Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually, Defendant. : : : : : : : : : :

C.A.No.04-1394-GMS

PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS ALL CLAIMS FOR EQUITABLE RELIEF, INCLUDING BACK PAY AND FRONT PAY I. BECAUSE INSTATEMENT HAS NEVER BEEN A FEASIBLE REMEDY IN THIS CASE, PLAINTIFF CAN BE AWARDED FUTURE DAMAGES. A. The Law of Instatement. "The equitable remedy of ordering promotion to a position illegally denied is referred to as `instatement.'" Bullen v. Chaffinch, 336 F.Supp.2d 357, 358 (D.Del. 2004). "The law of instatement tracks the law of reinstatement." Id. at 359. Instatement is the "preferred remedy," but may not be feasible in all cases, particularly in those cases in which a position is no longer available at the time of judgment or the relationship between the parties has been so damaged by animosity that instatement is impracticable. Id. The Third Circuit also has repeatedly explained that "[r]einstatement may not be feasible when there is no position left or the relationship between the two parties is too hostile." Wilhelm v. Pennsylvania, 118 Fed.Appx. 611, 614 (3d Cir. 2004); accord Maxfield v. Sinclair International, 766 F.2d 788, 796 (3d Cir. 1985).1 "In such circumstances, the remedial purposes of the [civil rights] statute would be thwarted and plaintiff would suffer irreparable harm if front
1

"This is a question for the District Court." Wilhelm, 118 Fed.Appx. at 614.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 2 of 29

pay were not available as an alternate remedy to reinstatement." Maxfield, 766 F.2d at 796. B. Instatement to the Rank of Major Is Neither Feasible Nor Possible in This Case. 1. There is No Position Available. "Courts are particularly reluctant to order a remedy that will have the effect of `bumping' an innocent, incumbent employee." Bullen, 336 F.Supp.2d at 360. Simply put, there are no vacancies on the Executive Staff. In order to promote plaintiff, a current member of the Executive Staff would have to be `bumped,' an action which the case law reveals courts prefer not to take. Id. 2. There is Irreparable Animosity Between the Parties. a. Some Relevant Precedent. In Riseman v, Advanta Corp., 2001 WL 1175126 (E.D.Pa. Sept. 12, 2001) (affirmed in part and vacated in part on other grounds by Riseman v. Advanta Corp., 39 Fed.Appx. 761 (3d Cir. 2002)), the Eastern District discussed a situation where "[u]nderstandably, ... [a plaintiff] requested front pay rather than reinstatement." Id. at *10. The court noted that, as in our present case, "[i]t was abundantly evident during this litigation (and in repeated settlement attempts) that there was irreparable animosity between the parties." Id. at n. 16. Similarly, in Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir. 1995), a plaintiff sought prior to trial to have reinstatement excluded as a potential remedy. Given the unclear state of the record at the time, the district court deferred its decision until post-trial, but ultimately held that reinstatement was not feasible because "irreparable distrust and animosity developed between the [parties] as a result of the" adverse action that was taken and "the litigation that followed in its wake." Id. In refusing to find that the district court had abused its discretion, the Third Circuit noted that the "record contains ample evidence of the hostility 2

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 3 of 29

caused by this litigation." Id. Specifically, the Third Circuit noted the state entity's "continuing ... attack on [plaintiff's] professional competence and personal integrity" as well as the defendants' own "litigation strategy" clearly demonstrated the irreparable animosity that made reinstatement an entirely inappropriate remedy. Id. (emphasis added). As discussed below, the only material difference between our present case and Feldman is that our record on animosity was clear long before trial. And given the public safety context in which plaintiff works, the existence of such animosity has been found to be sufficient to order front pay rather than reinstatement to prevent and avoid risks to the public. For example, in Bianchi v. City of Phila., 80 Fed.Appx. 232, 237 (3d Cir. 2003), the Third Circuit refused to find an abuse of discretion in the district court's determination that front pay was the appropriate damages remedy because the relationship between the parties had been irreparably damaged due to a lack of mutual trust and respect, and that reinstatement of [the plaintiff] as a firefighter would put lives in danger because of this damage. b. The Animosity That Exists. The animosity that exists in our case stems from several sources. First, from the overall defense litigation strategy in this case. Second, from the serious animosity that exists between plaintiff and current Colonel MacLeish on whose Executive Staff she would serve. (1). The Defense Litigation Strategy. The defense litigation strategy in this case has consisted of character assassination and relentless attacks upon plaintiff's professional competence and personal integrity. Plaintiff has been accused of serious misconduct covering the entire range of her professional career. For example, the defense continues to drag up 20 year old alleged incidents from when she was a Trooper First Class and claim that these 3

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 4 of 29

matters from the early 1980's are the reasons she was not promoted from Captain to Major 20 years later. Similarly, plaintiff's personal life has been attacked and despite the fact that she has been a happily married woman for 18+ years, she has been repeatedly accused of adultery, a host of sexual improprieties and a complete lack of sexual mores. Counsel respectfully submits that the resultant animosity has been apparent throughout the course of this litigation. (2). MacLeish's Anger With Plaintiff. Even though defendant Chaffinch is no longer Colonel, his successor Colonel MacLeish is heavily involved in this case. It is Colonel MacLeish's Executive Staff that onto which the Court would have to order plaintiff instated. However, Colonel MacLeish also is unhappy with plaintiff. Until very recently, Colonel MacLeish himself was a defendant in this litigation. Plaintiff had earlier amended her lawsuit to include a claim against MacLeish for releasing her internal affairs file to the Delaware media in retaliation for her filing the present lawsuit against his good friend defendant Chaffinch. MacLeish vehemently denied the claims against him and testified at his deposition in this and in the Price and Foraker cases regarding his negative feelings towards those who file lawsuits against he and the Division. That Colonel MacLeish bears hard feelings towards plaintiff for her lawsuit should come as no surprise. Noticeably absent from the defense submission on this issue is any mention of the fact that current Colonel MacLeish wants plaintiff Capt. Conley gone so badly that he is willing to pay her several hundred thousand dollars if she retires immediately (a non-negotiable term of the unsuccessful settlement negotiations). As defense counsel have repeatedly represented during settlement discussions, the relationship between current Col. MacLeish and plaintiff Captain Conley is very strained and is causing serious problems in the workplace. 4

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 5 of 29

Given the defense settlement position that the working relationship is so badly damaged that plaintiff must retire from the Division 10 years prematurely, it is disingenuous for the defense to now assert that plaintiff must seek to be instated to a position as Major on the Colonel's own Executive Staff where she would work on a daily basis in even greater proximity to the very Colonel who so very adamantly wants her gone because he claims he cannot work with her. If Colonel MacLeish cannot work with plaintiff in her position as a Captain because of the hostility between them, a fortiori, he cannot work with her as a Major. As the defense in this case has previously represented in court filings, a position as Major on the Colonel's Executive Staff is the equivalent to a position on the President's Cabinet. The Majors are the Colonel's close advisors who work with him on a day to day basis and who are expected to carry out the wishes and dictates of the Colonel himself. The Bullen case involving defendant Chaffinch is instructive on this issue. There, Judge Farnan found instatement to be the appropriate remedy because there was, inter alia, no evidence of any animosity between Plaintiffs and Defendants that would militate against promoting them ... [and because the plaintiffs] advanced evidence, which is unrebutted by Defendants, that none of the duties of a sergeant, a position five ranks below Colonel, would involve regular daily contact with Defendant Chaffinch. Bullen, 336 F.Supp.2d at 360. Given their immediate proximity in the DSP hierarchy where they work together on a daily basis and in light of MacLeish's admittedly hostile feelings towards Captain Conley, instatement is not a feasible remedy. 3. Plaintiff Waived Reinstatement As a Remedy Because She Would Lose On the Issue Under the Case Law. Plaintiff did not waive the remedy of instatement because she does not want to be Major. Indeed, it has long been one of plaintiff's career goals to be the

5

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 6 of 29

first female Major in the DSP. Instead, as discussed above, plaintiff waived such a remedy because there is no chance under the case law that she would ever be ordered promoted to the rank of Major because of the animosity between the parties and because the positions at issue are no longer available. As a result, it would be a waste of time and judicial resources to present evidence in support of such a futile effort. 4. Summary. Accordingly, because instatement is not a feasible remedy, an award of future damages is required to make plaintiff whole. II. BECAUSE PLAINTIFF INCLUDED HER CLAIM FOR FUTURE DAMAGES IN HER COMPLAINT, MAXFIELD GOVERNS OUR PRESENT CASE, NOT WEHR. Defense reliance upon Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980), in support of their claims is misplaced. In Maxfield, the Third Circuit distinguished and explicitly limited the holding of Wehr. As the Maxfield court explained, the Wehr plaintiff "had not requested any future relief in his complaint and had specifically disclaimed any desire for reinstatement" to his prior position. Maxfield, 766 F.2d at 796. The Third Circuit found the lack of a specific request for future damages in the complaint to be the key distinguishing factor which removed the Maxfield plaintiff from the scope of Wehr. Id. at 796-97. "In contrast, here, the complaint contained a specific request for future damages, thereby preserving the issue. Id. Similarly, in our present case, the Complaint contained a specific request for future damages, thereby preserving the front pay issue. (See D.I. 1 at Wherefore Clause at III requesting, inter alia, "judgement against the individual defendant for ... future or front pay.").2 The defense efforts to distinguish Maxfield are without merit. Maxfield has been applied
2

The First Amended Complaint (D.I. 7), contained the same provision. 6

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 7 of 29

to situations involving a pretrial waiver of reinstatement due to the irreparable hostility between the parties. For example, in Riseman, 2001 WL 1175126, *10, the Eastern District of Pennsylvania found that the right to seek front pay was preserved by the plaintiff's request for future damages in his complaint, despite a pretrial waiver of reinstatement as a remedy. Id. Accordingly, plaintiff's inclusion in her complaint of a request for future damages places her case well within the scope of Maxfield. III. BOTH FRONT AND BACK PAY CAN BE RECOVERED AGAINST DEFENDANT CHAFFINCH TO ELIMINATE THE EFFECTS OF HIS DISCRIMINATORY MISCONDUCT WHICH VIOLATES THE FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE. A. The Law of Federal Remedies. "The touchstone of [civil rights] remedies is to make persons whole for injuries suffered on account of unlawful employment discrimination." Kunda v. Muhlenberg College, 621 F.2d 532, 549 (3d Cir. 1980) (internal punctuation omitted). "[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (Fourteenth Amendment race discrimination). Indeed "the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. U.S., 380 U.S. 145, 154 (1965); accord Albemarle Paper Co., 422 U.S. at 418 (same - Title VII); U.S. v. Virginia, 518 U.S. 515, 547

7

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 8 of 29

(1996) (same - Fourteenth Amendment Equal Protection). B. Discussion. Without citation of legal authority, defendant claims that Having dismissed all claims except those against Chaffinch in his individual capacity, Plaintiff is not entitled to an award of back pay or front pay as items of damages, as such damages constitute equitable relief for which Chaffinch is not legally liable. (OB at 2) (citing no authority). Similarly, "former Colonel Chaffinch in his individual capacity the sole remaining defendant - cannot legally be liable for the type of relief Plaintiff seeks." (OB at 4) (citing no authority). The defense argument in this regard is grounded in a fundamental misunderstanding of the law of federal remedies. The defense submission makes clear their confusion regarding the word "injunctive" and the word "equitable." Unfortunately for defendants, these terms are not identical. Although an injunction is an equitable remedy, not all equitable remedies are injunctions. Although plaintiff waived her claim of instatement - an injunctive remedy - nowhere at the pretrial or elsewhere did plaintiff ever waive her right to seek other forms of equitable relief such as money damages.3 Try as the defense might, plaintiff never waived any request for money damages. All that was waived was the request for injunctive relief of instatement due to the futility of trying to seek such a remedy given our record. The defense claim that Chaffinch is not liable for a damages award in his individual capacity for injuries caused by his illegal actions is similarly without merit and simply clouds the

See, e.g. Pretrial Transcript at 33 - Mr. T. Neuberger noting that the request for the injunctive relief of instatement to bump the comparators from their positions is being dropped and explicitly stating that this "is [now] solely a case for money damages." (attached at Tab A of defendants' OB). 8

3

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 9 of 29

issues. (OB at 4).4 Defendant appears to claim that the dismissal of the official capacity defendants now bars plaintiff from seeking a back pay or front pay award. The flaw in this argument is it wrongly presupposes that such an award would be recoverable against the official capacity defendant. (See OB at 4 - noting the defense position that "front pay" as an equitable remedy "can only be assessed against the employer under § 1983.").5 But it is hornbook law

that the Eleventh Amendment prevents plaintiffs from suing or recovering from the State of Delaware, its agencies or official capacity defendants damages of any kind. See, e.g. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); U.S. Const. Amend. XI. A damages award simply cannot run against the State of Delaware or any of its officials in their official capacities. The defendant in this case is the individual capacity defendant Chaffinch. He has always been the only defendant against whom plaintiff could collect a damages award because of the Eleventh Amendment, and plaintiff has always sought to impose personal liability upon him for his illegal actions. See, e.g. Kentucky v. Graham, 473 U.S. 159, 165 (1985) ("Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color

Plaintiff is unclear why the defense cites Lewis v. State of Del., 986 F.Supp. 848, 851 (D.Del. 1997). (OB at 4). The quoted passage supports plaintiff's argument - that an individual defendant is only liable for monetary damages. The quoted passage also stands for the unremarkable proposition that reinstatement is not a remedy that can be affected against an individual defendant - only an official capacity one. This is not surprising and it is because plaintiff had dropped her request for instatement that she dropped the official capacity defendants from this case. They were no longer needed given that plaintiff only seeks money damages against the individual capacity defendant. Of course, defendants cite no authority to support the proposition that an equitable remedy cannot be assessed against an individual. Indeed, such an attempt would violate basic principles of equity. See, e.g. Official Committee of Unsecured Creditors of Cybergencis Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 568 (3d Cir. 2003) ("Equity eschews mechanical rules; it depends on flexibility") (internal punctuation omitted); Young v. Higbee Co., 324 U.S. 204, 209 (1945) ("Equity looks to the substance and not merely to the form."). 9
5

4

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 10 of 29

of state law."). This includes front pay, back pay and the other elements of a damages award that are necessary to right the wrong that has been done and restore plaintiff to her rightful position. Plaintiff waives an answering brief in this matter.

Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: June 7, 2006 Attorneys for Plaintiff

10

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 11 of 29

Unreported Opinions

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 12 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 1

Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania. Milton RISEMAN v. AD VA NT A COR P., et al. No. 98-CV-6671. Sept. 12, 2001.

promoted to President and CEO of Adv anta Mo rtgage Corporation, USA ("Advanta Mortgage"). (11/14/00 at 60). FN1 From 1992 to 1997, Riseman's performance was well received, and he was credited with having saved, turned around, and built the mortgage unit. (P-51-54; P-116; 11/1 4/00 at 105-12 5; 11/17/00 at 64-65; 11/20/00 at 61-63, 87-88; 11/21/00 at 47-65; 11/29/00 at 80).

John M. Elliott, Mark J. Schwemler, Adam B. Krafczek, Jr., Raym ond J. Santarelli, Elliott, Reihner, Siedzikow sky, and Egan, P.C. , Blue Bell, PA, Patricia C. Collins, Elliott, Reihner, Siedzikowski and Egan, P.C ., Blue Bell, PA, for M ilton Riseman, Plaintiff. Robert M. Goldich, Wo lf, Block, Schorr and Soliscohen LLP , for Ad vanta C orp., Defendant. EXPLANATION AND ORDER BRODY, J. *1 On Decemb er 5, 2000 , a jury awarded plaintiff Milton Riseman $3,939 ,126 in dam ages against his former emp loyer, Adv anta C orporatio n and Adv anta Mo rtgage Corporation, USA ("Advanta"). The jury determined that Advanta was not liable for age discrimination against Riseman, a 62 year-old executive, but that it had retaliated against him in violation of the Age Discrimination in Employment Act. The jury also found Advanta liable for breach of contract, detrimental reliance, and violation of the Pennsylvania Wage Payment and Collection Law. Advanta now mo ves for judgment as a matter of law and for a partial new trial. Riseman moves for a partial new trial on other grounds. The motions will be denied.

FN1. At the time of trial, Advanta M ortgage was a who lly-owned sub sidiary o f Advanta Corporation. (11/14/00 at 68; 12/1/00 at 164-67). In April 199 7, Ad vanta w as examining strategic alternatives, including a potential sale of all or a part of its business. (11/17/00 at 66). To further the strategic initiative, Adv anta offered bonus opportunities to more than 50 key management employees. (P-132; 11/17/00 at 123-24). In a letter dated April 28, 1997, Chairman Dennis Alter offered Riseman a bonus equal to 200% of his base salary. This "199 7 bo nus" would be paid in the event of a "change of contro l affecting yo ur group." According to the letter, A lter had "sole discretion" to determine whether Riseman satisfied the bonus conditions. Below his signature, Alter wrote: "M ilt, Thanks for Being A Total Mench During This P rocess. D." (P-46; 11/17/00 at 64-66, 118-19). FN2

FN2. According to W ebster's Ninth New Collegiate Dictionary, "men sch" mea ns a "person of integrity and honor." (P-278). During the strategic process, Riseman had helped BT W olfensohn to evaluate various possible transactions. (11/14/00 at 128-29). In October 1997, Advanta announced an agreem ent with Fleet Financial Group, pursuant to which Fleet would acqu ire Ad vanta's consumer cred it card business. (P-212). When the deal closed in February 1998, Advanta Mortgage emerged as Advanta's most critical business unit, accounting for 85% of the entire

I. Factual Background In 1992, Ad vanta hired Riseman from Citibank. (11/14/00 at 57-60, 68-69). In 1994, Riseman was

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 13 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 2

co rporation's revenues, assets and profits. (P-8; P-251; 11/20/00 at 6, 87-88; 11/21/00 at 47-65). Given the sudden spotlight on the mortgage unit, the "Office of the Chair" exercised closer scrutiny over Riseman and Advanta Mortgage. (11/14/00 at 126, 145-47; 11/17/00 at 138, 142; 11/27/00 at 103; 11/29/00 at 129 ).FN3

FN3. The "Office of the C hair" consisted of Ad vanta C h a i rm a n D e nn is A lt e r, Vice-Chairman W illiam Rosoff, and P resident Olaf Olafsson. Riseman reported to the Office of the Chair. (11/14/00 at 140 , 144). Advanta did not awa rd Risem an the 199 7 bonus. (11/17/00 at 65-66). However, Advanta did award the bonus to 54 emp loyees who w ere tran sferred to Fleet, and at least 13 emp loyees whose business units did not experience a change of control. (11/14/00 at 132; 11/17/00 at 120, 138-66). Dennis Alter and W illiam Rosoff remained at Advanta and each received $5 million bonuses. (11/17/00 at 141-42; 12/1/00 at 61-65). Elizab eth M ai, who also remained at Advanta, received a $1.5 million bonus. (11/17 /00 at 1 39; 11/28/00 at 9; 11/29/00 at 226-27). *2 In March 1998, Alter orally extended Riseman another bonus oppo rtunity, the "1998 b onus." (11/14/00 at 145-51). On May 12, 1998, the verbal promise was memorialized. According to the terms of the memorandum, Riseman would receive $400,000 on March 31, 1999, subject to three conditions: (1) exercising "flexibility and cooperation," (2) keeping the arrangement "confidential," and (3) "being here at the time." The Office of the Chair would determine whether Riseman fulfilled these criteria. (P-48). On a yearly basis, Advanta also awarded Adv anta Management Incentive Program ("AMIP") bonuses to key executives, including Riseman. (11/14/00 at 149). These bonuses were for an unliquidated amount, based upon the executive's individual performance and the performance of his business unit. T he AM IP bonus could be earned by, and was paid to, executives who did not rem ain employed for the entire year. (11/17/00 at 14-15).

On Augu st 3, 19 98, A dvanta informed Riseman that he was being replaced with a 42 year-old as President and CEO, but that he could stay on as "Chairman" of Advanta Mortgage. (11/14/00 at 64-66, 159-61). Advanta promised Riseman the same salary and bonus opportunities he enjoyed as President and CEO. (11/14/00 at 161). Riseman accepted the Chairman position and was relocated to the executive suite of Advanta's corpo rate headq uarters. (11/14/00 at 163-65; 11/16/00 at 10-15 ). After three days under the new arrangement, Riseman concluded that the Chairman position was not a "re al" job. (11/14/00 at 166-67; 11/16/00 at 15-16). On August 16, 1998, Riseman met with Vice-Chairman W illiam Rosoff to voice his grievances. (11/16/00 at 19-20). On August 17, 199 8, Riseman consulted Fred Blume, an attorney with Blank, Rome , Com isky & McCauley LLP. (11/15/00 at 3-6). In a letter of August 17, 1998, Risem an's attorney threatened Adv anta with age-discrimination charges. (P-55; 11/15/00 at 7-8). In a letter response dated August 18 , 199 8, Ad vanta's counsel denied the charges, but promised that "Mr. Riseman remains employed by the company." (P-56; P-57; 11/15/00 at 9-12). On that same day, R osoff told Riseman to "go home," and not to report to work. (11/14/00 at 66-67; 11/15 /00 at 11-13). After August 18, 199 8, Rise man performed essentially no further services fo r Advanta. (11/16/00 at 31-32 ). On August 28, 1998, Ad vanta published an internal newsletter advising its employees that Riseman had resigned his position as C hairman. (P-58). On September 2, 1998, Riseman filed formal charges of age discrimination with the Equal Employment Op portunity Com mission. (11/14/00 at 67). On October 23, 1998, Ad vanta sent Riseman a letter inform ing him that he was being separated from the payroll. (P-60). There was no evidence that Riseman received any alternative offer of employment during or imm ediately following his separation from Advanta. After app roxim ately eight months w ithout full-time emp loyment, Riseman accepted a new job with lower salary and inferior bonus opportunities. (11/14/00 at 63; 11/15/00 at 90). Riseman never received the 1997 bonus, the 1998 bonus, the 1998 AM IP bonus, or any

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 14 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 3

severance pay from Advanta. *3 On December 23, 1998, Riseman filed a complaint in federal district court. Among other things, the Comp laint and Amended Comp laint alleged age discrimination and retaliation under the Age Discrimination in Em ploym ent Ac t ("AD EA "), 29 U.S.C. § 621 et seq., breach of contract, detrimental reliance, fraud, negligent misrepresentation, and violation of the Pennsylvania W age Payment and Collection Law ("W PC L"), 43 P .S. § 260.1 et seq. After two years of acrimonious litigation, the case went to trial. From November 14, 2000 to December 4, 2000, an attentive jury evaluated the evidence supporting Riseman 's claims. At the close of plaintiff's evidence, the defendants moved for judgment as a matter of law. The motion was granted in favor of all defendants on Riseman's fraud and negligent misrepresentation claims. With respect to detrim ental reliance, judgment was granted to the individual defendants, Dennis Alter, W illiam Rosoff, and Olaf O lafsson. T he mo tion was denied as to all other claims. On Decemb er 5, 2000, the jury returned its verdict. The jury found Adv anta liab le for retaliation under the ADEA, breach of contract, detrimental reliance and violation of the W PCL, but not liable for age discrimination. In response to special interrogatories, the jury determined that the ADEA violation was "willful," and that Advanta had no "good faith" basis to withhold Riseman's wages. The jury awarded total damages of $3,939,126, including $1,377,125 in ADEA "back pay" and $2,562,001 under the WP CL. Judgment was entered accordingly on December 7, 2000.

Advanta waived the right to renew its motion for judgment as a matter of law, or to challenge the sufficiency of the evid ence in any way. Failure to move for a directed verdict at the close of all evidence forecloses the defendant from renew ing a Rule 50 motion after the verdict has been rendered. See Greenleaf v. Ga rlock. Inc., 174 F.3d 352, 364-65 (3d Cir.1999); Beebe v. Highlan d Ta nk & M fg. Co ., 373 F.2d 886, 888 (3d Cir.1967). In add ition, failure to move for a directed ve rdict at the close of all evidence "wholly waives the right to mount any post-trial attack on the sufficiency of the evidence." Yohannon v. Keene Corp., 924 F.2d 1255, 1262 (3d Cir.1991); see also Gebhardt v. Wilson Freigh t Forwarding Co., 348 F.2d 129, 132 (3d Cir.1965). Advanta moved for judgment as a matter of law after Riseman rested his case, but did not specifically renew that motion at the close of all evidence. However, there is some indication in the record that Riseman's counsel and the Court may have implicitly understood Advanta's counsel to have renewed the motion. (12/4/00 at 129-32). Therefore, I will not find that Advanta has waived its right to mount a post-trial attack. Cf. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 183-84 (3d Cir.1992); Keith v.. Truck Stops Corp., 909 F.2d 743, 744 (3d Cir.1990); Aco sta v. Honda Motor Co., Ltd., 717 F.2d 828, 831-32 & n. 3 (3d Cir.1983).

A. Advanta's Motion for Judgment as a Matter of Law *4 Pursuant to Federal Rule of Civil Procedure 50, Advanta renews it motion for judgment as a matter of law. Judg ment as a matter of law is appropriate only where the record is "critically deficient of that minimum quantum of evidence from which a jury might reaso nably afford relief." Starceski v. W estingho use Elec. Corp., 54 F.3d 1089, 1095 (3d Cir.1995); Dunn v. Hovic, 1 F.3d 1362, 1364 (3d Cir.1993); Limbach Co. v. Sheet Metal Workers Int'l Ass'n, AFL-CIO, 949 F.2d 1241, 1261 (3d Cir.1991) (en banc ). A court must review the record in the light most favorable to the verdict winner, resolving all conflicts in the evidenc e in his favor. See Williamson v. Consolidated R ail Co rp.,

II. Discussion Advanta moves for judgme nt as a matter of law and for a new trial with respect to all claims on which the jury found against it at trial. Riseman req uests a new trial for all claims on which he did no t preva il. The motio ns will be denied. As a preliminary matter, there is a strong argument that

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 15 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 4

926 F.2d 1344, 1348 (3d Cir.1991). After giving the prevailing party the bene fit of every fair and reasonable inference, the motion must be denied unless the evidence is insufficient to support the verd ict. See Blum v. Witco Chem ical Corp., 829 F.2d 367, 372 (3d Cir.1987); Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.1984).

very least, Ad vanta "communicated" to Riseman that he was employed as of August 18, 1998. (P-56; P-57). On December 5, 2000, Advanta's counsel confirmed to the Court that Riseman remained employed as of August 18, 1998 . (12/5/00 at 74-76, 80). *5 Thus, the jury had sufficient evidence to conclude that Advanta term inated Risem an, and /or de nied him bonuses and severance, after he had en gaged in protecte d activity on August 17, 1998. Viewing the inferences in the light most favorable to the verdict winner, the jury was well within its right to find retaliation under the ADE A. See Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir.1997) (evidence at trial supported causal link between com plaints of discrimination and termination); Delli San ti v. CN A Ins. Co., 88 F.3d 192 (3d Cir.1996) (evidence at trial allowed jury to find retaliation).

(1) ADEA Retaliation The jury found A dvanta liable for retaliation under the ADEA. See 29 U.S.C. § 623(d). In its motion for judgment as a matter of law, Advanta claims that the jury could not have concluded that Advanta took any adverse employment action against Riseman after he had engag ed in protected activity. Ad vanta insists that all adverse employment decisions were made and communicated to Riseman before he asserted an age-discrimination com plaint. See Delawa re State College v. Ricks, 449 U.S. 250, 258 (1980) (statute of limitations for employment discrimination accrues when decision is "made and communicated" to employee). This is incorrect. T here w as ample evidence for the jury to conclude that Advanta retaliated against Riseman after he asserted an age -discrim ination c omp laint. Advanta states that its decision to move Riseman from the position of "President and CEO" to "Chairman" was made and communicated on August 3, 1998 , before Riseman engaged in protected activity. However, consistent with its finding on age discrimination, the jury could have concluded that Riseman's shift of positions within Ad vanta Mortgage was not the relevant retaliation. Instead, the jury could have found retaliation in Ad vanta's decision to terminate Riseman altogether, as well as to deny him bonuses and severance. These were not inevitable consequences of Rise ma n's move to the Chairman position, but independent sources of retaliation. See Ricks. 449 U.S. at 257 -58 & n. 9 (distinguishing between inevitab le consequences of earlier action and independent forms of discrimination). Riseman complained about age discrimination on August 17, 1998 and remained employed with Adv anta as of August 18, 1998. (P-55; 11/15/00 at 6-12). At the

(2) Breach of Contract: 1998 Bonus Advanta also contends that the jury should not have been allowed to consider the 1998 bonus under a breach of contra ct theory because: (1) Advanta's retention of discretion to determine whether Riseman fulfilled the bonus cond itions preclud ed formatio n of a contra ct; (2) Advanta's retention of disc retion to decide whether or not Riseman fulfilled the bonus conditions was "abso lute," and (3) Riseman did not fulfill the contractual condition requiring him to be employed with Advanta on March 31, 199 9. T hese arguments fail. Advanta claims that the 1998 bonus co uld not give rise to a contract since, by retaining discretion to evaluate fulfillment of the bonus criteria, Advanta committed itself to nothing. However, Advanta did not strike an "illusory bargain" because Riseman enjoyed a reaso nable expe ctation that Ad vanta w ould exercise its discretion in "good faith." See U.S . v. Isaac, 141 F.3d 477, 482-84 (3d Cir.1998) (contract could be formed even where one party reserves "sole discretion" to perform its part); Ga utney v.. Amerigas Propane, Inc., 107 F.Supp.2d 63 4, 640, 646-47 (E.D.Pa.2000) (contract could be formed even where corp orate officer has "final disc retio n" to determine plaintiff's eligibility for bonus under M anagement Incentive Plan); Kofsky v.

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 16 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 5

Chemical Resid ential Mo rtg. Co rp., 1999 W L 1016976 * 3 (E.D.Pa.199 9) (contract for commissions could arise, even where defendant retains discretion over commission program). Thus, a contract could have been formed with respect to the 19 98 bonus. FN4

FN4. The jury was not instructed to assume that a contract existed. Rather, the jury was provided criteria with which to evalua te whether or not one or more contracts had been formed. (12/5/00 at 60-65). Second, Adva nta's discretion to award the 1998 bonus to Riseman was not "absolute." See Goldstein v. Johnson & Johnson, 251 F.3d 4 33, 444-46 & n. 7 (3d Cir.2001) (even where party has "sole authority" or "final and conc lusive" authority to interp ret agre ement, discretion must be exercised in goo d faith); Sterling Nat. Mortg. Co., Inc. v. Mo rtgag e Co rner, In c., 97 F.3d 39, 44 (3d Cir.1996) (even where party has "total discretion" or "unbound ed discretion" und er contract, discretion must be exercised in good faith"). Under the covenant of good faith and fair dealing, "[e]very contract impo ses upon ea ch pa rty a duty of good faith and fair dealing in its performance and its enforcement." Restatement (Second) of Contracts § 205 & Cmt. a. This implied duty may be breached where there is "interference with or failure to cooperate in the other party's performance." Som ers v. Som ers, 418 Pa.Super. 131 , 136-39, 613 A.2d 1211, 1213-15 (1992). *6 Consistent with its finding that there was no "good faith" basis to withhold Riseman's wages under the WP CL, and that Adv anta's violation of the ADEA was "willful," the jury was entitled to conc lude that Advanta denied Riseman the 1998 bo nus in violation of the covenant of good faith and fair dealing. Accordingly, Advanta is not entitled to judgment as a matter of law on this ground. Finally, Advanta asserts that under the terms of the May 12, 1998 m emorandum, Riseman was required to be employed with Advanta on March 31, 1999. Riseman did not fulfill this condition, argues Advanta, because he was terminated before March 31, 1999. In spite of

Advanta's paraphrase, the March 31, 1999 condition requires "being here at the time." (P-48). "It is hornbook law that if the relevant terms in a contract are ambiguo us, the issue must go to a jury." Emerson Radio Corp. v. Orio n Sa les, Inc., 253 F.3d 159, 163 (3d Cir.2001). With respect to the ambiguous phrase, "being here at the time," Riseman testified that he had to agree to stay with Advanta through March 31, 1999. (11/14/00 at 145-51; 11/15/00 at 133-34). FN5 The jury could conclude that Riseman's agreement to stay with Advanta during a crucial transition perio d satisfied this contractual cond ition. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1271-73 (3d Cir.1979) (en banc ) .FN6

FN5. "Being here at the time" is ambiguous because it is "capable of more than one reasonable interpretation." Pacitti v. Macy's, 193 F.3d 766, 773-75 (3d Cir.1999) (desp ite language reserving "sole discretion" to offeror, contract could have conveyed a definite promise). Considering the words of the contract, the alternative meaning suggested by counsel, and the objective evidence, Riseman offered a "reasonable alternative i n te rpretation" of the phrase. Bohler-Uddeho lm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 9 3-96, 100 (3d C ir.2001) (latent a mbigu ity requires "contractual hook"). For example, "being here at the time" could incorporate an implicit prom ise that Advanta would not prevent Riseman from "being here" in violation of federal law (ADEA). FN6. Advanta's memorandum of May 12, 1998 purported to reduce to writing an oral agreement reached two months earlier. If Advanta wanted to reserve the right not to pay the 1998 b onus through the simple expedient of terminating Riseman, it should have been more specific in the memorandum. Written contracts must be con strued against the drafter, especially where the drafter is a sophisticated com merc ial entity. See Pacitti, 193 F.3d at 775 n. 5 (citing Pennsylvania law).

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 17 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 6

Alternatively, the jury could determine that the condition was excused. For examp le, the jury c ould decide that Advanta fired Riseman in violation of the ADEA, thereby preventing him from "being here at the time." See Restatement (Second) of Contracts § 225, Cmt. b; Mc Dermo tt v. Party City Corp., 11 F.Supp.2d 612, 621 (E.D.Pa.1998) ("If a party acts to hinder the satisfaction of a condition, the condition is excused."); cf. Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 634 (3d Cir.1998) ("[W]hen one party to a contract unilatera lly prevents the performance of a condition upon which his own liability depends, the culpable party may no t then capitalize on that failure."); Anthuis v. Colt Indu s. Op erating Corp., 971 F.2d 999, 1008 n. 8 (3d Cir.1992) (quoting 5 W illiston on C ontracts § 677, at 224 (3d ed. 1961)) ("It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance ... of a condition upon which his own liability depends, he cannot take advantage of the failure."). Accordingly, judgment as a matter of law is not appro priate with respect to the 1 998 bonus.

important and p rofitable business unit at Advanta, representing 85% of the revenues, assets and profits of the entire corporation. (P-8; P-251; 11/20/00 at 87-88; 11/21/00 at 47-65). As the mortgage group assumed greater prominence within the company. Rise ma n's business and personal performance came under closer scrutiny from the Office of the Chair. (11/14/00 at 126, 145-47; 11/27/00 at 103; 11/29/00 at 129 ). The jury could conc lude that such enhanced expectations from Advanta Mortgage and Risem an, precipitated by the sale of Ad vanta's consumer credit card division, was a change of control "affecting" Riseman's group. (11/14/00 at 132; 11/17/00 at 120 , 138-66). FN7 Judgment as a matter of law will not be granted.

FN7. The fact that Advanta reserved "sole discretion" to determine whether the change of control affected Riseman's group is not dispositive. As with the 1998 bonus, the jury could have found that Advanta failed to exercise its discretio n in goo d faith. See, e.g., Germantown Mfg. Co. v. Rawlinson, 341 Pa.Super. 42, 60-61, 491 A.2d 138, 148 (1985). (4) Detrimental Reliance Finally, Advanta argues that a detrimental reliance claim should not have been submitted to the jury because Riseman did not refrain from seeking other emp loyment. This contention fails because there was evidence to support detrimental reliance o n other grounds. For instance, the jury could have found that Riseman worked ha rder, increased his flexibility and coo peration with management, or otherwise was induced into action or forbearance of a definite and substantial character in reliance on a bonus promise. See JMJ Enterprises, Inc. v. Via Veneto Italian Ice, Inc., 1998 WL 175888 *3 (E. D.P a.1998), aff'd, 178 F.3d 1279 (3d Cir.1999) (table); Robert Ma llery Lumber Corp. v. B & F Assocs., Inc., 294 Pa.Super. 503, 511-12, 440 A.2d 579, 582-83 (1982).FN8 Accordingly, judgment as a matter of law is inappropriate.

(3) Breach of Contract: 1997 Bonus Advanta contends that Riseman could not recover the 1997 bonus because Advanta Mortgage did not experience a "change of control," and the mere fact that Advanta awarded the bonus to emp loyees whose business units did not experience a change of control does not entitle Risem an to a bonus as well. Judgment as a matter of law is not warranted. The April 28, 1997 letter provided for a bonus of 200% of Riseman's salary if there were a "change of control affecting your group." (P-46). It is undisputed that the sale of Ad vanta's co nsumer credit card division to Fleet constituted a "change of control." In addition, there was amp le evidence for the jury to conclude that this change of control affected Riseman's group, Advanta Mortgage. *7 In 19 98, after Ad vanta so ld its consumer credit card division to Fleet, Adva nta Mortgage became the most

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 18 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 7

FN8. Advanta's fallback position that Riseman could not have "reasonably relied" on a discretionary promise also misses the mark. Riseman could have reasonably relied on Advanta's implicit p romise to exercise its discretion in good faith. Advanta has not d emo nstrated that the record is "critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 (3d Cir.1995); Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1348 (3d Cir.1991). Therefore, I will deny the renewed motion for judgment as a matter of law.

reconciling the jury's answers, the court is "co nstitutionally bound" to deny the motion. McAdam v. Dean Witter Reynolds, In c., 896 F.2d 750, 764-66 (3d Cir.1990) (emphasis in original). Because new trials "effect[ ] a denigration of the jury system" and "usurp[ ] the prime function of the jury as the trier of the fac ts," Lind v.. Schenley Indus., Inc ., 278 F.2d 79, 88-91 (3d Cir.1960) (en banc ), the constitutional guarantees of the Seventh Amendm ent have "particular force" when a losing p arty attack s the weight of the evidence. See Williamson, 926 F.2d at 1348. Advanta's motion for a new trial does no t satisfy these procedural and constitutional standards.

(1) Dam ages B. Advanta's Motion for New Trial Pursuant to Federal Rule of Civil Procedure 59, Advanta moves for a new trial on Riseman's claims of retaliation under the AD EA , breach of contract, detrimental reliance, and violation of the WP CL. Adva nta argues that the dam ages verdict is against the weight of the evidence, and thus a new trial on damages and liability is warranted. This motion will be denied. A motion for new trial based upon the weight of the evidence is entitled to great scrutiny because it invites the court to substitute its judgm ent for tha t of the jury. See Wilburn v. Maritrans Gp . Inc., 139 F.3d 350, 363-64 (3d Cir.1998); Delli Santi v. CNA Ins. Co., 88 F.3d 192, 201 (3d Cir.1996). Such a motion may be granted only if the court, in its discretion, finds that the jury's verdict represents a "miscarriage of justice," or cries out to be overturned because it "shocks the conscience." William son v. Consolidated Rail Corp ., 926 F.2d 1344, 1352-53 (3d Cir.1991); Fin eman v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir.1992). *8 A motio n for new trial is imbued with constitutional dimensions. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355 (1962) (Seventh Amendm ent requires jury to resolve disputed fact questions). If the verdict winner sets forth even a "minimally plausible" or "conceivable" way of First, Advanta attacks the jury's damage award as "impo ssible." A da mages verd ict will be affirmed if " `there is any view of the case which reconciles the [jury's] various answers." ' McAda m v. Dean Witter Reynolds, Inc., 896 F.2d 750, 763 (3d Cir.1990) (emp hasis in original) (quoting Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1159 (3d Cir.1989)). In reviewing the jury's verdict. I may not speculate as to what the jurors were "really" trying to do, or weigh the reasonableness of Riseman's view of the evidence against Advanta's view. See id. at 763-65. If Riseman's view is conceivable, the jury's verdict may not be disturbed.FN9

FN9. Cf. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962) ("Where there is a view of the case that makes the jury's answ ers to special interrogatories consistent, they must be resolved that way."); McAdam v. Dean Witter Reyn olds, Inc., 896 F.2d 750, 764 (3d Cir.1990) (court is "under a constitutional mandate to search for a view of the case that makes the jury's answers consistent"); Jones & Lau ghlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 293 (3d Cir.1980) ("[if] there is at least one way to explain the jury's answers to the interrogatories, [court is] bound

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 19 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 8

to affirm them"). The jury awarded $3 ,939 ,126 in total dama ges, including $1.377,125 in back pay and $2.562,001 under the W PCL. T he jury's award is consistent with the evidence and certainly does not "shock the conscience." First, the total award of $3,939 ,126 is reaso nably close to what the damages expert suggested was ap propriate under conservative assumptions. (12/1/00 at 89-95). Advanta p resented no contra ry dam ages expert. Second, the $1,377,125 "back pay" award could have been comp uted unde r several scenarios. One possible method, suggested by Risem an, is the difference between the salary and AM IP bonus amounts Riseman could have earned at Advanta between October 1998 and December 2 000 , and the amou nts he ac tually earned during this time. In 1998, Riseman received a 20% merit raise, from $32 5,00 0 to $38 5,00 0 in salary. (P-61G; 11/14 /00 at 14 0). Considerin g the trend in Rise ma n's salary since 1992, as well as the mortgage unit's pivotal status after 1998, the jury could have projected similar increases for 19 99 and 2000 . W ith such raises, Riseman could earn a 1999 AMIP bonus of $462,000, a 200 0 AM IP bo nus of $554,400, and $360,725 more in Adv anta base salary than he ac tually earned between October 1998 and December 2000. Alternatively, the jury could have awarded lower AM IP bonuses in 1999 and 20 00, and found a higher salary differential between October 1998 and December 2000. In either ca se, $1 ,377 ,125 in "back pay" is justifiable.FN10

double his "target" bonus. H owever, Advanta points to no evidence establishing a conclusive cap on Rise ma n's AM IP bonus for that year. Also, while insisting that the jury should receive instructions on the parameters of the 1997 and 1998 bonuses, Advanta did not seek an instruction regarding any damages ceiling on the AM IP bonus. In fact, on Decem ber 5, 2000, when the jury asked where it could find Riseman's 1998 A MIP bonus in the evidence, Advanta agreed there was no document defining Riseman's 1998 A MIP bo nus, and the jury was so instructed. (12/5/00 at 78-80). Thus, the jury conscientiously considered how much to award for Rise ma n's 1998 AMIP bonus, and reasonably could have believed there was no per se limit on the amo unt. FN12

FN11. Because the verdict is most reasonably read without any overlapping "back pay" or WPCL compone nts, an award of liquidated damages under ADEA and WPCL would not constitute "do uble re covery." FN12. Advanta did not even mention the AM IP bonus in its closing argument to the jury. (12/4/00 at 192-225). The jury could award a 19 98 A MIP bo nus of $1,512,001, based upon Riseman's role at Advanta M ortgage and the company's overall performance. There was extensive evidence of how Riseman perso nally saved, turned around, and built the mortgage unit. (P-51-54; P-116; 11/14/00 at 105-125; 11/17/00 at 64-65; 11/20/00 at 61-63; 11/21/00 at 47-65). T he jury learned that, under Risem an's leadership, Advanta Mo rtgage became the most impo rtant and profitable busine ss unit at Advanta. By 1998, Advanta M ortgage alone constituted 85% of the revenues, assets and profits of the entire Adv anta Corporation. (P-8; P-251; 11/20/00 at 87-88; 11/21/00 at 47-65). Based upon Advanta's financial performance in 1998, including the unde niable contrib ution o f Riseman and A dvanta Mo rtgage, the jury could have d ecide d that a $1.5 million bonus was appropriate. Under the circumstances of this case, the jury's bonus award certainly does not " s h o c k t h e c o n sc i e nc e . " S e e P a o l e ll a v. Bro wning-Ferris, Inc., 158 F.3d 183, 189, 194-95 (3d

FN10. This "back pay" hypothetical does not even include the 19 97 bonus, the 1998 bonus, or the 1998 AMIP bonus. For instance, a bonus may have been denied before Riseman engaged in protected activity or, perhaps, denied in bad faith but not in retaliation for an age-discrimina tion co mpla int. *9 Finally, the WP CL award of $2,562,001 could include $650,000 from the 1997 bonus, $400,000 from the 199 8 bonus, plus an unliquidated amount from the 1998 AM IP bo nus. FN11 Advanta's post-trial position is that Riseman's AMIP bonus for 1998 was capped at

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 20 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 9

Cir.1998) (upholding front pay award that was "more than 17 times" the amount defendant claimed was supported by the evidence).FN13

basis.

(2) Severance FN13. W ith respe ct to Advanta's key corp orate executives, the jury was told of numerous instances in which R ise ma n's colleagues received sizable bonuses. For example, in 199 8, executives D ennis Alter and W illiam Rosoff each received $5 million bonuse s, in addition to other bonuses plus base compensation. (11/17/00 at 141-42; 12/1/00 at 61-65; P-281 at 8-9). Apart from other compensation, Elizabeth Mai received a $1.5 million bonus. (11/17/00 at 139; 11/28/00 at 9; 11/29/00 at 226-27). The law does not command mathematical precision in ascertaining damages from the evid ence. See Scully v. U.S. Wats, Inc., 238 F.3d 497, 515 (3d Cir.2001). W hen a jury restores a victim to the economic position he would otherwise have occupied, any impre cision in damages must be borne by the wro ngdo er. See Goss v. Exxon Office Systems Co., 747 F.2d 885, 889 (3d Cir.1984) ("The risk of lack of certainty with respe ct to projections of lost income must be borne by the wrongdoer, not the victim."); Young v. Lukens Steel Co., 881 F.Sup p. 96 2, 976 (E.D.Pa.1994) (" `any amb iguity in what the claimant would have received but for the [retaliation] should be resolved against the [retaliating] employer" ') (citations omitted). Mo reover, "it is well accepted that a court will not inquire into the calculation methods employed by the jury during its deliberations." Chuy v. P hilad elphia Eagles Football Club, 595 F.2d 1265, 1279 n. 19 (3d Cir.1979) (en banc ). Instead, a court "must assume" that the jury acted rationally, " `followed the court's instructions and arrived at a verdict based on those instructions." ' Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 102, 105 (3d Cir.1993) (citations omitted). *10 Because the verdict does not represent an "impossible" application of the evidence to the instructions, a new trial will not be granted on this Adva nta also seeks a new trial because it believes that the jury may have awarded severance damages. This speculation d oes not warrant a ne w trial. At summary judgment, the Court reserved the issue of severance dam ages fo r an ERISA be nch trial, b ut did not state that severance was irrelevant to ADEA liability. Risem an sub sequently introduced evidence of dispa rate severance pay as part of his ADEA case, without asking fo r severance in his damage calculations or closing argument. (12/4/00 at 191-92). Thus, the jury charge referred to severance as part of Riseman's liability claims, b ut not as an element of da mages. (12/5/00 at 9-11, 54 -60). For apparent strategic reasons, Advanta even declined the Court's invitation to instruct the jury not to award severance. (12/5/00 at 13-14). Accordingly, Adv anta may not seek a new trial o n this ground. Advanta also argues that none of its former employees who received severance were "similarly situated" to Riseman. At trial, Riseman presented evidence that an executive discharged for theft, dishonesty and breach of trust (after on ly five months of work) had received substantial severance pay, whereas Riseman (who had been with Advanta for over five years) received no severance pay. (11/17/00 at 169-177). Whether such former Advanta employees were "similarly situated" to Riseman was a jury question. T he ad mission of this evide nce d oes not compe l a new trial.

(3) ADE A "Back Pay" Advanta next contends that the 1997 bo nus and 1998 bonus canno t be included in "back pay." I need not address this argument because the jury did not necessarily include either bonus in its "back pay" award. See, e.g., Part II(B)(1), supra.

(4) ADE A "Front Pay"

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 21 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 10

Advanta moves for a new trial with regard to ADEA "front pay," claiming: (1) Riseman waived his right to seek front pay through a comment at the pre-trial conference, (2) front pay is an equitable remedy that cannot be awarded by a jury, and (3) Riseman was not eligible for front pay because he had reestablished himself in the workforce. These arguments do not entitle Ad vanta to a new trial. FN14

54 F.3d at 1103; Maxfield, 766 F.2d at 796. It was abundantly eviden t during this litigation (and in repe ated se ttlement attemp ts) that there was irreparable animosity between the parties. Mo reover, Adv anta argued at trial that there would likely not be a position for R iseman because Advanta was contem plating the sale of its mortgage comp any. Rein statement was not feasible in this case, and no party has ever argued otherwise. (ii) Awarded by the Jury *11 Advanta goes on to assert that front pay is an equitable remedy which canno t be awarded by the jury. This argument is foreclosed by controlling T hird C ircuit precedent. It is for the court to decide w hether reinstatem ent is feasible and, if not, whether front pay should be awarded in lieu of reinstatem ent. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir.1995); Blum v. Witco Chemical C orp., 829 F.2d 367, 374 (3d Cir.1987). However, once the court decides that reinstatement is not feasible, the amount of damages to be awarded as front pay becomes a jury question. See Blum. 829 F.2d at 374 n. 4; Maxfield, 766 F.2d at 796.

FN14. Because there is a possibility that the jury awarded "front pay," I will address Adva nta's arguments. (i) Waiver First, Adv anta contends that Riseman waived his right to seek front pay when one of his attorneys stated at the final pretrial conference that Riseman was not seeking reinstatement. In Wehr v. B urrough s Corp., 619 F.2d 276, 283-84 & n. 18 (3d Cir.1980), the plaintiff waived front pay where his attorney specifically disclaimed reinstatement in a letter to the court. FN15 Ho wever, in M axfield v. Sinc lair Int'l, 766 F.2d 788, 795-97 (3d Cir.1985), the Third Circuit distinguished Weh r, holding that the issue of front pay was preserved when plaintiff requested future damages in his complaint. Understandab ly, in this case. Riseman requested front pay rather th an rein statem ent. FN16 Absent an unequivocal disclaimer such as the letter sent to the court in Weh r, Riseman did no t waive his right to seek front pay.

(iii) Eligibility for Front Pay Finally, Advanta claim s that Riseman was no t eligible for front pay as a matter of law. A monetary sub stitute for the equitable remedy of reinstatement, front pay is designed to restore the victim of an employer's unlawful conduct to the position he would have otherwise occupied. See Pollard v. E.I. du P ont de N emo urs & Co., 121 S.Ct. 1946, 1950 (2001); Maxfield, 766 F.2d at 795-96. Advanta argues that Riseman was not eligible for this "make-whole" remedy because he reestablished his rightful place in the workforce. See Goss v. Exxon Office System s Co., 747 F.2d 885, 889-90 (3d Cir.1984) (in business sales context where plaintiff reestab lished herself, district court did not abuse discretion in limiting front pay award to four months). But whether Risem an had reestab lished his

FN15. In Weh r, the Third Circuit did no t hold that it would have been error for the district court to consider front pay, but o nly that the district court did not abuse its discretion in finding waiver. See id. at 284 n. 19. FN16. Reinstatement may no t be feasible if there is "continuing hostility" and "animo sity" between the parties or, alternatively, no position is availab le at the time of jud gment. See Pollard v. E.I. du P ont de N emo urs & Co., 121 S.Ct. 1946, 1948 (2001); Starc eski,

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:04-cv-01394-GMS

Document 245

Filed 06/07/2006

Page 22 of 29

Not Reported in F.Supp.2d No t Rep orted in F.Supp.2 d, 20 01 W L 11 751 26 (E.D .Pa.) (Cite as: Not Reported in F.Supp.2d)

Page 11

rightful place in the workforce (and, if so, when) was a jury question. To the extent that the jury awarded front pay, it resolved this issue against Advanta. Advanta also challenges Riseman's request that he be awarded front pay to age 70 or 75. See Anastasio v. Schering Corp., 838 F.2d 701, 709-10 (3d Cir.1988) (where jury findings were consistent with decision that plaintiff would have retired before age 70, A DE A did not "guarantee ... an annuity to age 70"). Given that Riseman was 64 years of age at the time of trial, a front pay award up to age 70 or 75 would not be inappropriate as a ma tter of law. See Feldman v. Philadelphia Ho using Auth., 43 F.3d 823, 832-33, 841 (3d Cir.1995) (uph olding 38 year-old's front pay award to retireme nt age o f 65); Blum, 829 F.2d at 375-76 (failure to award front pay to 63 year-old until normal retirement age could constitute abuse of discretion).FN17

on breach of contract is that the jury charge did not enum erate the specific cond itions ap plicab le to each of the contra cts. W here an objection to a jury charge has been preserved, the court must ask whether the charge, " `taken as a who le, properly apprises the jury of the issues and the applicab le law." ' Watson v. Southeastern Pen nsylvania Tran sp. Auth., 207 F.3d 207, 212 (3d Cir.2000), cert. denied, 121 S.Ct. 1086 (2001); Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir.1998); Limbach Co. v. Sheet Metal Work ers Int'l Ass'n, AFL-CIO, 949 F.2d 1241, 1259 n. 15 (3d Cir.1991) (en banc ). The Court's charge met that standard. The jury instructions a voide d r e c iting either parties' characterizations of the facts, but informed the jury of the issues and applicable law. Advanta had every opp ortunity to explain the contractual conditions, as it viewed them, to the jury. A new trial on breach of contract is not required.

FN17. Whether or not Riseman testified about a specific intention to retire on a particular date, there was sufficient evidence for the jury to calculate a reasonable front pay aw ard. See Gorniak v. Nationa l R.R . Passeng er Co rp., 889 F.2d 481, 486-87 (3d Cir.1989). For these reasons, the submission of Risem an's front pay claim to the jury do es not merit a new trial.

(6) WPCL W ith respect to the WPCL, Advanta moves for a new trial on three grounds: (1 ) Rise ma n's bonuses were not "earned" within the meaning of the WP CL, (2) the jury was not given a specific instruction on the definition of "good faith," and (3) the jury was not instructed that Riseman had the burden to prove lack of good faith by "clear and convincing" evidence. No ne of these assertions compe l a new trial.

(5) Breach of Contract Advanta seeks a new trial on Riseman's breach of contract claims for substantially the reasons argued in its motion for judgment as a matter of law. To the extent Advanta relies upon its discretion to deny the 1997 and 19 98 bonuses, the retention of discretion did not give Adv anta license to act in bad faith. In view of the substantial evidence that Advanta had been satisfied with Riseman's performance from 1992 to 199 7, the jury could have concluded that Advanta's purported dissatisfaction with Riseman in 1998 was not genuine. There was also sufficient evidence for the jury to decide that all contractual conditions were satisfied or excused. *12 Advanta's only other basis for seeking a new trial

(i) Riseman's Bonuses Were "Earned" Advanta argues that Riseman's 1998 bonus and 1998 AM IP bonus were not "earned" within the meaning of the WP CL. Under the WPCL, "[w]henever an employer separates an employe from the payroll, or whenever an emp loye quits or resigns his emp loyment, the wages or compensation earned shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable." 43 P.S. § 260.5(a). The W PCL doe s not create a substantive right to compe nsation, but rather a statutory remedy for an employer's breach of

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

Case 1:0