not to have preserved its challenge to

the sufficiency of the evidence. See id.

In the case before us, however, the appellee has not prop-

erly preserved his right to object to the appellant’s attempt to

claim insufficiency of the evidence. While the preliminary

section of Norton’s brief mentions in passing that Sam’s Club

did not make a post-verdict motion for JMOL, it attributes no

significance to that fact. Federal Rule of Appellate Procedure

28(b) requires that the appellee’s brief contain a summary of

argument, an argument, and, where the appellee is dissatis-

fied with appellant’s statement of the issues, a statement of

issues as perceived by the appellee. Issues not sufficiently

argued in the briefs are considered waived and normally will

not be addressed on appeal. See Frank v. United States, 78

F.3d 815, 832-33 (2d Cir. 1996), vacated on other grounds,

117 S. Ct. 2501 (1997).

Pursuant to this rule, we have held that an argument made

only in a footnote was inadequately raised for appellate

review. See United States v. Restrepo, 986 F.2d 1462, 1463

(2d Cir. 1993). And we have concluded that merely incor-

porating by reference an argument presented to the district

Al9

court, stating an issue without advancing an argument, or

raising an issue for the first time in a reply brief likewise did

not suffice. See Frank, 78 F.3d at 833 (collecting cases).!

We think that the appellee’s casual reference to the appel-

lant’s failure to make a post-verdict JMOL motion is insuf-

ficient to command the invocation of the rule of Varda. While

the making of a renewed JMOL motion is mandatory, it is not

jurisdictional. As a result, it can be waived, and, absent a

request by the appellee, we have no duty to enforce the Varda

requirement.

Accordingly, we consider the merits of appellant’s request

for judgment as a matter of law.

B. Sufficiency of the Evidence

We will upset a jury verdict only if there is “such a com-

plete absence of evidence supporting the verdict that the

jury’s findings could only have been the result of sheer sur-

mise and conjecture.” Stratton v. Department for the Aging,

132 F.3d 869, 878 (2d Cir. 1997) (internal quotation marks

and citation omitted). We must view the evidence in the light

most favorable to the party in whose favor the verdict was

rendered, giving that party the benefit of all reasonable infer-

ences that the jury might have drawn in his favor. See id. And

we may not “assess the weight of conflicting evidence, pass

| This rule is, of course, tempered in pro se cases by our duty to construe lib-

erally papers filed by pro se litigants. But in the case before us, the appellee is

represented by counsel.

2 __ Even under Varda, the appellate court, which is precluded from ordering a

JMOL, may nevertheless order a new trial in the absence of a post-verdict

motion if it concludes that letting the verdict stand would result in “manifest

injustice.” See Varda, 45 F.3d at 638. But, since appellee has waived his chal-

lenge, we need not decide whether that would be appropriate in the case before

us. We note, however, that manifest injustice has been found where a plaintiff

“failed to prove one of the four essential elements of [his claim.]” Russo v. New

York, 672 F.2d 1014, 1022 (2d Cir. 1982).

A20

&

ze

%

re

on the credibility of the witnesses, or substitute [our] judg-

ment for that of the jury.” Jd. (internal quotation marks and

citation omitted). A party seeking to overturn a verdict based

on the sufficiency of the evidence bears a very heavy burden.

We believe that Sam’s Club has met that burden.

In order to estabiish a prima facie of age discrimination,

the plaintiff must -show (1) that he was in the protected age

group; (2) that he was qualified for the position; (3) that he

was discharged; and (4) that the discharge occurred under cir-

cumstances giving rise to an inference of discrimination. See,

e.g., Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir.

1994). “The burden of establishing a prima facie case is not

onerous, and has been frequently described as minimal.”

Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per

curiam); see St. Mary’s Honor Ctr. v. Hicks, 50S U.S. 502,

506 (1993).

Once the plaintiff has established a prima facie case, the

defendant has the burden of producing “ ‘reasons for its

actions which, if believed by the trier of fact, would support

a finding that unlawful discrimination was not the cause of

the employment action.’ ” Grady v. Affiliated Cent., Inc., 130

F.3d 553, 559 (2d Cir. 1997) (quoting Sz. Mary's, 509 U.S. at

507). “If the defendant meets its burden of producing an age-

neutral reason for the discharge, the presumption of dis-

crimination raised by the prima facie case ‘drops out of the

picture.’ ” Jd. at 559-60 (quoting St. Mary’s, 509 U.S. at 511);

see Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir.

1997) (in banc). The burden then returns to the plaintiff, who

must adduce sufficient evidence to allow a rational fact

finder to infer that the employer was motivated in whole or

in part by age discrimination. See Fisher, 114 F.3d at 1336.

In doing this, the plaintiff is entitled to rely “on the evidence

constituting the prima facie case, together with supportable

inferences to be drawn from the false or erroneous character

A21

of the employer’s proffered reason for the adverse action.”

Id. at 1333.

The thick accretion of cases interpreting this burden-shift-

ing framework should not obscure the simple principle that

lies at the core of anti-discrimination cases. In these, as

in most other cases, the plaintiff has the ultimate burden of

persuasion. See St. Mary's, 509 U.S. at 507 (“ ‘The ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.) (quoting Texas Dep’t of Com-

munity Affairs v. Burdine, 450 U.S. 248, 253 (1981)); Fisher,

114 F.3d at 1333 (“[A] plaintiff in a discrimination case must

show by a preponderance of the evidence that the reason for

the adverse employment action was illegal discrimination.”).

The plaintiff is not required to produce direct evidence of

discrimination. See Luciano v. Olsten Corp., 110 F.3d 210,

215 (2d Cir. 1997). In this, as in other, areas of the law a case

may be built entirely out of circumstantial evidence. See,

e.g., Burger v. New York Inst. of Tech., 94 F.3d 830, 833-35

(2d Cir. 1996) (finding a jury question in an age discrimi-

nation case based wholly on circumstantial evidence); cf.

United States v. Viola, 35 F.3d 37, 44 (2d Cir. 1994) (“Par-

ticipation in [a] conspiracy can be shown wholly through

circumstantial evidence. . . .”). Indeed, plaintiffs in dis-

crimination suits often must rely on the cumulative weight of

circumstantial evidence, since “[a]n employer who discrim-

inates is unlikely to leave a ‘smoking gun,’ such as a notation

in an employee’s personnel file, attesting to a discriminatory

intent.” Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.

1991); see also Postal Serv. Bd. of Governors v. Aikens, 460

U.S. 711, 716 (1983) (“There will seldom be ‘eyewitness’

testimony as to the employer’s mental processes.”); Luciano,

110 F.3d at 215. And we have rejected “the view that cir-

cumstantial evidence is inherently weaker than direct evi-

A22

dence.” United States v. Sureff, 15 F.3d 225, 229 (2d Cir.

1994). For, as we have explained:

The entry into a house by a person wearing a wet rain-

coat and holding a wet, open umbrella may well be more

reliable evidence of the climate than statements of a per-

son inside the house looking out a window. . . . Cir-

cumstantial evidence is thus not a disfavored form of

proof.

Id.

Moreover, it is primarily the province of the jury to deter-

mine what inferences can be drawn from circumstantial evi-

dence. So long as the evidence can reasonably support an

inference of discrimination, the court should not upset the

jury’s decision. Cf. Gallagher v. Delaney, 139 F.3d 338, __.,

No. 97-7726, 1998 WL 119614, at *2 (2d Cir. Mar. 19, 1998)

(“Whatever the early life of a federal judge, she or he usually

lives in a narrow segment of the enormously broad American

socio-economic spectrum, generally lacking tiie current real-

life experience required in interpreting subtle . . . dynamics

of the workplace... .”).

At the same time, however, a jury cannot infer discrimi-

nation from thin air. And thin air is all the plaintiff has pro-

duced in the case before us. Norton proved (1) that he was

over forty years old when he was fired; (2) that the person

who fired him was under forty years of age; and (3) that one

other person who was fired around the same time as Norton

was also over forty. Norton further suggested that the prin-

cipal reason offered by Sam’s Club for his dismissal (his hav-

ing taken one long lunch) was preposterous.

Norton established, at best, an extremely weak prima facie

case. It is not infrequent that people who are dismissed are

fired by managers who differ from them in some respect—

managers who are younger or older, or of a different race or

A23

gender. If that fact, without more, could suffice to support the

finding of discrimination in the instant case, it would be hard

to imagine a termination that could not be attributed to dis-

crimination. And even if the jury could find that the expla-

nation offered by Sam's Club for why it fired Norton was

absurd, it is hard to see how this would add much of signif-

icance to Norton’s case. See Fisher, 114 F.3d at 1345. Nor-

ton’s very weak prima facie case, combined with an at best

highly dubious showing of pretext, that in itself does not

implicate discrimination, is simply not enough to support the

jury’s conclusion that he was fired because of his age.

At the same time, it is easy to see how a reasonable person

could conclude from the facts of this case that it was wrong

for Sam’s Club to fire Norton. Many people would consider

it an affront to their dignity to be secretly trailed by a super-

visor as they went about their work. And firing someone for

taking a long lunch on a day when he was coping with seri-

ous family problems might seem to some to be unduly harsh.

But the ADEA does not make employers liable for doing

stupid or even wicked things; it makes them liable for dis-

criminating, for firing people on account of their age. The

record in the instant case is devoid of evidence, direct or cir-

cumstantial, sufficient to support a finding that Sam’s Club

fired Norton because of his age. Accordingly, we REVERSE.

A24

MANDATE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

At a stated Term of the United States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City

of New York, Foley Square, on the 29th day of

May, one thousand nine hundred and ninety-

eight.

BEFORE: Hon. Ralph K. Winter

Chief Judge

Hon. Joseph M. McLaughlin

Hon. Guido Calabresi

Circuit Judges

Docket No. 97-7928

- — eee eee eee eee ee eee eee

JOHN C. NORTON,

. Plaintiff-Appellee

-V-

SAM’S CLUB, WAL-MART CORP., WAL-

MART STORES, INC.,

Defendant-Appellants.

Appeal from the United States District

Court for the Northern District of New York.

This cause came on to be heard on the

transcript of record from the Northern

District 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 reversed 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

A True Copy

George Lange III, Clerk

s/George Lange III

ISSUED AS MANDATE. 7/23/98

A26

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

CAROLYN CLARK CAMPBELL WDNY/rony

CLERK 93-cv-6387

Telesca

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED

JUL 16, 1998

CAROLYN CLARK CAMPBELL, CLERK

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 16

day of July one thousand nine hundred and

ninety-eight.

Norton,

Plaintiff-Appellee,

Vv Dkt No: 97-7928

Sam’s Club,

Defendant-Appellant.

A27

A petition for rehearing containing a

suggestion that the action be reheard in banc

having been filed herein by the appellee John

C. Norton. a ©

Upon consideration by the panel that

decided the appeal, it is Ordered that

said petition for rehearing is DENIED.

It is further noted that the suggestion for

rehearing in banc has been transmitted to the

judges for the court in regular active

service and to any other judge that heard the

appeal and that no such judge has requested

that a vote be taken thereon.

FOR THE COURT

CAROLYN CLARK CAMPBELL, Clerk

By: s/Beth J. Meador

Beth J. Meador,

Administrative Attorney

p o ccc

inbancdn_frm

UNITED STATES CODE ANNOTATED

TITLE 29. LABOR

CHAPTER 14--AGE DISCRIMINATION IN EMPLOYMENT

Current through P.L. 105-175, approved

5-11-98

§621. Congressional statement of findings

and purpose

(a) The Congress hereby finds and declares

that --

(1) in the fact of rising productivity and

affluence, older workers find themselves

disadvantaged in their efforts to retain

employment, and especially to regain

employment when displaced from jobs;

(2) the setting of arbitrary age limits

regardless of potential for job performance

has become a common practice, and certain

otherwise desirable practices may work to the

disadvantage of older persons;

(3) the incidence of unemployment,

especially long-term unemployment with

resultant deterioration of skill, morale, and

employer acceptability is, relative to the

younger ages, high among older workers; their

A29

numbers are great and growing; and their

employment problems grave;

(4) the existence in industries affecting

commerce, of arbitrary discrimination in

employment because of age, burdens commerce

and the free flow of goods in commerce.

(b) It is therefore the purpose of this

chapter to promote employment of older

persons based on their ability rather than

age; to prohibit arbitrary age discrimination

in employment; to help employers and workers

find ways of meeting problems arising from

the impact of age on employment.

A30

S/R lS Ot STERN SE Bee AP AI POS 0 oS UR WAR SM ge

ee fT Ga 8: 623. Prohibition of age

discrimination

(a) Employer practices

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to

discharge any individual oor otherwise

discriminate against any individual with

respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual’s age;

(2) to limit, segregate, or classify his

employees in any way which would deprive or

tend to deprive any individual of employment

opportunities or otherwise adversely affect

his status as an employee, because of such

individual’s age; and

(3) to reduce the wage rate of any employee

in order to comply with this chapter.

(b) Employment agency practices

It shall be unlawful for an employment

agency to fail to refuse to refer to

employment, or otherwise to discriminate

@jainst, any individual because of such

individual’s age, or to classify or refer for

employment any individual on the basis of

such individual’s age.

(c) Labor organization practices

A31

*

'

,

I

:

i

1

{

hg shall be unlawful for a labor

organization--

(1) to exclude or to expel from its

membership, or otherwise discriminate

against, any individual because of his age;

(2) to limit, segregate, or classify its

membership, or to classify or fail or refuse

to refer for employment any individual, in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or would ‘imit such employment

opportunities or otherwise adversely affect

his status as an employee or as an applicant

for employment, because of such individual’s

age;

(3) to cause or attempt to cause an employer

to discriminate against an individual in

violation of this section.

(d) Opposition to unlawful practices;

participation in investigations, proceedings,

or litigation

It shall be unlawful for an employer to

discriminate against any of his employees or

applicants for employment, for an employment

agency to discriminate against any

individual, or for a labor organization to

A32

discriminate against any member thereof or

applicant for membership, because such

individual, member or applicant for

membership has opposed any practice made

unlawful by this section, or because such

individual, member or applicant for

membership has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or litigation

under this chapter.

(e) Printing or publication of notice or

advertisement indicating preference,

limitation, etc.

It shall be unlawful for a: employee, labor

organization, or employment agency to print

Or publish, or cause to be printed or

published, any notice or advertisement

relating to employment by such an employer or

membership in or any classification or

referral for employment by such a labor

organization, or relating to any

Classification or limitation, specification,

or discrimination, based on age.

(f£) Lawful practices; age an occupational

qualification; other reasonable factors; laws

of foreign workplace; seniority system;

employee benefit plans; discharge or

discipline for good cause

A33

It shall be unlawful for an employer,

employment agency, or labor organization--

(1) to take any action otherwise prohibited

under subsections (a), (b), (c), or (e) of

this section where age is a bona fide

occupational qualification reasonably

necessary to the normal operation of the

particular business, or where the

differentiation is based on reasonable

factors other than age, or where such

practices involve an employee in a workplace

if a foreign country, and compliance with

such subsections would cause such employer,

or a corporation controlled by such employer,

to violate the laws of the country in which

such workplace is located;

(2) to take any action otherwise prohibited

under subsection (a), (b), (c), or (e) of

this section--

(A) to observe the terms of a bona fide

seniority system that is not intended to

evade the purposes of this chapter, except

that no such seniority system shall require

or permit the involuntary retirement of any

individual specified by section 631(a) of

this title because of the age of such

individual; or

(B) to observe the terms of a bona fide

A34

employee benefit plan--

(i) where, for each benefit or benefit

package, the actual amount of payment made or

cost incurred on behalf of an older worker is

no less than that made or incurred on behalf

of a younger worker, as permissible under >

section 1625.10, title 29, Code of Federal

Regulations (as in effect on June 22, 1989);

or

(ii) that is a voluntary early retirement

incentive plan consistent with the relevant

purpose or purposes of this chapter.

Notwithstanding clause (i) or (ii) of

subparagraph (B), no such employee benefit

plan or voluntary early retirement incentive

plan shall excuse the failure to hire any

individual, and no such employee benefit plan

Shall require or permit the involuntary

retirement of any individual specified by

section 631(a) of this title, because of the

age of such individual. An employer,

employment agency, or labor organization

acting under subparagraph (A), or under

clause (i) or (ii) of subparagraph (B), shall

have the burden of proving that such actions

are lawful in any civil enforcement

proceeding brought under this chapter; or

A35

(3) to discharge or otherwise discipline an

individual for good cause.

(g) Repealed. Pub.L. 101-239, Title VI, S

6202(b) (3) (C) (I), Dec. 19, 1989, 103 Stat.

2233

(h) Practices of foreign corporations

controlled by American employers; foreign

employers not controlled by American

A36

employers; factor determining control

(1) If an employer controls a corporation

whose place of incorporation is in a foreign

country, any practice by such corporation

prohibited under this section shall be

presumed to be such practice by such

employer.

(2) The prohibitions of this section shall

not apply where the employer is a foreign

person not controlled by an American

employer.

(3) For the purpose of this subsection the

determination of whether an employer controls

a corporation shall be based upon the--

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations,

and

(D) common ownership of financial control,

of the employer and the corporation.

(i) Employee pension benefit plans; cessation

or reduction of benefit accrual or of

allocation to employee account; distribution

of benefits after attainment of normal

retirement age; compliance; highly

compensated employees

A37

(1) Except as otherwise provided in this

subsection, it shall be unlawful for an

employer, an employment agency, a labor

organization, or any combination thereof to

establish or maintain an employee pension

benefit plan

(A) in the case of a defined benefit plan,

the cessation of an employee’s' benefit

accrual, or the reduction of the rate of an

employee’s benefit accrual, because of age,

or

(B) in the case of a-defined contribution

plan, the cessation of allocations to an

employee’s account, or the reduction of the

rate at which amounts are allocated to an

employee’s account, because of age.

(2) Nothing in this section shall be

construed to prohibit an employer, employment

agency, or labor organization from observing

any provision of an employee pension benefit

plan to the extent that such provision

imposes (without regard to age) a limitation

on the amount of benefits that the plan

provides or a limitation on the number of

years of service or years of participation

which are taken into account for purposes of

determining benefit accrual under the plan.

(3) In the case of any employee who, as of

A38

the end of any plan year under a defined

benefit plan, has attained normal retirement

age under such plan--

(A) if distribution of benefits under such

plan with respect to such employee has

commenced as of the end of such plan year,

then any requirement of this subsection for

continued accrual of benefits under such plan

with respect to such employee during such

plan year shall be treated as satisfied to

the extent of the actuarial equivalent of in

-service distribution of benefits, and

(B) if distribution of benefits under such

plan with respect to such employee has not

commenced as of the end of such year in

accordance with section 1056(a) (3) of this

title and section 401(a) (14) (C) of Title

26, and the payment of benefits under such

plan with respect to such employee is not

suspended during such plan year pursuant to

section 1053(a) (3) (B) of this title or

section 411(a) (3) (B) of Title 26, then any

requirement of this subsection for continued

accrual of benefits under such plan with

respect to such employee during such plan

year shall be treated as satisfied to the

extent of any adjustment in the benefit

payable under the plan during such plan year

attributable to the delay in the distribution

of benefits after the attainment of normal

A39

retirement age.

The provisions of this paragraph shall apply

in accordance with regulations of the

Secretary of the Treasury. Such regulations

shall provide for the application of the

preceding provisions of this paragraph to all

employee pension benefit plans subject to

this subsection and may provide for the

application of such provisions, in the case

of any such employee, with respect to any

period of time within a plan year.

(4) Compliance with the requirements of this

subsection with respect to an employee

pension benefit plan shall constitute

compliance with the requirements of this

section relating to benefit accrual under

such plan.

(S) Paragraph (1) shall not apply with

respect to any employee who is a highly

compensated employee (within the meaning of

section 414(q) of Title 26) to the extent

provided in regulations prescribed by the

Secretary of the Treasury for purposes of

precluding discrimination in favor of highly

compensated employees within the meaning of

subchapter D of chapter 1 of Title 26.

(6) A plan shall not be treated as failing

to meet the requirements of paragraph (1)

A40

solely because the subsidized portion of any

early retirement benefit is disregarded I

determining benefit accruals.

(7) Any regulations prescribed by the

Secretary of the Treasury pursuant to clause

(v) of section 411(b) (1) (H) of Title 26 and

subparagraphs (C) and (D) of section 411 (b)

(2) of Title 26 shall apply with respect to

the requirements of this subsection in the

same manner and to the same extent as such

regulations apply with respect to. the

requirements of such section 411(b) (1) (H)

and 411(b) (2) of Title 26.

(8) A plan shall not be treated as failing

to meet the requirements of this section

solely because such plan provides a normal

retirement age described in section 1002(24

(B) of this title and section 411(a) (8) (B)

of Title 26.

(9) For purposes of this subsection--

(A) The terms “employee pension benefit

plan”, “defined benefit plan”, “defined

contribution plan”, and “normal retirement

age” have the meanings provided such terms in

section 1002 of this title.

(B) The term “compensation” has the meaning

provided by section 414(s) of Title 26.

A41

(j) Employment as firefighter or law

enforcement officer

It shall not be unlawful for an employer

which is a State, a political subdivision of

a State, or an interstate agency to fail or

refuse to hire or to discharge any individual

because of such individual’s age if such

action is taken--

(1) with respect to the employment of an

individual as a firefighter or as a law

enforcement officer, the employer has

complied with section 3(d) (2) of the Age

Discrimination in Employment Amendments of

1996 if the individual was discharged after

the date described in such section, and the

individual has attained--

(A) the age of hiring or retirement,

respectively, in effect under applicable

State or local law on March 3, 1983; or

(B) (i) if the individual was not hired,

the age of hiring in effect on the date of

such failure or refusal to hire under

applicable State or local law enacted after

September 30, 1996; or

(ii) if applicable State or local law was

enacted after September 30, 1996, and the

individual was discharged, the higher of--

A42

(I) the age of retirement in effect on

the date of such discharge under such law;

and

(II) age 55; and

(2) pursuant to a bona fide hiring or

retirement plan that is not a subterfuge to

evade the purposes of this chapter.

(k) Seniority system or employee benefit

plan; compliance

A seniority system or employee benefit plan

shall comply with this chapter regardless of

the date of adoption of such system or plan.

(1) Lawful practices; minimum age as

condition of eligibility for retirement

benefits; deductions from severance pay;

reduction of long-term disability benefits

Notwithstanding clause (i) or (ii) of

subsection (f) (2) (B) of this section--

(1) It shall not be a violation of

subsection (a), (b), (c), or (e) of this

section solely because--

(A) an employee pension benefit plan (as

defined in section 1002(2) of this title)

provides for the attainment of a minimum age

as a condition of eligibility for normal or

A43

early retirement benefits; or

(B) a defined benefit plan (as defined in

section 1002(35) of this title) provides for-

(i) payments that constitute’ the

subsidized portion of an early retirement

benefit; or

(ii) social security supplements for plan

participants that commence before the age and

terminate the age (specified by the plan)

when participants are eligible to receive

reduced or unreduced old-age insurance

benefits under title II of the Social

Security Act (>42 U.S.C. 401 et seq.), and

that do not exceed such old-age insurance

benefits.

(2) (A) It shall not be a violation of

subsection (a), (b), (c), or (e) of this

section solely because following a contingent

event unrelated to age--

(i) the value of any retiree health

benefits received by a. individual eligible

for an immediate pension;

(ii) the value of any additional pension

benefits that are made available solely as a

result of the contingent event unrelated to

A44

age and following which the individual is

eligible for not less than an immediate and

unreduced pension; or

(iii) the values described in both clauses

(i) and (ii);

are deducted from severance pay made

available as a result of the contingent event

unrelated to age.

(B) For an individual who receives

immediate pension benefits that are

actuarially reduced under subparagraph (A)

(i), the amount of the deduction available

pursuant to subparagraph (A) (i) shall be

reduced by the. same percentage as_ the

reduction in the pension benefits.

(C) For purposes of this paragraph,

severance pay shall include that portion of

supplemental unemployment compensation

benefits (as described in section 501(c) (17)

of Title 26) that--

(i) constitutes additional benefits of up

to 52 weeks;

(ii) has the primary purpose and effect ot

continuing benefits until an individual

becomes eligible for an immediate and

unreduced pension; and

A45

(iii) is discontinued once the individual

becomes eligible for an immediate and

unreduced pension.

(D) For purposes of this paragraph and

solely in order to make the deduction

authorized under this paragraph, the term

“retiree health benefits” means benefits

provided pursuant to a group health plan

covering retirees, for which (determined as

of the contingent event unrelated to age) --

(i) the package of benefits provided by

the employer for the retirees who are below

age 65 is at least comparable to benefits

provided under title XVIII of the Social

Security Act (> 42 U.S.C. 1395 et seq.);

(ii) the package of benefits provided by

the employer for the retirees who are age 65

and above is at least comparable to that

offered under a plan that provides a benefit

package with one-fourth the value of benefits

provided under title XVIII of such Act; or

(iii) the package of benefits provided by

the employer is as described in clauses (i)

and (ii).

(E) (i) If the obligation of the employer

to provide retiree health benefits is of

limited duration, the value for each

A46

individual shall be calculated at a rate of

$3,000 per year for benefit years before age

65, and $750 per year for benefit years

beginning at age 65 and above.

(ii) If the obligation of the employer to

provide retiree health benefits is of

unlimited duration, the value for each

individual shall be calculated at a rate of

$48,000 for individuals below age 65, and

$24,000 for individuals age 65 and above.

(iii) The values described in clauses (i)

and (ii) shall be calculated based on the age

of the individual as of the date of the

contingent event unrelated to age. The

values are effective on October 16, 1990, and

shall be adjusted on an annual basis, with

respect to a contingent event that ocurs

subsequent to the first year after October

16, 1990, based on the medical component of

the Consumer Price Index for all-urban

consumers published by the Department of

Labor.

(iv) If an individual is required to pay a

premium for retiree health benefits, the

value calculated pursuant to this

subparagraph shall be reduced by whatever

percentage of the overall premium. the

individual is required to pay.

(F) If an employer that has implemented a

A47

deduction pursuant to subparagraph (a) fails

to fulfill the obligation described in

subparagraph (e), any aggrieved individual

may bring an action for specific performance

of the obligation described in subparagraph

(E). The relief shall be in addition to any

other remedies provided under Federal or

State law.

(3) It shall not be a violation of

subsection (a), (b), (c), or (e) of this

section solely because an employer provides a

bona fide employee benefit plan or plans

under which long-term disability benefits

received by an individual are reduced by any

pension benefits (other than those

attributable to employee contributions) --

(A) paid to the individual that the

individual voluntarily elects to receive; or

(B) for which an individual who has

attained the later of age 62 or normal

retirement age is eligible.

A48

29 U.S.C. 626. Recordkeeping, investigation,

and enforcement.

(a) Attendance of witnesses; investigations,

inspections, records, and homework

regulations

The Equal Employment Opportunity Commission

shall have the power to make investigations

and require the keeping of records necessary

Or appropriate for the administration of this

chapter in accordance with the powers and

procedures provided in sections 209 and 211

of this title.

(b) Enforcement; prohibition of age

discrimination under fair labor standards;

unpaid minimum wages and unpaid overtime

compensation; liquidated damages; judicial

relief; conciliation, conference and

persuasion

The provisions of this chapter shall be

enforced in accordance with the powers.

remedies, and procedures provided in sections

211(b), 216 (except for subsection (a)

thereof), and 217 of this title, and

subsection (c) of this section. Any act

prohibited under section 623 of this title

shall be deemed to be a prohibited act under

section 215 of this title. Amounts Owing to

a person as a result of a violation of this

A49

chapter shall be deemed to be unpaid minimum

wages or unpaid overtime compensation for

purposes of sections 216 and 217 of this

title. Provided, that liquidated damages

shall be payable only in cases of willful

violations of this chapter. In any action

brought to enforce this chapter the court

shall have jurisdiction to grant such legal

or equitable relief as may be appropriate to

effectuate the purposes of this chapter,

including, without limitation judgments

compelling employment, reinstatement’ of

promotion, or enforcing the liability for

amounts deemed to be unpaid minimum wages or

unpaid overtime compensation under this

section. Before instituting any action under

this section, the Equal Employment

Opportunity Commission shail attempt’ to

eliminate the discriminatory practice or

practices alleged, and to effect voluntary

compliance with the requirements of this

chapter through informal methods of

conciliation, conference and persuasion.

(c) Civil actions; persons aggrieved;

jurisdiction; judicial relief; termination of

individual action upon commencement of action

by Commission; jury trial

(1) Any person aggrieved may bring a civil

action in any court of competent jurisdiction

A50

for such legal or equitable relief as will

effectuate the purposes of this chapter:

Provided, That the right of any person to

bring such action shall terminate upon the

commencement of an action by the Equal

Employment Opportunity Commission to enforce

the right of such employee under this

chapter.

(2) Filing of charge with Commission;

timeliness; conciliation, conference, and

persuasion

No civil action may be commenced by an

individual under this section until 60 days

after a charge alleging unlawful

discrimination has been filed with the Equal

Employment Opportunity Commission. Such a

charge shall be filed--

(1) within 180 days after the alleged

unlawful practice occurred; or

(2) in a case to which section 633(b) of

this title applies, within 300 days after the

alleged unlawful practice occurred, or within

30 days after receipt by the individual of

notice of termination of proceedings under

State law, whichever is earlier.

Upon receiving such a charge, the Commission

Shall promptly notify all persons named in

A51

such charge as prospective defendants in the

action and shall promptly seek to eliminate

any alleged unlawful practice by informal

methods of conciliation, conference, and

persuasion.

(e) Reliance on administrative rulings;

notice of dismissal or termination; civil

action after receipt of notice

Section 259 of this title shall apply to

actions under this chapter. If a charge

filed with the Commission under this chapter

is dismissed or the proceedings of the

Commission are otherwise terminated by the

Commission, the Commission shall notify the

person aggrieved. A civil action may be

brought under this section by a person

defined in section 630(a) of this title

against the respondent named in the charge

within 90 days after the date of the receipt

of such notice.

(£) Waiver

(1) An individual may not waive any right

or claim under this chapter unless the waiver

is knowing and voluntary. Except as provided

in paragraph (2), a waiver may not be

considered knowing and voluntary unless at a

minimum--

(A) the waiver is part of an agreement

A52

between the individual and the employer that

is written in a manner calculated to be

understood by such individual, or by the

average individual eligible to participate;

(B) the waiver specifically refers to

rights or claims arising under this chapter;

(C) the individual does not waive rights

or claims that may arise after the date the

waiver is executed;

(D) the individual waives rights or claims

only in exchange for consideration in

addition to anything of value to which the

imdividual already is entitled;

(E) the individual is advised in writing

to consult with an attorney prior to

executing the agreement;

(F) (i) the individual is given a period

of at least 21 days within which to consider

the agreement; or

(ii) if a waiver is requested in

connection with an exit incentive or other

employment termination program offered to a

group or class of employees, the individual

is given a period of at least 45 days within

which to consider the agreement ;

AS3

(G) the agreement provides that for a

period of at least 7 days following the

execution of such agreement, the individual

may revoke the agreement, and the agreement

shall not become effective or enforceable

until the revocation period has expired;

(H) if a waiver is requested in connection

with an exit incentive or other employment

termination program offered to a group or

class of employees, the employer (at the

commencement of the period specified in

subparagraph (F)) informs the individual in

writing in a manner calculated to be

understood by the average individual eligible

to participate, as to--

(i) any class, unit, or group of

individuals covered by such program, any

eligibility factors for such program, and any

time limits applicable to such program; and

(ii) the job titles and ages of all

individuals eligible or selected for the

program, and the ages of all individuals in

the same job classification or organizational

unit who are not eligible or selected for the

program. :

(2) A waiver in settlement of a charge filed

with the Equal Employment Opportunity

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Commission, or an action filed in court by

the individual or the individual’s

representative, alleging age discrimination

of a kind prohibited under section 623 or

633a of this title may not be considered

knowing and voluntary unless at a minimum--

(A) subparagraphs (A) through (E) of

paragraph (1) have been met; and

(B) the individual is given a reasonable

period of time within which to consider the

settlement agreement.

(3) In any dispute that may arise over

whether any of ti = requirements, conditions,

and circumstances set forth in subparagraph

(A) ,{B),--(C), (D), (BE), (FP), (G), or (H) of

paragraph (1), or subparagraph (A) or (B) of

paragraph (2), have been met, the party

asserting the validity of a waiver shall have

the burden of proving in a court of competent

jurisdiction that a waiver was knowing and

voluntary pursuant to paragraph (1) or (2).

(4) No waiver agreement may affect the

Commission’s rights and responsibilities to

enforce this chapter. No waiver may be used

to justify interfering with the protected

right of an employee to file a charge or

participate in an investigation or proceeding

conducted by the Commission.

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29 U.S.C. 630. Definitions

For the purposes of this chapter--

(a) the term “person” means one or more

individuals, partnerships, associations,

labor organizations, corporations, business

trusts, legal representatives, or any

organized groups of persons.

(b) The term “employer” means a person

engaged in an industry affecting commerce who

has twenty or more employees for each working

day in each of twenty or more calendar weeks

in the current or preceding calendar year;

Provided, That prior to June 30, 1968,

employers having fewer than fifty employees

shall not be considered employers. The term

also means (1) any agent of such a person,

and (2) a State or political subdivision of a

State and any agency or instrumentality of a

State or a political subdivision of a State,

any interstate agency, but such term does not

include the United States, or a corporation

wholly owned by the Government of the United

States.

(c) The term “employment agency” means any

person regularly undertaking with or without

compensation to procure employees for an

employer and includes an agent of such a

person; but shall not include an agency of

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the United States.

(d) The term “labor organization” means a

labor organization engaged in an industry

affecting commerce, and any agent of such an

organization, and includes any organization

of any kind, any agency, or _ employee

representation committee, group, association,

or plan so engaged in which employees

participate and which exists for the purpose,

in whole or in part, of dealing with

employers concerning grievances, labor

disputes, wages, rates of pay, hours, or

other terms or conditions of employment, and

any conference, general committee, joint or

system board, or joint council so engaged

which is subordinate to a national or

international labor organization.

(e) A labor organization shall be deemed to

be engaged in an industry affecting commerce

if (1) it maintains or operates a hiring hall

or hiring office which procures employees for

an employer or procures for employees

opportunities to work for an employer, or (2)

the number of its members (or, where it is a

labor organization composed of other labor

organizations or their representatives, if

the aggregate number of the members of such

other labor organization) is fifty or more

prior to July 1, 1968, or twenty-five or more

on or after July 1, 1968, and such labor

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aaa ar = aoe

organization--

(1) is the certified representative of

employees under the provisions of the

National Labor Relations Act, as amended [>29

U.S.C.A. S 151 et seq.], or the Railway Labor

Act, as amended [>45 U.S.C.A. S 151 et seq.];

or

(2) although not certified, is a national

or international labor organization or a

local labor organization recognized or acting

as the representative of employees of an

employer or employers engaged in an industry

affecting commerce; or

(3) has chartered a local labor

organization or subsidiary body which is

representing or actively seeking to represent

employees of employers within the meaning of

paragraph (1) or (2); or

(4) has been chartered by a labor

organization representing or actively seeking

to represent employees within the meaning of

paragraph (1) or (2) as the local or

subordinate body through which such employees

may enjoy membership or become affiliated

with such labor organization; or

(5) is a conference, general committee,

joint or system board, or joint council

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subordinate to a national or international

labor organization, which includes a labor

organization engaged in an industry affecting

commerce within the meaning of any of the

preceding paragraphs of this subsection.

(£) The term “employee” means an individual

employed by any employer except that the term

“employee” shall not include any person

elected to public office in any State or

political subdivision of any State by the

qualified voters thereof, or any person

chosen by such officer to be on_ such

officer’s personal staff, or an appointee on

the policy making level or an immediate

adviser with respect to the exercise of the

constitutional or legal powers of the office.

The exemption set forth in the preceding

sentence shall not include employees subject

to the civil service laws of a state

government, governmental agency, or political

subdivision. The term “employee” includes any

individual who is a citizen of the United

States employed by an employer in a workplace

in a foreign country.

(g) The term “commerce” means’. trade,

trattic, commerce, transportation,

transmission, or communication amo..g the

several States; or between a State and any

place outside thereof; or within the District

of Columbia, or a possession of the United

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States; or between points in the same State

but through a point outside thereof.

(h) The term “industry affecting commerce”

means any activity, business, or industry in

commerce or in which a labor dispute would

hinder or obstruct commerce or the free flow

of commerce and includes any activity or

industry “affecting commerce” within the

meaning of the Labor-Management Reporting and

Disclosure Act of 1959 [>29 U.S.C.A. S 401 et

seq.]

(i) The term “States” includes a State of

the United States, the District of Columbia,

Puerto Rico, the Virgin Islands, American

Samoa, Guam, Wake Island, the Canal Zone, and

Outer Continental Shelf lands defined in the

Outer Continental Shelf Lands Act [> 43

U.S.C.A. S 1331 et seq.].

(j) The term “firefighter” means an

employee, the duties of whose position are

primarily to perform work directly connected

with the control and extinguishment of fires

or the maintenance and use of firefighting

apparatus and equipment, including an

employee engaged in this activity who is

transferred to a supervisory or

administrative position.

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(k) The term “law enforcement officer”

means an employee, the duties of whose

position are primarily the investigation,

apprehension, or detention of individuals

suspected or convicted of offenses against

the criminal laws of a State, including an

employee engaged in this activity who is

transferred to a supervisory or

administrative position. For the purpose of

this subsection, “detention” includes the

duties of employees assigned to guard

individuals incarcerated in any penal

institution.

(1) The term “compensation, terms,

conditions, or privileges of employment”

encompasses all employee benefits, including

such benefits provided pursuant to a bona

fide employee benefit plan.

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29 U.S.C. 631. Age limits

(a) Individuals at least 40 years of age

The prohibitions in this chapter shall be

limited to individuals who are at least 40

years of age.

(b) Employees or applicants for employment

in Federal Government

In the case of any personnel action affecting

employees or applicants for employment which

is subject to the provisions of section 633a

of this title, the prohibitions established

in section 633a of this title shall be

limited to individuals who are at least 40

years of age.

(c) Bona fide executives or high

policymakers

(1) Nothing in this chapter shall be

construed to prohibit compulsory retirement

of any employee who has attained 65 years of

age and who, for the 2- year period

immediately before retirement, is employed in

a bona fide executive or a high policy making

position, if such employee is entitled to an

immediate nonforfeitable annual retirement

benefit from a pension, profit-sharing,

savings, or deferred compensation plan, or

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any combination of such plans, of the

employer of such employee, which equals, in

the aggregate, at least $44,000.

(2) In applying the retirement benefit test

of paragraph (1) of this subsection, if any

such retirement benefit is in a form other

than a straight life annuity (with no

ancillary benefits), or if employees

contribute to any such plan or make rollover

contributions, such benefit shall be adjusted

in accordance with regulations prescribed by

the Equal Employment Opportunity Commission,

after consultation with the Secretary of the

Treasury, so that the benefit is the

equivalent of a straight life annuity (with

no ancillary benefits) under a rollover

contributions are made.

(ad) Repealed. Pub.L. 99-592, S 6(b), Oct.

31, 1986, 100 Stat. 3344.

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Rule 50. Judgment as a Matter of Law in

Actions Tried by Jury; Alternative

Motion for New Trial; Conditional

Rulings.

(a) JUDGMENT AS A MATTER OF LAW.

(1) If during a trial by jury a party

has been fully heard on an issue and there is

no legally sufficient evidentiary basis for a

reasonable jury to find for that party on

that issue, the court may determine the issue

against that party and may grant a motion for

judgment as a matter of law against that

party with respect to a claim or defense that

cannot under the controlling law be

maintained or defeated without a favorable

finding on that issue.

(2) Motions for judgment as a matter of

law may be made at any time before submission

of the case to the jury. Such a motion shall

specify the judgment sought and the law and

the facts on which the moving party is

entitled to the judgment.

(b) RENEWAL OF MOTION FOR JUDGMENT AFTER

TRIAL; ALTERNATIVE MOTION FOR NEW TRIAL.

Whenever a motion for a judgment as a matter

of law made at the close of all the evidence

is denied or for any reason is not granted,

the court is deemed to have submitted the

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action to the jury subject to a later

determination of the legal questions raised

by the motion. Such a motion may be renewed

by service and filing not later than 10 days

after entry of judgment. A motion for a new

trial under Rule 59 may be joined with a

renewal of the motion for judgment as a

matter of law, or a new trial may be

requested in the alternative. If a verdict

was returned, the court may, in disposing of

the renewed motion, allow the judgment to

stand or may reopen the judgment and either

order a new trial or direct the entry of

judgment as a matter of law. If no verdict

was returned, the court may, in disposing of

the renewed motion, direct the entry of

judgment as a matter of law or may order a

new trial.

(c) SAME: CONDITIONAL RULING ON GRANT OF

MOTION FOR JUDGMENT AS A MATTER OF LAW.

(1) If the renewed motion for judgment

as a matter of law is granted, the court

shall also rule on the motion for a new

trial, if any, by determining whether it

should be granted if the judgment is

thereafter vacated or reversed, and shall

specify the grounds for granting or denying

the motion for the new trial. If the motion

for a new trial is thus’ conditionally

granted, the order thereon does not affect

A65

a

the finality of the judgment. In case the

motion for a new trial has been conditionally

granted and the judgment is reversed on

appeal, the new trial shall proceed unless

the appellate court has otherwise ordered.

In case the motion for a new trial has been

conditionally denied, the appellee on appeal

may assert error in that denial; and if the

judgment is reversed on appeal, subsequent

proceedings shall be in accordance with the

order of the appellate court.

(2) The party against whom judgment as

a matter of law has been rendered may serve a

motion for a new trial pursuant to Rule 59

not later than 10 days after entry of the

judgment.

(ad) SAME: DENIAL OF MOTION FOR JUDGMENT AS A

MATTER OF LAW. If the motion for judgment as

a matter of law is denied, the party who

prevailed on that motion may, as appellee,

assert grounds entitling the party to a new

trial in the event the appellate court

concludes that the trial court erred in

denying the motion for judgment. If the

appellate court reverses the judgment,

nothing in this rule precludes it from

determining that the appellee is entitled to

a new trial, or from directing the trial

court to determine whether a new trial shall

be granted.

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