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argued: August 4, 1987.


Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 84-5381.

Seitz, Mansmann and Greenberg, Circuit Judges.

Author: Mansmann


MANSMANN, Circuit Judge.

This is an appeal from the district court's entry of judgment for the defendant employer under Fed. R. Civ. P. 50(b) notwithstanding the jury verdict for the plaintiffs in this action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. We have jurisdiction under 28 U.S.C. § 1291 to review the final order of the district court. When deciding a motion for judgment notwithstanding the verdict, the trial judge must determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict. Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253 (3d Cir. 1986). Our review of the application of this standard is plenary. Id. We find that the district court erred in failing to afford the plaintiffs the benefit of all reasonable inferences to be drawn from the evidence. Consequently we will vacate the order of the district court and remand for reinstatement of the jury verdict in favor of the plaintiffs.


The plaintiffs are five engineers who were laid off or retired on December 17, 1982 when the defendant Westinghouse Corporation eliminated the job progression of Negotiation Engineer. The plaintiffs were the only employees in that job progression and, at the time of their terminations, they ranged in age from 54 to 62 and had between 16 and 39 years of service with Westinghouse.*fn1 The parties agree that economic conditions necessitated a reduction in force. They also agree that, under the collective bargaining agreement which governs their relationship, the plaintiffs were not eligible to "bump" employees in other job progressions.

The plaintiffs filed this action claiming that, in effectuating the necessary force reduction, the defendants discriminated against the plaintiffs because of their age. The district court had subject matter jurisdiction under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., ("ADEA").

The plaintiffs claimed that the defendants eliminated the plaintiffs' job progression because the engineers in that category were older than engineers in two other salaried job progressions -- namely "Availability Assurance Engineer" and "Applications Engineer" -- which were not eliminated. The plaintiffs claimed that their duties were assumed by Availability Assurance Engineers and Applications Engineers, and that they are qualified to do the work performed by Availability Assurance Engineers and Applications Engineers. The plaintiffs asserted that the defendants could have maintained an adequate workforce by laying off engineers in all three progressions according to their seniority and transferring the duties of the other classifications to the older and more senior Negotiations Engineers. The plaintiffs' theory of recovery was that the jury could logically infer, from the defendant's failure to pursue this course of action, that age was a factor in the defendant's decision to eliminate the plaintiffs' job progression.

At the close of the evidence, the defendants moved for a directed verdict. The motion was denied. The jury was instructed that it might find for the plaintiffs under the ADEA only if age was a determining factor in Westinghouse's selection of the job classification of negotiations engineer for elimination. When the jury returned a verdict for the plaintiffs, the defendants moved for a judgment n.o.v., because of the asserted insufficiency of the evidence or, in the alternative, for a new trial because of asserted trial errors.*fn2 Judgment n.o.v. was granted by the district court. Consequently, no action was taken on the Motion for a New Trial.


A plaintiff may recover under the ADEA only if he proves by a preponderance of the evidence that age was a determining factor in the employer's decision. Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980). He may meet this burden with direct evidence, or when no direct evidence of intent is available, the employee plaintiff may have the benefit of a presumption of the employer's discriminatory intent by first establishing a prima facie case by circumstantial evidence. "This prima facie case is easily made out: a plaintiff alleging a discriminatory layoff need show only that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably." Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir.), cert. denied, 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983).

As in any lawsuit, if the plaintiff fails to establish his prima facie case, the defendant may persuade the district court to dismiss the action. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 75 L. Ed. 2d 403 (1983) (" Aikens "). If the plaintiff successfully proves its prima facie case, the defendant has the "burden of proof at this stage to meet [plaintiff's] prima facie case of discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (" McDonnell Douglas "). To withstand a directed verdict, the defendant must "articulate some legitimate, nondiscriminatory reason" for its action, id. at 802, and must introduce evidence to prove that it acted for this reason. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978). The burden of production then shifts back to the plaintiff, because the ultimate burden to prove discriminatory animus remains with the plaintiff. See e.g. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.) cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) ("Burdine"). The plaintiff may meet this burden either through evidence presented in his case in chief or by way of rebuttal evidence.

The defendant in this case made no attempt to persuade the district court to dismiss the action for lack of a prima facie case. Instead, the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case. Therefore, whether the ...

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