Paolitto v. John Brown E.&C., Inc.

151 F.3d 60, 50 Fed. R. Serv. 182, 1998 U.S. App. LEXIS 17054, 74 Empl. Prac. Dec. (CCH) 45,573, 77 Fair Empl. Prac. Cas. (BNA) 1351
Court of Appeals for the Second Circuit·Decided July 17, 1998·No. Nos. 97-7477, 97-7483·Published·Cited by 58 cases

Opinion

WINTER, Chief Judge.

This appeal and cross-appeal arise from a complaint alleging that Anthony Paolitto was unlawfully denied a promotion to the position of Chief Structural Engineer by John Brown E.&C., Inc. (“Brown”). Paolitto claims that the denial was illegal because it was: (i) based on his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”); (ii) in breach of a 1981 oral contract; and (iii) in retaliation for his filing an administrative claim with the Connecticut Commission on Human Rights and Opportunities (“CHRO”), also in violation of the ADEA. A jury returned a verdict in favor of Paolitto on all three claims and awarded compensatory damages in the following amounts: $100,000 for discriminatory failure to promote, $100,000 for breach of contract, and $29,000 for retaliation. The jury also found that Brown had acted willfully, thus entitling Paolitto to liquidated damages on the first and third claims in amounts equal to the jury’s compensatory damage awards. See 29 U.S.C. §§ 626(b), 216(b). Judge Goettel ruled that each of the three claims asserted an alternate theory of liability that would support only a single damage award. He then entered judgment based on the ADEA failure-to-promote claim because it would maximize the return to Paolitto. Accordingly, Paolitto was awarded $200,-000 — $100,000 for compensatory damages and $100,000 for liquidated damages — plus $60,000 in prejudgment interest. Both parties appeal.

Brown contends that Judge Goettel erred by excluding from evidence the findings and investigative file of the CHRO — the state equivalent of the EEOC — which concluded that Paolitto’s evidence of age discrimination was insufficient. Brown contends further that the compensatory damage award on Paolitto’s ADEA failure-to-promote claim was excessive. Paolitto argues that, although the compensatory damage awards on his first and third claims do overlap entirely, he should have received liquidated damages on both claims. Paolitto also asserts that he is entitled either to an appointment to the position of Chief Structural Engineer or to an award of front pay. For the reasons that follow, we affirm.

BACKGROUND

Paolitto was hired in 1971 as a design engineer by Crawford & Russell, Brown’s predecessor company.1 In 1981, Paolitto was offered a job at a rival engineering company. He was allegedly persuaded to stay with Brown only after being promoted to Assistant Chief Structural Engineer and receiving a promise from the then-Chief Structural [63] Engineer, Leo Agranoff, that Paolitto would succeed him as Chief when Agranoff retired.2

Agranoff died in 1985, and Paolitto was passed over for the position of Chief in favor of Neil Runyan. In 1987, Runyan resigned and Joseph Cozza, who had become the Vice President of Engineering in January 1987, began discussing Runyan’s potential successor with department heads and project managers. Ultimately, Cozza hired Robert Coleman, who was then 37 years old. Paolitto was 57. Cozza articulated three reasons for hiring Coleman over Paolitto: (i) Paolitto had a history of using excessive overtime in the jobs he supervised; (ii) he had poor interpersonal skills; and (iii) he did not have a Professional Engineers’ License.

Paolitto filed an administrative charge of age discrimination with the CHRO. In January 1989, the CHRO dismissed Paolitto’s charge for lack of sufficient evidence of age discrimination. Paolitto claims that, after he filed his charge with the CHRO, Brown gave him only insignificant assignments that curtailed his professional development. This suit followed.

Paolitto’s amended complaint contained three claims: (i) that Brown violated the ADEA by failing to promote Paolitto because of his age to the position of Chief Structural Engineer; (ii) that Brown’s failure to promote him breached the oral contract between Paolitto and Agranoff; and (iii) that Brown retaliated against him, in violation of the ADEA, for filing an administrative charge with the CHRO.

At trial, Paolitto offered evidence showing that, by virtue of his experience, job appraisals, and responsibility, he was more qualified than Coleman for the position of Chief Structural Engineer. He also offered evidence that the bases articulated by Cozza for passing over Paolitto in 1987 were either false or irrelevant. This evidence was sufficient to allow a jury to conclude that Brown violated the ADEA by failing to promote Paolitto and by retaliating against him. The issues on appeal and cross-appeal involve the exclusion of the CHRO findings and investigative file and the denial of various post-trial motions. The facts relevant to these issues follow.

A. Exchision of CHRO Findings

In support of his age-discrimination claim, Paolitto introduced evidence indicating that Cozza had a pattern of appointing young workers to senior management positions. Specifically, Paolitto provided a chart showing the ages of the six persons appointed by Cozza to senior management positions between 1987 and 1989. The average áge of such appointees was 46.3, but the chart noted that the “[ajverage age of promotions/appointments before Paolitto[’s] age discrimination complaint” — ie., his CHRO filing — was 39.6. This notation and Paolitto’s accompanying examination of Cozza were aimed at revealing that Cozza’s post-CHRO-filing appointments — with an average age' of 53— were an attempt to cover up Cozza’s prior discriminatory practices in the face of Paolit-to’s age-discrimination charge. In response, Brown sought to introduce the CHRO finding — which Judge Goettel had previously ruled inadmissible — to show that the CHRO charge had been dismissed in Brown’s favor before Cozza made any of the post-filing appointments. Judge Goettel refused to admit the CHRO finding but allowed Cozza to testify that there was “no agency complaint pending at the time” when he made the later appointment decisions. On Paolitto’s redirect examination, Cozza testified that “when the [CHRO] dismissed this case I thought it was over. I had no reason to think it would go any further.” At this point, Paolitto’s counsel began questioning Cozza about the nature and quality of the CHRO investigation. Brown again sought to admit the CHRO findings, arguing again that Paolitto had “opened the door.” Once more, Judge Goettel refused to admit the evidence, but allowed Brown to elicit from Cozza information about the testimony provided to the CHRO investigator.

[64] B. Verdict and Post-trial Rulings

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Paolitto v. John Brown E.&C., Inc., 151 F.3d 60, 50 Fed. R. Serv. 182, 1998 U.S. App. LEXIS 17054, 74 Empl. Prac. Dec. (CCH) 45,573, 77 Fair Empl. Prac. Cas. (BNA) 1351 (2d Cir. 1998).

151 F.3d 60 (Paolitto v. John Brown E.&C., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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