832 F.

2d 258

45 Fair Empl.Prac.Cas. 212,

45 Empl. Prac. Dec. P 37,620
BHAYA, Lal R. and Carner, Richard and Haessler, William J.
and Parzick, Henry A. and Williams, Earle, Appellants,
v.
WESTINGHOUSE ELECTRIC CORPORATION.
No. 87-1026.

United States Court of Appeals,

Third Circuit.
Argued Aug. 4, 1987.
Decided Nov. 2, 1987.
Rehearing and Rehearing En Banc Denied Nov. 30, 1987.

Alan B. Epstein (argued), Kirschner, Walters & Willig, Philadelphia, Pa.,

for appellants.
Dona S. Kahn (argued), Harris and Kahn, Philadelphia, Pa., for appellee.
Before SEITZ, MANSMANN and GREENBERG, Circuit Judges.
OPINION OF THE COURT
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. Sec. 621 et seq. We have jurisdiction under 28 U.S.C. Sec. 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.
I.
2

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.1
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. Sec. 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.2 Judgment n.o.v. was

granted by the district court. Consequently, no action was taken on the Motion
for a New Trial.
II.
6

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, 104 S.Ct. 348, 78 L.Ed.2d 314 (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, 103 S.Ct. 1478,
1481, 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, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)
("McDonnell Douglas "). To withstand a directed verdict, the defendant must
"articulate some legitimate, nondiscriminatory reason" for its action, id. at 802,
93 S.Ct. at 1824, and must introduce evidence to prove that it acted for this
reason. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943,
2949, 57 L.Ed.2d 957 (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, 105 S.Ct. 592, 83 L.Ed.2d
702 (1984); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (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 plaintiff actually did so is
no longer relevant. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482.

When the defendant responds to the plaintiff's proof by offering evidence of the
reason for its treatment of the plaintiff, the factfinder is then in a position to
decide the ultimate factual issue in the case. Id. The question facing the trier of
fact at the close of the evidence in an employment discrimination case is
"whether the defendant intentionally discriminated against the plaintiff." Id. "In
short, the [factfinder] must decide which party's explanation of the employer's
motivation it believes." Id. at 716, 103 S.Ct. at 1482.

10

In this case, the plaintiffs assert that their job classification was selected for
elimination by the defendant because of the age of the engineers remaining in
that job classification. The defendant denies discrimination based on age,
asserting that a reduction in force was necessitated by economic conditions and
its elimination of the job category was based on a lack of need for the services
being performed by negotiation engineers. Thus the issue at trial was framed by
those opposing factual contentions. See McDonnell, 411 U.S. at 801, 93 S.Ct.
at 1823.

11

The issue on this appeal is straightforward. The jury has told us which
explanation it believes, and we are bound by that finding if there is evidence of
record to support it. Our only inquiry is whether, taking the record as a whole
and resolving all factual disputes in favor of the plaintiffs, the evidence and
justifiable inferences therefrom reasonably support the plaintiffs' explanation.
We turn now to consider whether a reasonable juror could have concluded that
the defendant intentionally discriminated against the plaintiffs because of their
age.III.

12

Each plaintiff testified that when he was laid off or retired his remaining work
was transferred to a younger engineer in another job progression, and that
younger engineers were retained to perform work which the plaintiffs were
qualified to perform. The plaintiffs also presented expert testimony of Richard
Andrulis, Ph.D., who opined that the plaintiffs were qualified to perform the
remaining tasks in other job progressions and that the tasks could have been
transferred without a change in plaintiffs' job description. Andrulis testified that
statistical analysis had led him to the conclusion that there was "no question
that age was a determining factor" in the decision to eliminate the plaintiffs' job
progression.

13

The plaintiffs' expert testified that layoffs by seniority within each job family
would have provided the defendants with a workforce capable of carrying out
all tasks that were being performed at the time of the plaintiffs' termination. He
testified that there was substantial financial benefit to Westinghouse in
discharging older workers instead of younger ones. His statistical analysis

showed that the class of engineers most dramatically affected by the layoffs in
general were the Negotiation Engineers, who were substantially older as a
group than the other engineering job families. Negotiation engineers, average
age 48.9 years, were laid off at a 93.3% rate; Availability Assurance Engineers,
average age 35.8 years, were laid off at a 29.4% rate.
14

The district court, in considering the defendant's motion for judgment n.o.v.,
stated that it would decline to consider whether the defendant's evidence
controverted the plaintiffs' evidence inasmuch as, for purposes of a motion for
judgment n.o.v., all disputed questions of fact must be resolved in the plaintiffs'
favor. The district court found that the plaintiffs' evidence showed that the
Negotiation Engineers were on average older than Availability Assurance and
general engineers and were treated less favorably. Inexplicably, however, the
district court then immediately proceeded to credit the defendant's evidence of a
nondiscriminatory reason for its decision to eliminate the plaintiffs' job
progression.

15

The employer's proffered reason for preferring one group of employees over
another was that Westinghouse management determined that the functions
performed by the Negotiations Engineers were expendable without causing too
much disruption of the normal operation of the business. Negotiations
Engineers performed services for both the Marketing Department and the
Availability Assurance Department,3 and heads of both departments agreed that
they could function without the services of the Negotiations Engineers who
coordinated information which was available from other departments.

16

The defendant's evidence consisted exclusively of oral testimony regarding its

reason for elimination of the job. 4 The reason was principally explained by
James Borden, Manager of the Availability Assurance Department with
responsibility for both Availability Engineers and Negotiation Engineers at the
time the plaintiffs were terminated. Evidence regarding the collective
bargaining agreement was provided by the oral testimony of witnesses Borden
and Chester A. Turnbull, Manager of Salary Labor Relations and of Wage and
Salary Administration at Westinghouse.

17

The defendant's witnesses testified that the job tasks could not have been
transferred without engaging in collective bargaining unless assumption of
those tasks would have required no revision of the plaintiffs' job description.
The witnesses asserted that such a redescription would have been necessitated
so that interchangeability was precluded except through collective bargaining.

18

In crediting the defendant's explanation, the district court effectively reversed

18

In crediting the defendant's explanation, the district court effectively reversed

the requirement that in reviewing a jury verdict we are to draw all inferences in
favor of the prevailing party. The proof of this type of case is no different than
any other, and there is no reason in an age discrimination case why testimony
evidencing a reason must be credited by the factfinder.

19

We are reviewing a general verdict. It is impossible to tell whether the

plaintiffs' evidence persuaded the jury that the employer considered age in
addition to the relative expendability of the particular services being performed
by the plaintiffs or whether the jury simply disbelieved the defendant's
explanation for its action. If there is evidence to support either of these possible
reasons for the verdict, the district court erred in granting judgment
notwithstanding the verdict. Viewing the evidence in the light most favorable to
the plaintiffs and drawing competing inferences in their favor, we find that the
record contains indirect evidence which, if credited, raises an inference of
discrimination.

20

The district court erroneously determined that the indirect evidence supporting
the plaintiffs' prima facie case "cannot, without more, give rise to an inference
of age discrimination in light of defendant's articulation of a legitimate,
nondiscriminatory reason for its decision to eliminate the negotiation engineer
job progression." The district court apparently thought that the defendant
dispelled any inference of discrimination merely by introducing testimony of a
legitimate reason for its actions.

21

Evaluation of witness credibility is the exclusive function of the jury, and

where the only evidence of intent is oral testimony, a jury could always choose
to discredit it. Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1234
(D.C.Cir.1984). See also Dreyer v. Arco Chemical Div. of Atl. Richfield, 801
F.2d 651, 655-56 (3d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1348, 94
L.Ed.2d 519 (1987).

22

The plaintiffs introduced evidence that (1) they belong to a protected class; (2)
they were qualified for their positions; (3) they were dismissed despite being
qualified; and (4) they ultimately were replaced by persons sufficiently younger
to permit an inference of age discrimination. See Chipollini v. Spencer Gifts,
814 F.2d 893 (3d Cir.), cert. dismissed, --- U.S. ----, 108 S.Ct. 26, 97 L.Ed.2d
915 (1987); Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d
Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986).
From this the jury can infer, if such actions remain unexplained, that it is more
likely than not that such actions were based on an illegal discriminatory
criterion such as age. Id.

23

The district court also relied erroneously upon an asserted absence of evidence
"directly impugning the nondiscriminatory reason articulated by defendant for
its decision to eliminate the negotiation engineer position." The testimony of
the plaintiffs' expert during their case in chief specifically takes issue with the
defendant's assertions that the plaintiffs were not qualified to perform work still
existing at Westinghouse. The expert also challenged the defendant's assertion
that such work could not have been transferred to the plaintiffs as readily as the
plaintiffs' work was transferred to engineers in other progressions.

24

The plaintiffs' evidence was adequate to support an inference, initially a

presumption, of discrimination. When the defendant produced evidence of a
nondiscriminatory reason, the presumption dropped from the case. A
permissible inference remained, however, to create an issue of fact. In addition,
the testimony of the plaintiffs' expert raised issues of fact with respect to the
defendant's asserted reason.

25

Because we must resolve all factual issues in favor of the plaintiffs, we must
assume that the factfinder did not believe the defendant. "When all legitimate
reasons for rejecting an applicant have been eliminated as possible reasons for
an employer's actions, it is more likely than not the employer, who we generally
assume acts only with some reason, based his decision on an impermissible
consideration such as (age)." Furnco Construction Corp. v. Waters, 438 U.S. at
577, 98 S.Ct. at 2950 (emphasis in original). Therefore, the inferences from the
plaintiffs' prima facie case, together with the testimony provided by the
plaintiffs' expert which rebuts the proffered explanation by the defendant, may
support a verdict in their behalf.

IV.
26

We find that, in considering the defendant's motion for judgment

notwithstanding the verdict, the district court failed to give the plaintiffs the
benefit of all reasonable inferences to be drawn from the evidence. Therefore
we will vacate the order of the district court and remand for reinstatement of
the jury verdict in favor of the plaintiffs. On remand the district court may
consider the contentions of the defendant contained in the Motion for a New
Trial.

Plaintiff Lal R. Bhaya was 58 years of age and had 16 years of service; Richard
Carner was 54 and had 31 years of service; William J. Haessler was 55 and had
35 years of service; Henry A. Parzick was 62 and had 39 years of service, and

Earle Williams was 59 with 33 years of service

2

In addition to its claims regarding the sufficiency of the evidence, the defendant
based its new trial motion on asserted errors involving, e.g., admission and/or
exclusion of certain evidence, jury instruction, and prejudicial comments in the
presence of the jury

Plaintiff Bhaya was a Negotiations Engineer with the Marketing Department,

while the other plaintiffs were Negotiations Engineers with the Availability
Assurance Department

The defendants apparently maintained no contemporaneous "paper trail" to

evidence the course of business planning and decision-making leading to the
effectuation of the reduction in force