plaintiff. Ms. Dittmar's performance subsequently was documented by Mr. Wood and Ms. Beaudin as deficient and Ms. Dittmar was given a year to improve her performance and attendance. Pl.'s Exs. 29, 32, 33. Eventually, Ms. Dittmar's absenteeism caused her to be moved to a different job at her then current grade, but at only 80% time. Pl.'s Ex. 33.
While the proof of age discrimination is not overwhelming, a reasonable juror could infer from this evidence that Mr. Wood and Ms. Beaudin determined to remove plaintiff from her position as Executive Assistant in the Commission on Engineering and Technical Systems at NAS, that her age was a determining factor in their decision, that plaintiff was not given a realistic opportunity to meet their expectations and that plaintiff was forced to resign. Mr. Wood and Ms. Beaudin's failure to document Ms. Phuong's alleged performance deficiencies, and their offer of a demotion, at full or half-time, contrasts dramatically with the procedure they followed with Ms. Dittmar, the younger employee who replaced Ms. Phuong. In addition, Mr. Wood's determination to lower the grade of the Executive Assistant job from a grade 10 position to a grade 9 position also could lead to the inference that Mr. Wood wished to replace plaintiff with a younger employee. Moreover, Mr. Wood conceded that he was aware of and had discussed the fact that Ms. Phuong would be eligible for retirement within a couple of years both with others on his staff and with the Personnel Director.
The ADEA provides for legal and equitable relief including reinstatement, promotion, and unpaid wages. It further provides that in addition to this legal and equitable relief, liquidated damages "in an amount equal to the wages lost," 29 U.S.C. § 216(b), "shall be payable . . . in cases of willful violations . . . ." 29 U.S.C. § 626(b). In this case, the jury found by a preponderance of the evidence that plaintiff's age was a motivating reason for defendant's decision to remove her from her position and that she was entitled on this basis to back pay and benefits in the amount of $ 42,000.00. The jury also found by a preponderance of the evidence that defendant's decision to remove plaintiff from her position was willful. See Special Verdict Form. Defendant argues that, even if a jury could find that age was a motivating factor in the decision to remove Ms. Phuong from her job, no reasonable juror could have found that defendant willfully violated the ADEA.
An employer's violation is found to be willful if "'the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.'" Hazen Paper Co. v. Biggins, 507 U.S. at 614 (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985)). "Once a 'willful' violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision." Id. at 617. The two-tiered liability scheme for willful and non-willful violations "is designed to shield the employer who violates the Act without knowing it." Shager v. Upjohn Co., 913 F.2d 398, 406 (7th Cir. 1990) (citations omitted). Thus, an employment decision motivated by age is not willful if the employer incorrectly, but in good faith and nonrecklessly, believed that the statute permitted the age-based decision. Hazen Paper Co. v. Biggins, 507 U.S. at 616. In a disparate treatment case such as this one, where the employer refuses to acknowledge its reliance on age, a reasonable juror certainly could reach the conclusion that the employer's violation was willful. See id. at 617. The jury having found willfulness, the Court will vacate the original judgment in the amount of $ 42,000.00 and enters an amended judgment in the amount of $ 84,000.00.
C. Jury Sympathy
Defendant asks the Court to grant its motion for a new trial because it contends that the jury's short period of deliberations demonstrates that the jury did not consider the evidence and apply the law, but rather was motivated by sympathy for the wheelchair-bound plaintiff. See Webb v. Hyman, 861 F. Supp. 1094, 1109 (D.D.C. 1994). "In deciding whether to grant a new trial, the court should be mindful of the jury's special function in our legal system and hesitate to disturb its finding." Lewis v. Elliott, 628 F. Supp. 512, 516 (D.D.C. 1986) (citation omitted); see Webb v. Hyman, 861 F. Supp. at 1109 ("Courts should not grant new trials without a solid basis for doing so."). As discussed above, there is sufficient evidence from which a reasonable juror could find by a preponderance of the evidence that plaintiff was discriminated against because of her age.
Although Ms. Phuong is confined to a wheelchair, the Court concludes that sufficient measures were taken to minimize the impact on the jury of Ms. Phuong's disability. During voir dire the potential jurors were queried about whether they would be affected by their observation of Ms. Phuong's disability. The jurors were given a cautionary instruction at the beginning of the trial directing them not to draw inferences from Ms. Phuong's physical condition because it was not an issue at trial and because there was no allegation that it was related to events at the NAS. Moreover, with one exception, the Court attempted to minimize the impact of plaintiff's condition by ensuring that Ms. Phuong was seated at counsel table or in the witness box before the jury entered the Courtroom. The Court sees no reason to grant a new trial on this basis.
D. Mitigation of Damages/Unemployment Benefits
Finally, defendant insists that plaintiff's damage award should be reduced because she received unemployment insurance benefits and because she either did not exercise reasonable diligence in her job search or she rejected the offers of employment made to her by the NAS. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982). Defendant carries the burden of establishing that suitable positions existed for plaintiff and that she failed to use reasonable diligence in seeking them out. EEOC v. District of Columbia Dep't of Human Services, 729 F. Supp. 907, 916 (D.D.C. 1990). In this case, the only alternative employment for Ms. Phuong about which there was any testimony was a grade 7 position, at either full or half-time, that was offered to her when she was being removed from her grade 10 Executive Assistant position.
As described by Ms. Beaudin and Mr. Wood, the grade 7 position was not substantially equivalent in pay, responsibility or hours to Ms. Phuong's grade 10 position. See Hartman v. Wick, 678 F. Supp. 312, 337-38 (D.D.C. 1988). Moreover, the fact that Ms. Phuong's Executive Assistant position and the grade 7 position that she had been offered were both posted as vacant before Ms. Phuong informed defendant of her decision concerning whether to accept the demotion to the grade 7 position suggests that Ms. Phuong had reason to believe that the job offer was not genuine.
As to unemployment insurance, defendant relies upon Bishop v. Jelleff Associates, 398 F. Supp. 579 (D.D.C. 1974) and Marshall v. Communications Workers of America, 26 Fair Empl. Prac. Cas. (BNA) 1017 (D.D.C. 1979). In Bishop, the court stated, without discussion, that damage awards are reduced by the amount of unemployment insurance benefits. While the magistrate judge in Marshall discussed the issue in greater detail, the Court finds more persuasive the reasoning of a recent opinion by Judge Lamberth in which he determined that benefits from a collateral source such as unemployment insurance should not lessen recoverable damages. Neal v. Director, District of Columbia Dep't of Corrections, 1995 U.S. Dist. LEXIS 11515, 1995 WL 517249, *5 (D.D.C. Aug. 9, 1995). Judge Lamberth reasoned that
unemployment benefits do not represent multiple recovery for injuries inflicted upon the plaintiffs by [defendant]. Instead, these benefits are remuneration under a separate contract with the government, financed by payroll taxes and payable whether or not an employer is culpable of sexual harassment or any other tort. Plaintiffs are separately entitled to back pay and to unemployment benefits. The former is compensation for the wrong they have suffered. The latter is an obligation incurred by the government under a distinct and unrelated statutory regimen.
Id. at *7 The Court concludes that unemployment insurance benefits should not be subtracted from plaintiff's award.
For the foregoing reasons, it is hereby
ORDERED that defendant's motion under Rule 50(b), Fed. R. Civ. P., for judgment as a matter of law is DENIED. The jury's verdict is permitted to stand. An amended judgment consistent with this Opinion is issued this same day; and it is
FURTHER ORDERED that defendant's alternative motion under Rule 59, Fed. R. Civ. P., for a new trial is DENIED.
PAUL L. FRIEDMAN
United States District Judge