ORDER ON POST-TRIAL MOTIONS
Durwood L. Currier sued his former employer, United TechnologiesCorporation (OUTCO, for age discrimination in violation of the AgeDiscrimination in Employment Act (OADEAO and the Maine Human Rights Act(OMHRAO. Specifically, Currier claimed that, in connection with areduction in force at Pratt and Whitney's North Berwick facility, thecompany terminated him because of his age. On January 15, 2004, a juryawarded Currier $101,580 in back pay and $275,000 for nonecomonic losses.On January 22, 2004, judgment entered against UTC in the amount of $101,580 back pay with respect to Count I (ADEA) and $275,000 noneconomicdamages with respect to Count II (MHRA). UTC now has moved for judgmentas a matter of law and for a new trial or, alternatively, remittitur.Although this has always been a close case, I conclude that there wassufficient evidence for the jury to find that Currier was terminatedbecause of his age and to award the damages that it did. UTC's Motions for Judgment as aMatter of Law and for New Trial or Remittur are DENIED.
Currier has filed a Motion to Amend or Correct the Judgment to add theback pay award to Count II (the state law claim) and to add an award offront pay and prejudgment interest to both counts. UTC does not object tothe addition of back pay to his Count II award. As for prejudgmentinterest, I find that Currier waived such a claim under Count I, but isentitled to prejudgment interest under Count II. I decline to award frontpay on either count. Accordingly, Currier's Motion to Amend or Correctthe Judgment is DENIED IN PART and GRANTED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
In entertaining UTC's Motion for Judgment as a Matter of Law, I mustlook at all of the evidence in the record and draw all reasonableinferences in favor of Currier. Reeves v. Sanderson Plumbing, 530 U.S. 133,150 (2000). The jury could have found the following facts from theevidence presented at trial.
Pratt & Whitney is a division of UTC. Currier began working atPratt & Whitney's plant at North Berwick in 1979. Over the years,he was promoted to increasing levels of responsibility. He was a seniorindustrial engineer, then a manager of productivity programs, then abusiness unit manager with supervisory authority over approximately 200employees. UTC rewarded Currier with merit pay increases, promotions, andpositive performance evaluations. In April of 1996, UTC asked Currier toreplace another business unit manager who was struggling to meet company goals and financial targets. Currier improvedthat unit's performance and, in March of 1998, UTC recognized Currier'sachievements in the unit by sending him on a trip to Japan. While Currierwas in Japan, Thomas Mayes, twenty years younger than Currier, became theNorth Berwick plant's new operations manager and supervisor of Currierand six other business unit managers.
In 1998, a major Pratt & Whitney goal was to reduce lead time, theamount of time it takes to make a particular part. Currier implemented alead time reduction strategy that year, which effectively reduced leadtime. One side effect of the lead time reduction strategy was that costper standard hour in Currier's unit increased. Although Currier's unitwas able to produce parts more quickly, the delivery dates remained thesame. As a result, Currier's employees had nothing to do during the timebetween completing one order and time scheduled to start the nextorder.1 Currier's unit still bore the payroll expense of theseunproductive employees, however. Although Currier sent idle employees tohelp in other units, his unit continued to bear the employees Claborcost.
Mayes evaluated each business unit manager's performance in 1998. Theperformance evaluations consisted of scores in various categories,ranging from 1 to 5, with 5 being the best. The jury could have found that Mayes wasunfairly inconsistent in scoring the business unit managers on their 1998performance evaluations. As a result of the increased costs in Currier'sunit, Mayes gave Currier a score of "2" the cost category on his 1998performance evaluation. A "2" meant "eteriorating." Mayes made upwardadjustments to several other younger unit managers' cost category ratingsto account for circumstances beyond their control, but he did not adjustCurrier's cost rating to account for the lead time reduction strategy orthe loaned labor. According to Mayes, a business unit manager's score inthe area of "quality" was determined by the number of defects per millionand the number of "escapes" (defective parts that left the facility). In1998, Currier decreased defects per million by approximately 68% from theprior year and he had four escapes. Mayes gave Currier a "3" in thequality category. A "3" meant that the employee was "progressing." ButMayes also gave "3"s to two other, younger, business unit managers. Oneof those managers experienced a 73% increase in defects per million andhad 2 escapes. The other experienced a 68% increase in defects permillion and had 7 escapes.
In 1999, Mayes moved Currier from his position as a business unitmanager into a new position, manager of new business development. Mayestestified that he moved Currier, in part, because of the increased costsin Currier's business unit and because Mayes was told that Currier washaving personnel problems in his unit. In this new position, Currier wasresponsible for bringing new business into the company. Currier had no measurable goals in this position;he was never given a written performance evaluation; and Mayes denied hisrequest for any supervisory authority. Although Currier was unsuccessfulat bringing new business into the company, he was given a merit payincrease in December of 1999.
In the beginning of 2000, it became apparent that business volume wasdown and that Pratt & Whitney might have to reduce its workforce.Currier did not believe that he was well suited for business development.He knew that two other business unit manager positions were about to openup and he told Mayes that he was interested in those positions. Mayes,however, filled the open business unit manager positions with two otheremployees, fifteen and twenty years younger than Currier. One of thoseemployees had no experience as a business unit manager.
In February 2000, UTC promoted Mayes from operations manager to plantmanager. As plant manager, Mayes was in charge of the entire Pratt &Whitney facility in North Berwick, with the exception of one smalldepartment. In late April or early May of 2000, UTC informed Mayes thatthere was to be a reduction in force. UTC did not identify whichpositions were to be eliminated, but told Mayes that the North Berwickfacility work force needed to be reduced by a certain percentage. Mayesdiscussed which jobs should be eliminated with Steve Pickett, operationsmanager, and Thomas Murphy, head of Human Resources. Together, Mayes, Pickett and Murphy identified job titles that would beaffected by the reduction in force. Currier's position, manager of newbusiness development, was among those eliminated. Currier, however, wasnot automatically terminated as a result. Instead, because Currier hadbeen a business unit manager in the past, Mayes comparatively assessedCurrier against the six other business unit managers. The assessmentform, the Matrix, consisted of five considerations: "achieves results,""criticality of skills," "qalifications," "business orientation," and"interpersonal skills." The guidelines accompanying the Matrix stressedthat employees should be evaluated based on "prospective considerations."
In rating Currier, Mayes did not ask for help from Currier's pastsupervisors and did not look at past performance evaluations oreducational or training records. Mayes relied only upon his ownexperiences with and observations of the business unit managers over thetwo years leading up to the reduction in force. Mayes did not create adocument explaining his reasons for assigning ratings in certaincategories as part of the process. He simply circled a number from one toten next to each of the five Matrix categories. Mayes rated Currier lastamong the business unit managers; he gave Currier an overall score of 13out of a possible 35 points. Mayes gave the other business unitmanagers, all of whom are younger than Currier, scores of 31, 28, 27,27, 25, and 17. Mayes selected Currier to be terminated. Currier was 61years old. Dr. Sat Gupta, a statistician, testified that the reduction in force at the NorthBerwick facility disproportionately affected older employees.
About three or four weeks before he terminated Currier, Mayes calledCurrier into his office and asked him if he would be interested in aposition in China. The position that Mayes offered Currier was eitherplant manager or operations manager. Currier declined the position. WhenMayes told Currier that he was terminated, he again offered him the Chinaposition. Currier again refused.
Currier sued UTC for violating both the ADEA and the MHRA. Byagreement, the jury received a single instruction on liability thatcovered both the federal claim (Count I) and the state law claim (CountII). The jury found that UTC discriminated against Currier on the basisof his age and that UTC's violation was not "willful. UTC moved forjudgment as a matter of law at the close of both Currier's case and theentire case.
II. ANALYSIS
A. UTC's RENEWED MOTION FOR JUDGMENT AS A MATTER OP LAW
In order to prove age discrimination, the plaintiff must firstestablish a prima facie case. "In a reduction of force case, a plaintiffmust demonstrate: (1) he was at least forty years of age; (2) he met theemployer's legitimate job performance expectations; (3) he experiencedadverse employment action; and (4) his employer did not treat ageneutrally or younger persons were retained in the same position." Brennan v. GTE Govt. Sys. Corp., 150 F.3d 21, 26 (1stCir. 1998). Once the plaintiff establishes the prima facie case, arebuttable presumption of age discrimination arises and the burden shiftsto the employer ¶ articulate a legitimate, nondiscriminatory reason forthe decision. Old. If the employer meets this burden, the presumption ofdiscrimination disappears and the burden returns to the plaintiff toprove that the employer's reason was a pretext for age discrimination.Id.
(1) Currier's prima. facie case
UTC argues that Currier failed to establish the second and fourthprongs of the prima facie case. Specifically, UTC argues that Currier didnot meet its legitimate job performance expectations in the position ofmanager of new business development and that it did not replace him witha younger employee. Def.'s Mot. for Judgment as a Matter of Law ("Def.'sMot. for JML") at 6-9. There was evidence, however, that Currier'sperformance in the position of manager of new business development wasadequate. For one, there was no suggestion in the record that UTC wouldhave terminated Currier had there not been a reduction in force. Inaddition, Currier received a merit pay increase in December of 1999,after having been in the position for months. It is true that UTCeliminated the position of manager of new business development. However,UTC's decision to eliminate the manager of new business developmentposition is not the adverse employment action underlying Currier's agediscrimination claim. Currier does not allege that UTC discriminated against him by eliminatingthe new business development position. Rather, he alleges that UTCdiscriminated against him when it chose to assess him against the otherbusiness unit managers and then ranked him lowest.2 With regard tothe position of business unit manager, Currier had several positiveperformance evaluations and a glowing recommendation from a priorsupervisor. Currier also demonstrated that he was the oldest personconsidered; he was selected for termination; and each of the businessunit managers retained was younger. Moreover, Currier's expert testifiedthat, overall, the reduction in force disproportionately affected olderemployees.3 The initial burden to establish a prima facie case is"not onerous". Brennan, 150 F.3d at 26. Currier met his burden.
(2) Pretext
According to UTC, Mayes assessed Currier against the other six businessunit managers using an age neutral form, the "Matrix," and chose Currierto be terminated because he ranked the lowest. UTC argues that Currierfailed to offer sufficient evidence to prove that this legitimate,nondiscriminatory explanation was really a pretext for agediscrimination. UTC's arguments are premised largely on the assumption that the jury believed its version of the facts. Thejury, however, was entitled to reject Mayes' explanation for why he choseCurrier to be terminated. Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133, 150 (2000) (A reviewing court must disregard all evidencefavorable to the moving party that the jury is not required tobelieve."). Although the Matrix form itself was facially age neutral, thejury could have concluded that Mayes ranked Currier lowest for a reasonother than that he was the least competent business unit manager.
In the years before Mayes arrived at the North Berwick facility,Currier's career was on an upward trajectory; he received promotions, payincreases, and positive performance evaluations and recommendations. Justone month before Mayes arrived at the North Berwick facility, the companysent Currier on a trip to Japan to tour the Japanese facilities as areward for his excellent performance. Once Mayes arrived, however, thingschanged dramatically for Currier. Mayes gave Currier an unfavorableperformance evaluation and, the jury could have concluded, favored other,younger, employees by giving them adjustments on their evaluations andassigning them more generous scores in the "quality" category. Mayes thenmoved Currier from the position of business unit manager, where Curriersupervised 200 employees, to manager of new business development, a newlycreated position without supervisory authority and for which Currier was not well suited. The jury could also have concludedthat Mayes knew that a reduction in force was on the horizon when hefilled two business unit manager positions that Currier sought withother, younger and less experienced, employees. Although Mayes testifiedthat he did not consider Currier for those positions because Currier'sunit did not meet its cost target and because he believed that Currierhad a labor relations problem, the jury was free to disbelieve Mayes.
When Mayes assessed Currier in connection with the reduction in force,he ignored Currier's past performance evaluations and gave Currier ascore that was approximately one half the score given to five out of theother six business unit managers. The five Matrix categories ("achievesresults," "criticality of skills," "qualifications," "businessorientation," and "nterpersonal skills" were entirely subjective and thejury could well have been dissatisfied with Mayes' vague explanations asto why Currier received low scores in some of the Matrix categories. Withregard to the "ualifications" category, Mayes testified that "based on[his] observations, the other business units, based on performance asshown, their ability to use those skills and their perception to managebusiness were better." Tr. 166:19-1. With regard to the "criticality ofskills" category, Mayes testified that he had not seen Currier apply hisskills to the "Changing business environment." Tr. 166:11-18. Theguidelines accompanying the Matrix stressed that scores should be basedon "prospective considerations." Although "prospective considerations" or future contributions may be a legitimatebusiness-related consideration, the jury could have found that Mayesapplied the consideration in an age discriminatory manner. When decidingpretext, the jury was entitled to consider the subjectivity of thisassessment process and the weakness of the reasons Mayes gave for hisratings, or whether they were masking age discrimination.
A few weeks before terminating Currier, Mayes offered him a highranking position (plant or operations manager) in the China facility andCurrier declined. The jury might have concluded that Mayes simply did notwant Currier to remain at the North Berwick facility and so ranked himlowest in order to get rid of him. The jury might also have questionedwhether Currier, who Mayes apparently thought was competent enough tohold a management position in China and whom previous managers had ratedso favorably, could possibly have deserved so low a score on the Matrix.In short, Currier presented sufficient evidence for the jury todisbelieve Mayes' explanation why he ranked Currier last among thebusiness unit managers. The jury apparently found Mayes' testimony weakand ultimately unpersuasive.
Although there was sufficient evidence for the jury to conclude thatMayes ranked Currier lowest for some reason other than that Currier wasthe least competent business unit manager, there was no direct evidencethat age discrimination, as opposed to mere dislike or something else,was the motivating factor. What Currier had was his own age (61), Mayes' age (41), thefacts that all of the retained business unit managers were younger thanCurrier and that Mayes filled two open business unit manager positionswith younger employees, and statistician Dr. Gupta, who testified thatthe overall reduction in force had a disproportionate effect on olderemployees.
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000),the Supreme Court considered whether "a defendant is entitled to judgmentas a matter of law when the plaintiff's case consists exclusively of aprima facie case of discrimination and sufficient evidence for the trierof fact to disbelieve the defendant's legitimate, nondiscriminatoryexplanation for its action." The Court held that "[i]n appropriatecircumstances, the trier of fact can reasonably infer from the falsity ofthe explanation that the employer is dissembling to cover up adiscriminatory purpose. Such an inference is consistent with the generalprinciple of evidence law that the factfinder is entitled to consider aparty's dishonesty about a material fact as `affirmative evidence ofguilt.'" Id. at 147. The Court added, however, that the prima facie caseplus sufficient evidence to disbelieve the employer's explanation will notalways be sufficient. Whether judgment as a matter of law is appropriatedepends on a number of factors, including "the strength of theplaintiff's prima facie case, the probative value of the proof that theemployer's explanation is false, and any other evidence that supports theemployer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 149.
Here, Currier's prima facie case was sufficient, but not particularlystrong. Currier did present a strong case that Mayes' explanations forthe low ratings were unpersuasive. Yet although Currier presentedevidence that his low Matrix score was unsupported by his pastperformance, Currier undisputedly missed his cost target in 1998. Unlikein Reeves, Currier did not produce evidence that his supervisor madederogatory comments about his age. (Currier testified that, until Mayesfired him, he did not feel that Mayes treated him differently because ofhis age. Tr. 284:6-10, 285:15-17.) But Currier did present evidence aboutthe selection of younger, less experienced employees for the positions hesought, the ages of those retained when he was terminated, and astatistical analysis showing that the older employees were more likely tobe selected for termination.
I instructed the jury that it could not find in favor of Currier unlessit determined that he was terminated because of his age. Curriermade a prima facie showing of age discrimination, offered enoughevidence for the jury to discredit Mayes'reasons for ranking Currierlowest, and provided contested evidence from which the jury could inferpretext and age discrimination.4 The case was not strong but, considering Reeves, I conclude that there wassufficient evidence for the jury to infer that Currier's age was the realreason that Mayes selected him to be terminated.
(3) The Admissibility of Dr. Gupta's Testimony
Dr. Sat Gupta, a statistician, testified that the reduction in forcehad a disproportionate effect on older employees. In both its Motion forJudgment as a Matter of Law and its Motion for a New Trial or Remittitur,UTC argues that Dr. Gupta's analyses were flawed, unreliable andtherefore inadmissible under Daubert v. Merrell Dow Pharmaceuticals,Inc., 509 U.S. 579 (1993), and that his testimony unfairly taintedthe verdict. Specifically, UTC complains that Dr. Gupta improperlyanalyzed all 183 salaried employees rather than only the 44 employees injob categories subject to the reduction in force, and that he failed toconsider whether any factors other than age played a role in the lay offdecisions.
Statistical analyses are admissible in disparate treatment cases"unless they are so incomplete as to be inadmissible as irrelevant."McMillan v. Mass. Society for the Prevention of Cruelty to Animals,140 F.3d 228, 303 (1st Cir. 1998). In this case, Dr. Gupta looked at the effect that the reduction inforce had on the entire Pratt & Whitney plant at North Berwick, using a2-sample T-test, a binary logistic regression model, and a Fischer'sexact test. Based on the results of these tests, Dr. Gupta concluded thatthe overall reduction in force had a disproportionate effect on olderemployees and that employees over the age of 61 were significantly morelikely to be selected for termination. If every employee at the NorthBerwick facility was at risk for being terminated, Dr. Gupta's testimonywould be unquestionably relevant to whether the selection process was ageneutral (and therefore relevant to the fourth element of the prima faciecase). However, by the close of UTC's case in chief, the evidenceestablished that ultimately only 44 out of the 183 salaried employeeswere at risk for the reduction in force. The 44 consisted of 5 categoriesof employees; one employee from each category was ultimately terminated.Each of the 5 categories of employees was assessed by one of 5 differentsupervisors. Mayes assessed only one category, the business unitmanagers. Although these details of how the termination decisions weremade were apparent by the close of all the evidence, they were not clearwhen I admitted Dr. Gupta's testimony during Currier's case-in-chief.
The controversy surrounding Dr. Gupta's testimony started well beforetrial. On December 9, 2002, UTC filed a motion in limine seekingto exclude Dr. Gupta's testimony on the same grounds it advances now. The MagistrateJudge denied the motion, noting that "if credited by the jury, Dr.Gupta's testimony would tend to prove that whether a given employee wasselected for termination in [Pratt & Whitney's] facility-wide reductionhad a strong statistical correlation with age." Before trial, UTC filedanother motion in limine, this time to exclude the ages of all employeeswho were not business unit managers. I denied the motion because itremained a jury question how the termination decisions were made and whomade the decisions. I admitted Dr. Gupta's testimony at trial for thesame reason. Dr. Gupta was not the last of Currier's witnesses. When Dr.Gupta took the stand, Mayes had already testified that only 44 employeeswere at risk for the reduction in force and that he assessed only 7 ofthose employees. Currier, however, was still free to contradict thattestimony and to offer a conflicting version of how the terminationdecisions were made and who made them.5 Further testimonycorroborating Mayes' version of the facts did not come in until UTC'scase-in-chief, when two of UTC's witnesses testified that only 44employees were assessed and that five different supervisors completed thefive different assessments.6 See Def.'s Mot. for New Trial at 10. Dr. Gupta's testimony was properly admitted at the time it was offeredbecause how the termination decisions were made had not yet beenestablished. UTC objected to Dr. Gupta's testimony while he was on thewitness stand and moved for judgment as a matter of law at the close ofall the evidence. But UTC did not ask me to make admission of thetestimony conditional, see Fed.R.Evid. 104(b), nor did it move to strikeDr. Gupta's testimony or for a mistrial at the end of its case-in-chiefwhen, it now argues, it was finally undisputed that only 44 North Berwickfacility employees were considered for termination and that Mayes playeda direct role in selecting only one employee, Currier.7 Dr. Gupta'stestimony was relevant to a disputed issue of fact when I admitted it.Because UTC took no steps thereafter to remove Dr. Gupta's testimony fromthe jury's consideration, it cannot now complain that it was unfairlyprejudiced by the jury having heard the testimony.8 UTC's argument that Dr. Gupta should have worked variables otherthan age into his analyses is appropriately directed to the weight, andnot the admissibility, of Gupta's testimony. That the layoff decisionsmight have been explained by something other than age discrimination doesnot make Dr. Gupta's analyses so incomplete as to be irrelevant. UTCchallenged Dr. Gupta's testimony extensively through cross-examinationand through the presentation of its own expert witness, who said that Dr.Gupta's methods were unreliable. But UTC did not offer competingstatistical evidence using the variables that UTC faults Dr. Gupta forfailing to consider. I conclude that Dr. Gupta's testimony was properlyadmitted and not unfairly prejudicial.
(4) The Jury Instructions
Finally, UTC argues that the jury instructions were confusing and thatI should have included several of its proposed instructions. These areall arguments that UTC raised at trial. I see no reason to change therulings or elaborate further upon them.
UTC's Motion for Judgment as a Matter of Law is DENIED. B. UTC's MOTION FOR A NEW TRIAL, OR IN THE ALTERNATIVE, REMITTITUR
(1) New Trial
UTC argues that it is entitled to a new trial because I erroneouslyadmitted Dr. Gupta's testimony, and failed to instruct the jury on how itshould weigh statistical evidence. Dr. Gupta's testimony was admissibleand the jury was free to give his testimony the weight it saw fit. UTC'sproposed instruction on statistical evidence derived from cases decided atthe summary judgment stage. I decided then and now that those cases donot call for a separate instruction on statistical evidence. UTCchallenged Dr. Gupta's testimony extensively on cross-examination,through expert testimony, and during its closing argument. The jury wasequipped with all the information it needed to weigh Dr. Gupta'stestimony properly; a special instruction on statistical evidence wasunnecessary. The Motion for a New Trial is DENIED.
(2) Remittitur
Remittitur is appropriate only if UTC can show that the damage award is"grossly excessive, inordinate, shocking to the conscience . . . or sohigh that it would be a denial of justice to permit it to stand." Kosterv. TWA, 181 F.3d 24, 34 (1st Cir. 1999). UTC argues that the evidence wasnot sufficient to support any award of back pay because Currier wasoffered, and refused to accept, two comparable positions: an off-shiftadministrator position and a management position in China. This is amitigation argument where UTC bears the burden of proof. Currier testified that he was not offered the off-shiftadministrator position and the jury was free to believe him. Moreover,the duty to accept substantially equivalent employment extends only tojobs available On the relevant geographic area." Quint v. A.E. StaleyMfg., 172 F.3d 1, 16 (1st Cir. 1999). China is outside the relevantgeographic area in this case, and the jury was entitled to find thatCurrier did not fail to mitigate his damages by declining that job.
UTC also argues that the back pay award is excessive because theevidence showed that Currier stopped looking for work in March of 2001when he applied for Social Security benefits. Currier testified that"[a]ny serious searches" for work stopped once he received SocialSecurity. Tr. 313:13-16. Currier also testified, however, that, despitereceiving Social Security benefits, he was "still out there," that hewent to truck driving school in Portland, and that he never stoppedlooking for work. Tr. 269:1-14; 313:19-20. Whether or when Currierfailed to mitigate damages by withdrawing from the labor market wasfor the jury to decide. Currier sought back pay in the amount of$338,931; the jury's award of $101,580 is not grossly excessive.9
UTC also challenges the jury's award of $275,000 to compensate Currierfor noneconomic losses such as emotional distress and loss of enjoymentof life. Under 5 M.R.S.A. ¶ 4613(2)(B)(8)(e), the jury was free to award Currierdamages for "emotional pain, suffering, inconvenience, mental anguish,loss of enjoyment of life, [and] other nonpecuniary losses." The juryheard evidence that Currier suffered emotional distress and financialstress as a result of his termination. "Translating legal damages intomoney damages — especially on occasions which involve few significantitems of measurable economic loss — is a matter peculiarly within ajury's ken." Nydam v. Lennerton, 948 F.2d 808. 811 (1st Cir. 1991). Thejury's award in this case is not so large as to "shock the conscience."The Motion for Remittitur is DENIED.
C. CURRIER'S MOTION TO AMEND OR CORRECT THE JUDGMENT
(1) Back pay under Count II
Currier asks that the judgment on Count II be amended to include theback pay award of $101,580. The MHRA does provide for recovery of backpay. 5 M.R.S.A. a 4613(2)(B). UTC agrees that the jury's back pay awardapplies under Count II as well as Count I. Opp'n Mot. at n.2. Thatportion of Currier's motion is therefore GRANTED.
(2) Front Pay
During the trial, I told the parties that they could present evidenceregarding the appropriateness of front pay at the end of the trialoutside the presence of the jury. Tr. 444:6-13. Neither party offeredsuch evidence. Currier now requests front pay on both Count I and Count II to compensatehim for the time between entry of judgment and September, 2004, the dateCurrier would have retired had he not been terminated.
Front pay is an available remedy under both the ADEA and the MHRA.Wildman v. Lerner Stores Corp., 771 F.2d 605, 614 (1st Cir. 1985); 5M.R.S.A. ¶ 4613(2)(B). Front pay is generally available only ifreinstatement is impracticable or impossible. Wildman, 771 F.2d at 614.See also Traylor v. Windsor School Dept., 1999 Me. Super. LEXIS 249 (Me.Super. Ct. 1999). Currier argues, and UTC does not contest, thatreinstatement for such a short period of time, January to September,would be impracticable. I agree. However, even in cases wherereinstatement is impracticable, front pay is a discretionary remedy. SeePowers v. Grinnell Corp., 915 F.2d 34, 42-43 (1st Cir. 1990). The LawCourt has not defined what considerations inform a court's decisionwhether to award front pay under the MHRA, but has indicated its generalwillingness to follow the lead of federal law. E.g., Maine Human RightsCom. v. Auburn, 408 A.2d 1253, 1261 (Me. 1979). Under federal law, sincefuture damages are usually speculative, courts, in exercising theirdiscretion, should consider all of the circumstances of the case.Powers, 915 F.2d at 43. A plaintiff's failure to mitigate damages isrelevant to his entitlement to front pay. E.g., Dilley v. SuperValu,Inc., 296 F.3d 958, 967 (10th Cir. 2002). In this case, there was evidence at trial that Currier stopped "serioussearches" for employment after he began receiving Social Securitypayments in March 2001. I instructed the jury that it could not award backpay for any period of time after it found that Currier withdrew from thelabor market. Although Currier requested and offered evidence that he wasentitled to nearly $339,000 in back pay, the jury awarded him $101,580.The jury could have concluded that Currier withdrew from the labor marketor retired on some date prior to trial, and awarded less back pay thanCurrier sought for that reason. A front pay award in this case wouldcontradict the jury's implicit findings. Newhouse v. McCormick & Co.,110 F.3d 635, 641 (8th Cir. 1997). Even without the jury's implicitfindings, however, I would decline to award front pay under either countbased on my own evaluation of the evidence.10 Currier's request forfront pay is DENIED.
(3) Prejudgment Interest
Currier requests prejudgment interest under both Count I and Count II.
(a) Count I-ADEA
Whether to award prejudgment interest on the federal claim is generallya jury question. See Kolb v. Goldring, Inc., 694 F.2d 869, 875 (1st Cir.1982) (ADEA). Currier correctly notes that an ADEA plaintiff is not entitled toboth liquidated damages and prejudgment interest. Because Currierinitially sought both liquidated damages and interest, I expressedconcern at trial that we would have to know "what the jury is doing" onthe question of prejudgment interest, Tr. 422:9-22, so as to avoidimproper duplication. Currier's lawyer agreed that Currier could notrecover both liquidated damages and prejudgment interest. He thenwithdrew the claim to prejudgment interest. Tr. 426 18-21. He now arguesthat "[a]sking a jury to determine an amount of prejudgment interest aspart of its damage award when the Court also submits the question of`willful violation' would lead to either overly complex jury instructionsor uncertainty in the verdict." Reply Mem. at n.4. I am confident,however, that had Currier not withdrawn his claim to prejudgmentinterest, we could have crafted an appropriate instruction, directing thejury to reach prejudgment interest only if it found that UTCOs violationof the law was not willful. Because Currier did not ask that the questionof prejudgment interest be submitted to the jury, he waived his right torequest prejudgment interest on Count I. See Kolb v. Goldring, Inc.,694 F.2d 869, 875 (1st Cir. 1982) (ADEA).
(b) Count II — MHRA
Currier's entitlement to prejudgment interest on Count II is governedby state law. Unlike prejudgment interest on the federal claim, prejudgmentinterest on the state law claim is not a jury question. Therefore,Currier did not waive his right to request prejudgment interest on CountII by failing to request that the issue be submitted to the jury.
In 2003, the Maine Legislature repealed 14 M.R.S.A. a 1602, whichprovided that "prejudgment interest shall be assessed" to the prevailingparty, and added a new provision, providing that prejudgment interest "isallowed." 14 M.R.S.A. § 1602-B (Supp. 2004). The new legislation "appliesto judgments entered on or after July 1, 2003." Pub.L. c. 460, § 13.Section 1602-B(5) provides that "[o]n petition of the nonprevailing partyand on a showing of good cause, the trial court may order that interestawarded by this section be fully or partially waived." UTC objects to theaward of prejudgment interest, arguing that it is impossible to calculateprejudgment interest separately on Counts I and II because the jury didnot render separate verdicts. The jury was not asked to deal with theADEA count and the MHRA count separately, however, because the standardof liability on each count is the same. UTC did not object to, and I havegranted, Currier's motion to add the back pay award to the MHRA count forthat very reason. UTC does not advance any other reason, or "good cause,"for why Currier should be denied prejudgment interest on Count II. I willallow prejudgment interest on Count II.
Section 1602-B(5) provides that interest begins to accrue at "he timeof notice of claim setting forth under oath the cause of action, [is] servedpersonally or by registered or certified mail upon the defendant. Id.Currier filed a sworn charge of discrimination with the Maine HumanRights Commission and the Commission mailed the charge to UTC onSeptember 15, 2000. Prejudgment interest began to accrue on that day.11Pursuant to section 1602-B(7)(B), "the rate of prejudgment interest isthe one-year United States Treasury bill rate" plus 1%.
III. CONCLUSION
UTC's motions for Judgment as a Matter of Law and for a New Trial orRemittitur are DENIED. Currier's Motion to Amend or Correct the Judgmentis GRANTED in part as follows: Judgment on Count II shall be amended toinclude the $101,580 back pay award but the amounts are duplicative andCurrier may not recover the back pay award twice. I also awardprejudgment interest on Count II from September 15, 2000. Prejudgmentinterest on Count I has been waived and I decline to award front pay oneither Count. Accordingly, the remainder of Currier's motion is DENIED. So ORDERED.
1. Mayes testified that costs in Curriero unit increased becauseCurrier had to resort to overtime in order to meet his lead timereduction goals. Tr. 102:2-9. Currier, however, disagreed. He testifiedthat overtime in his unit did not increase and that the cost per standardhour increase was due to surplus labor. Tr. 241:13-25, 242:1, 244:7-18.
2. I do not express any opinion on whether UTC was obligated toconsider Currier for a business unit manager position once it decided toeliminate Currier's job. However, once UTC decided to consider Currier,it was obligated to do so in an age neutral manner.
3. UTC argues that since three of the four other employees terminatedin connection with the reduction in force were not the oldest in theirrespective categories, the selections were age-neutral. Def.'s Mot. forJML at 7-8. That these employees were not the oldest, however, does notestablish that age played no role in their selection.
4. UTC argues that, in order to demonstrate that Mayes `explanationwas pretextual, Currier had to show that, but for the agediscrimination, another business unit manager would have been selectedfor termination. Def.'s Mot. for JML at 8-9. However, the cases that UTCcites for this proposition do not say that plaintiffs must prove someoneelse should have been selected. In McGrath v. Lockheed Martin Corp., 48Fed. Appx. 543 (6th Cir. 2002), the Sixth Circuit said that, becausereductions in force often require the termination of qualifiedemployees, the plaintiff had to show something more than that he was agood employee. In Cruz Ramos v. Puerto Rico. Sun Oil Co., 1998 U.S.Dist. LEXIS 22799 at *10 (D.P.R. April 20, 1998), the court held thatevidence that the plaintiff was as qualified as his co-workers was notsufficient to establish that the employer's decision to rank theplaintiff lowest was a pretext for age discrimination. In Currier's case,the evidence was not so limited. In addition to offering evidence that hewas qualified and competent, Currier demonstrated that Mayes placed anemployee with no experience as a business unit manager in a position thatCurrier, with years of experience, sought. Even assuming that Currier hadto demonstrate that another employee should have been selected fortermination, he implicitly did so by showing that one of the businessunit managers was less experienced than he.
5. See also Pl.'s Opp'n Mot. to Def.'s Mot. for New Trial at 4("[U]ntil the parties were in the midst of trial, Defendant neverprovided information showing that any particular employees or groups ofemployees were less susceptible than others to layoff.").
6. UTC acknowledges that the facts surrounding the terminationdecisions were not established when Dr. Gupta took the stand. Def.'sReply to Pl.'s Opp'n Mot. (New Trial) at 2-3 ("[T]he Court admitted Dr.Sat Gupta's testimony without foundation, during Plaintiff'scase-in-chief before Defendant proffered the undisputed evidence thatCurrier was not similarly situated with respect to all other 182 salariedemployees in North Berwick, whom Gupta statistically compared.").employees whose jobs would be at risk in the first place. As Currierpoints out in his opposition motion, "removing groups of younger employeesfrom consideration in the first stage of the process is no different frompreferring younger workers in the second stage of the process." Pl.'sOpp'n Mot. at 4. And although Mayes personally assessed only the businessunit managers, he was in charge of the entire facility at the time of thereduction in force. The entire plant, with the exception of one small"T-services" unit, reported to him. Tr. 42:18-25. The jury could haveconcluded that Mayes' influence pervaded the plant and the decisionmaking. UTC's arguments regarding Mayes' limited role may have diminishedthe probative value of Dr. Gupta's testimony, but whether the reductionin force was age discriminatory remained a question for the jury.
7. UTC's lawyer did move to strike twice during Dr. Gupta'stestimony. Tr. 392:5-18. Neither motion was directed at the substance ofDr. Gupta's testimony, however. The first motion was made in response toDr. Gupta's characterization of the case as an "age discrimination case."I responded by telling the jury to disregard what kind of a case it was.Tr. 392:3-7. The second "notion to strike" was actually an objection toDr. Gupta going beyond the scope of the question posed to him. Isustained the objection. Tr. 392:8-17.
8. Moreover, contrary to UTC's assertions, the jury could find thatDr. Gupta's analyses remained relevant even at the close of all theevidence. Although by the end of trial the evidence established that only44 employees were at risk and that Mayes personally assessed only the 7business unit managers, the extent of Mayes'involvement in the overallreduction in force remained a jury question. Mayes testified that UTCprovided a percentage by which the work force must be reduced and thathe, Pickett, and Murphy together identified the job categories subject tothe reduction in force. Tr. 152:9-17; 153:9-18. Thus, Mayes helpedidentify the pool of employees whose jobs would be at risk in the firstplace. As Currier points out in his opposition motion, "removing groupsof younger employees from consideration in the first stage of the processis no different from preferring younger workers in the second stage ofthe process." Pl.'s Opp'n Mot. at 4. And although Mayes personallyassessed only the business unit managers, he was in charge of the entirefacility at the time of the reduction in force. The entire plant, withthe exception of one small "T-services" unit, reported to him. Tr.42:18-25. The jury could have concluded that Mayes'nfluence pervaded theplant and the decision making. UTC's arguments regarding Mayes'limitedrole may have diminished the probative value of Dr. Gupta's testimony,but whether the reduction in force was age discriminatory remained aquestion for the jury.
9. UTC also argues that it was entitled to have back pay damagesoffset by money earned through other employment, severance payments, andpension payments. I instructed the jury that it must deduct severance,vacation pay, and wages obtained from other employment. Nothing about thejury's verdict suggests that it ignored my instruction. As far as pensionpayments are concerned, I see no reason to change my ruling at trial.
10. The First Circuit has held that courts should consider theavailability of liquidated damages when deciding whether to award frontpay on the federal claim. Powers v. Grinnell Corp., 915 F.2d 34, 42-43(1st Cir. 1990). The reason that it is appropriate to consider theavailability of liquidated damages on the federal claim is that thefederal statute is designed to make victims of discrimination whole, notto grant them a windfall. See Id. Liquidated damages, therefore, reducethe need for front pay. Since the ADEA does not recognize noneconomicdamages, the $275,000 Currier received under Count II on top of his backpay has the same effect as a liquidated damage award. Thus, assuming thatthe awards on both counts are upheld, the generous noneconomic damageaward under Count II militates against awarding front pay on Count I'sfederal claim.
11. Nothing in the record demonstrates that the sworn charge wasserved personally or by registered or certified mail, as the statuterequires, but UTC does not challenge the accrual date on this ground. UTCdoes argue that prejudgment interest should not start to accrue until thedate that Currier stopped receiving severance payments. However, UTC doesnot offer any information as to when it was that the severance paymentsceased. At trial, Currier testified that he received 16 weeks ofseverance pay. Assuming that the payments started when Currier wasterminated, his payments would have stopped sometime in early October.The date is speculative, however. Moreover, section 1602-B(5) clearlyprovides that prejudgment interest begins to accrue on the date that thedefendant receives notice of the claim. Accordingly, I find thatSeptember 15 is the proper accrual date.