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May 31, 1996


The opinion of the court was delivered by: FRIEDMAN

 After the termination of 18 years of employment with the National Academy of Sciences, Tran Anh Phuong brought an administrative charge of employment discrimination on the basis of race and national origin against her former employer. She later amended her complaint to add a claim of age discrimination. Ms. Phuong exhausted her administrative remedies and filed this civil action. After a six-day trial before a jury on Ms. Phuong's age claim and before the Court on Ms. Phuong's race and national origin claims, the jury returned a verdict for Ms. Phuong and found that she is entitled to damages as a result of defendant's willful discrimination against her on the basis of her age. *fn1"

 Defendant moves for judgment as a matter of law or, in the alternative, for a new trial on the grounds that no reasonable juror could have concluded that plaintiff was discriminated against because of her age. See Rule 50(b) and Rule 59, Fed. R. Civ. P. "An entry of judgment as a matter of law is warranted only if 'the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men [and women] could not disagree on the verdict.'" Hayman v. National Academy of Sciences, 306 U.S. App. D.C. 227, 23 F.3d 535, 537 (D.C. Cir. 1994) (quoting Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1227 (D.C. Cir. 1984)). "In making that determination, a court may not assess the credibility of witnesses or weigh the evidence." Id. (citing Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342 (D.C. Cir.), cert. denied, 464 U.S. 994, 78 L. Ed. 2d 683, 104 S. Ct. 488 (1983)). A new trial may be granted "for any of the reasons for which new trials have heretofore been granted . . . ." Rule 59(a), Fed. R. Civ. P. In this case, defendant seeks a new trial because, it argues, the jury was swayed by sympathy and passion because Ms. Phuong is currently disabled and appeared before the jury in a wheelchair.


 A. Evidence of Age Discrimination

 This case was tried over six days; both plaintiff and defendant presented witnesses and documentary evidence to the jury. All the major players in the drama testified and were cross-examined. Because plaintiff's claim was fully tried on the merits, on this motion the Court is faced with the "'ultimate question of discrimination vel non' -- 'whether the defendant intentionally discriminated against the plaintiff' on the basis of age.'" Hayman v. National Academy of Sciences, 23 F.3d at 537 (quoting United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983)). Whether plaintiff has made out a prima facie case "is no longer relevant." Id.2

 To prevail under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., plaintiff must establish by a preponderance of the evidence that age was a determining or motivating factor in an adverse employment action taken by her employer. Hazen Paper Company v. Biggins, 507 U.S. 604, 610, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993); Hayman v. National Academy of Sciences, 23 F.3d at 538 (citing, inter alia, Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 706 (D.C. Cir. 1984), cert. denied, 474 U.S. 817, 88 L. Ed. 2d 51, 106 S. Ct. 62 (1985)). Plaintiff was a member of the class protected by the ADEA; she was 57 years old at the time her employer removed her from her grade 10 Executive Assistant position at the Commission on Engineering and Technical Systems ("CETS") at the National Academy of Sciences ("NAS"). Ms. Phuong had held that position for many years under three different directors and had received outstanding performance evaluations and commendations over the years. NAS filled the position previously held by Ms. Phuong with a person who was only 42 years old. *fn3"

 NAS claimed that it determined to remove plaintiff from her position because her performance failed to meet NAS's legitimate expectations. Her immediate supervisor, Archie Wood, testified that Ms. Phuong was unable to perform certain computer tasks that he expected her to complete and that he was dissatisfied with her writing. Marlene Beaudin also testified that Ms. Phuong was unable to complete computer tasks and that she was responsible for the loss and mis-processing of certain documents. Defendant contends that it made every effort to find an alternative position for Ms. Phuong, but that she ultimately decided to resign because of a work-related back injury.

 Ms. Phuong testified that NAS determined to remove her from her job because of her age and that she was forced to resign. Plaintiff offered evidence that Mr. Wood and Ms. Beaudin never documented any shortcomings in her performance and, although they did not communicate their dissatisfaction with her performance until several months after they first began discussing replacing her, they did discuss between themselves the fact that Ms. Phuong was approaching retirement age.

 By March 15, 199, Ms. Beaudin was working on a document redefining plaintiff's job description. Pl.'s Ex. 3; Wood Testimony. By early April 1991, unbeknownst to Ms. Phuong, Ms. Beaudin had prepared a draft of a negative performance review concerning Ms. Phuong. Pl.'s Ex. 5; Starliper Testimony. On April 9, 1991, Ms. Phuong received a memorandum from Mr. Wood informing her that he was delaying her annual performance review for three months in order to permit her to adjust to new duties and responsibilities. Wood Testimony; Phuong Testimony; Pl.'s Ex. 6. There was no reference to deficient performance in the memorandum and there was no follow-up conversation between Mr. Wood and Ms. Phuong concerning the contents of the memorandum. Phuong Testimony; Wood Testimony. On April 30, 1991, Ms. Phuong gave a memorandum to Mr. Wood in which she listed questions about her new responsibilities. Pl.'s Ex. 8; Phuong Testimony. Mr. Wood told Ms. Phuong that he would discuss her memorandum with Ms. Beaudin and get back to her about her questions. At no time did Mr. Wood or Ms. Beaudin respond to Ms. Phuong's April 30, 1991 memorandum. Phuong Testimony; Wood Testimony. Charles Starliper, defendant's Director of Personnel, testified that the absence of written documentation concerning plaintiff's shortcomings was "an anomaly" at the NAS. Starliper Testimony.

 At some point that spring, during a discussion concerning how to remove Ms. Phuong from her Executive Assistant position, Mr. Wood, Ms. Beaudin and Ms. Mary Frances Lee discussed the fact that plaintiff would be eligible to retire in a couple of years. Deposition of Archie Wood at 49-51; Wood Testimony. On July 22, 1991, Mr. Wood sent an e-mail to Mr. Starliper in which he referred to the fact that Ms. Phuong would be eligible to retire in two years and "reap[] the benefits for which she has worked for most of 20 years." Pl.'s Ex. 11. He queried whether "there are places in the institution where she could make a contribution for a couple of years, yet be out of the 'critical path' of one [of] the biggest [National Research Council] units." Id.4 Mr. Starliper responded by cautioning that "there can be no agreement that she might be placed in a unit for two years and then retire; the date of her retirement can only be her decision." Id.

 Plaintiff also presented evidence that her duties were dramatically altered in the spring of 1991, that she was assigned computer tasks that had previously been performed by Teree Dittmar, the younger woman who eventually replaced her, and that she had neither the software nor adequate training to complete those tasks. Phuong Testimony.

 These facts could lead a reasonable trier of fact to conclude that Mr. Wood and Ms. Beaudin believed that Ms. Phuong's productivity and competence were affected by her age and that they did not give her a genuine opportunity to prove them wrong; it could also lead a reasonable trier of fact to conclude that Ms. Phuong's age itself was a motivating factor in their decision to alter her responsibilities.

 On or about August 16, 1991, Mr. Starliper offered plaintiff the option of accepting a demotion to grade 7 or accepting a demotion combined with working at the lower grade job half-time. This was the first time Ms. Phuong was informed that she would be removed from her job because of shortcomings in her performance. Phuong Testimony; Starliper Testimony; Wood Testimony. Plaintiff was absent from work for a period in August and September 1991 due to a back injury. By the time she returned to the office on September 9, 1991, her position, which had been a grade 10 position, was being advertised as vacant at a grade 9 ...

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