Citations
- 339 F. Supp. 3d 466
Full opinion text
I. BACKGROUND...478
II. LEGAL STANDARD...484
III. DISCUSSION...486
A. Discrimination Based on Briggs' Age...486
1. Prima Facie Case...487
2. Pretext...491
B. Retaliation for Complaints Regarding Age Discrimination...496
1. Prima Facie Case...497
2. Pretext...499
C. Jury's Responses to Verdict Sheet are not Inconsistent...500
D. Hostile Work Environment Based on Age...503
E. Retaliatory Hostile Work Environment Based on Complaints of Age and Gender Discrimination...506
F. Back Pay and Front Pay...506
1. Temple Misunderstands Briggs' Duty to Mitigate...507
2. The Jury Properly Calculated Briggs' Back Pay Award...510
3. The Court did not Err in Answering a Question Submitted by the Jury during Deliberations...511
4. Briggs is Entitled to a Front Pay Award...512
G. Willfulness under the ADEA...514
H. Compensatory Damages...518
I. Briggs' Motion for a New Trial on Punitive Damages...521
IV. CONCLUSION...523
I. BACKGROUND
Briggs began working for Temple in February 2001 as an Editorial Assistant in the Center for Neurovirology and Cancer Biology. In 2005, she became an Executive Assistant to Interim Dean Allen Nicholson of the College of Science and Technology. At trial, Briggs presented a report prepared by or for Temple's Human Resources Department that explained the reasons Briggs was selected for this position: "The candidate was selected based on her outstanding communication skills both verbal and written. Her previous work experience in developing and writing grant applications, providing editorial assistance, customer service skills, prior university experience, and education made her the best qualified candidate." (Pl.'s Trial Ex. 1, at 2.) Over the next five years, Briggs would work for not only Dean Nicholson, but Dean Keya Sadeghipour, Dean Hai-Lung Dai, and Vice Dean George Palladino. (07/17/2018 AM, Trial Tr. 22:9-15.)
A. Briggs Begins Working as an Executive Assistant for Dr. Jie Wu
In October 2009, Briggs became the Executive Assistant to then-Chair of the Department of Computer Information Services ("CIS"), Dr. Jie Wu ("Wu"). At this time, Briggs also indirectly reported to Greg Wacker ("Wacker"), former Director of Finance and Administration and current Assistant Dean of Finance and Administration. As an Executive Assistant to Wu, Briggs provided administrative support and performed a variety of functions, including directing all ongoing and special projects, developing programs and systems to manage daily activities, and planning and coordinating events. The essential functions of her job also included serving as a liaison for Wu and representatives of other Temple administrative and academic offices, as well as working with a wide array of Temple constituents while ensuring the administrative operation of the CIS department.
Despite testimony that, during her eight years of employment at Temple prior to 2009, Briggs had never been written up for any reason, been given any written discipline or suspension, nor ever been placed on any sort of performance improvement plan, (id. at 22:24-23:13), Briggs testified that Wu would raise his voice at her and yell degrading things at her in public. (Id. at 29:25-30:13 ("There were times when he would come out and yell at me in the front office. I-on two separate occasions-I remember him looking at me and saying, what are you, stupid. And then another time when he said, can't you speak English. And I was-you know, I just don't know how to respond to those kinds of comments.").) Briggs further testified that this conduct caused her embarrassment and that she feared him when he treated her in this way. (Id. at 28:11-29:24.)
B. Wu Makes Age-Related Comment to Briggs
During trial, the jury heard testimony from Briggs that, on November 9, 2011, Wu, who was born in China and had lived there until the late 1980s, discovered that Briggs' birthday was the following day. He asked Briggs how old she was turning, and Briggs responded that she was turning fifty-seven. Wu responded, "You know, in China women are put out to pasture by your age." (Id. at 31:1-13.) Embarrassed, Briggs replied to Wu, in essence, "With all due respect, we're in America and not in China." (Id. at 31:17-25.) Within an hour, Briggs was called into a meeting with Wacker where he informed her that Wu claimed that she had been unprofessional to him and that she was going to be written up. (Id. at 32:13-17.) Briggs explained Wu's remark that had prompted her comment, but Wacker said it did not matter. (Id. at 32:15-20; see also 07/16/2018 AM, Trial Tr. 7:2-10.)
During his own testimony, Wu admitted that, at the time, he knew Briggs was in her 50s, but denied ever saying such a phrase. However, he admitted having discussed "cultural differences" between the United States and China with Briggs. (07/16/2018 PM, Trial Tr. 61:13-62:19.)
Briggs received her first written warning for the November 9, 2011 incident. (Pl.'s Trial Ex. 3.) However, neither Wu nor Wacker could explain to the jury what the exact motivation was for this discipline. (See 07/16/2018 AM, Trial Tr. 55:9-56:1 (Wacker); 07/16/2018 PM, Trial Tr. 65:5-14 (Wu).) Wu testified that he never reviewed any documentation regarding the November 9 incident and resulting discipline. (07/16/2018 PM, Trial Tr. 65:13-20.) Likewise, Wacker testified that, although he never reviewed any documentation regarding this incident, he was certain that the discipline was not a result of Briggs' comments to Wu on November 9. (07/16/2018 AM, Trial Tr. 56:13-19.) When asked about any supporting documentation, Wacker testified that either his assistant, Drew DiMeo ("DiMeo"), or Human Resources Director Dierdre Walton ("Walton") would have it. (Id. ) During her own testimony, however, Walton contradicted Wacker, stating that the discipline was indeed related to Briggs' "blowout between her and Dr. Wu," but that she had never received any supporting emails or documentation concerning the incident from Wu or Wacker. (07/17/2018 PM, Trial Tr. 116:9-12, 119:17-24.)
C. Briggs Makes a Complaint to Temple's Equal Opportunity Compliance Office
After receiving her warning, Briggs contacted Walton directly to explain her story and make a complaint about Wu's comments regarding women in China. (Id. at 121:12-122:6.) Walton testified that it was clear that "Briggs had a problem with the comment" and "was offended by it." (Id. at 122:1, 9.) As a result, Walton instructed Wacker to "look into" the incident by conducting an investigation into Wu's comment to Briggs. (Id. at 127:3-12.) Accordingly, Wacker discussed Briggs' complaint with Wu and other potential witnesses in the office. (Id. at 127:15-128:23.)
Additionally, Briggs complained directly to Wacker about Wu's comments. (07/17/2018 AM, Trial Tr. 33:25-34:6.) Wacker suggested that Briggs discuss her complaints with Sandra Foehl ("Foehl"), Temple's Director of the Equal Opportunity Compliance Office ("EOC"). (07/16/2018 PM, Trial Tr. 7:2-6.) Though Wacker testified that he did not believe Briggs to be making a complaint of age or gender discrimination, he still referred her to Foehl because she handled such personnel complaints. (Id. at 7:7-8:2.)
On July 25, 2012, Briggs emailed Foehl to set up a meeting. (See Pl.'s Trial Ex. 5, at 2.) At that meeting, Briggs informed Foehl that she felt she was being discriminated against, feared retaliation from Wu and Wacker, and described Wu's comment regarding women in China. (07/17/2018 AM, Trial Tr. 38:9-16; 07/18/2018 PM, Trial Tr. 4:22-5:4; see also Pl.'s Trial Ex. 4 (notes taken by Foehl during meeting with Briggs outlining issues with Wu).) Foehl informed Briggs that she could file a formal complaint of discrimination; however, Briggs admitted that she was scared to do so. (Pl.'s Trial Ex. 4 ("File age discrimination complaint? I'm scared.").) However, Briggs did request that Foehl bring this issue up with the new Interim Dean, Michael Klein. (Id. )
On August 2, 2012, Briggs sent Foehl a follow-up email regarding her complaints-primarily asking for a synopsis of the complaint Foehl would send to Dean Klein and again reiterating her trepidation with making the "complaint." (Pl.'s Trial Ex. 5, at 1.) After receiving Briggs' follow-up email, Foehl emailed Walton and another member of the Human Resources Department, Eric Brunner, to solicit information about Briggs. (Pl.'s Trial Ex. 6 ("Do either of you have some history with Ruth Briggs in the College of Science and Technology, especially since her assignment to [CIS]? If so, will you share?").)
On September 9, 2012, Briggs again followed-up with Foehl. (Pl.'s Trial Ex. 7.) Again, Briggs referenced Wu's comment and further complained that she was being underpaid compared to her male colleagues and that her job responsibilities were being taken from her and given to a student-worker, Hailey King ("King"). (Id. ) In response, Foehl provided Briggs with information regarding how to further inquire about her compensation and opportunities available to file additional complaints of unlawful discrimination to government compliance agencies. (Pl.'s Trial Ex. 8.) Foehl also requested more information regarding specific instances of bullying, threats, and expressions of age bias by Wu and Wacker in order to proceed further with her complaint. (Id. ) Unsatisfied by the lack of progress with Foehl, Briggs emailed Rhonda Brown ("Brown"), the Vice President of the Diversity Department. (Pl.'s Trial Ex. 7.) In her email, Briggs explained that she was unaware if Foehl had ever filed her complaint or what issues the complaint addressed. (Id. )
D. Briggs Continues to Complain about Disparate Treatment at Temple
Briggs further testified that she was being bullied and harassed by Wu. In early 2013, Briggs raised concerns to Foehl and Brown. In a February 7, 2013 email to Brown, Briggs said, "I am so bullied and harassed all day. Two people in the Dean's office tell me that I can find another job. That can't be right." (Pl.'s Trial Ex. 10.) Brown responded by telling Briggs to address these issues with Foehl. (Id. )
Accordingly, Briggs sent another email to Foehl on February 8, 2013, stating:
Sandy,
I am so bullied and harassed all day. Everyday [sic] morning, I must meet with my direct supervisor and Greg Wahker's [sic] assistant, Drew DiMeo for "staff meetings" to discuss my failure to comply with a directive that prohibits any work activity that has not been approved by my supervisor, all of which are related to performing daily functions in the office ... such as answering questions from students or visitors to our building. The threat of discipline for assisting a visitor or responding to a request from another office does not seem to have any actions of wrong doing, rather fulfilling a "customer service" expectation for the university. No other staff member is required to meet daily for a dose of public humiliation and my request to move the meetings to a private location was flat out denied .
When I asked for clarification on an assignment, it is reported to the dean's office as a challenge to his authority. If he can have a someone [sic] there to protect his interests, there is more than an element of unfairness. It is beginning to feel like psychological abuse.
If my only resource to address this problem is through HR, this is unacceptable. Can I contact a mediator?
(Pl.'s Trial Ex. 9 (emphasis added).) Foehl responded that this was an issue for Human Resources and that Briggs should contact Walton. Foehl then forwarded Briggs' email to Walton with a note saying that she did not believe there was a claim of unlawful discrimination or harassment, but that Walton should let her know if Briggs raised an EOC complaint. (Id. )
In or around the same time, Briggs contacted Cameron Etezady ("Etezady"), University Counsel. Briggs informed Etezady that she was being discriminated against on the basis of her age and gender, and that she feared retaliation from Wu. (Pl.'s Trial Exs. 12-14.) Etezady directed Briggs back to Foehl. (Pl.'s Trial Ex. 12.) Briggs replied to Etezady, explaining that she was being given the run-around and had already talked to Foehl to no avail. (Pl.'s Trial Ex. 13.) Etezady then placed Briggs in contact with another member of the University Counsel's office, Fay Trachtenberg ("Trachtenberg"). (Pl.'s Trial Ex. 14.) However, Trachtenberg merely told Briggs to contact Walton. (07/17/2018 AM, Trial Tr. 57:11-17.)
E. Briggs Receives Second Discipline for Failing to Book Itinerary
In March 2013, Briggs received her second written discipline, which, this time, was accompanied by a three-day unpaid suspension. (Id. at 57:24-58:4.) According to Briggs' testimony at trial, she was working with Assistant Chair Eugene Kwatny ("Kwatny") on the hiring committee for the department. (Id. at 58:7-12.) Briggs was responsible for arranging faculty candidates to come to Philadelphia to interview by booking their travel, lodging, and food arrangements. (Id. ) After exchanging proposed itineraries with one particular candidate, Briggs informed Kwatny that there was some difficulty scheduling the candidate's trip. (Id. at 58:13-59:3.) Kwatny told Briggs to tell the candidate that he should proceed with booking his own travel arrangements and that Temple would reimburse him afterwards. However, Briggs admitted that she never followed up with the candidate and that he never came to Temple for his interview. (Id. ) For this mistake, Briggs received a three-day unpaid suspension from Wu, which was the only time he had ever issued such a punishment. (07/16/2018 PM, Trial Tr. 79:12-14.)
In an April 8, 2013 email to Walton, Briggs explained that she believed the punishment was overly harsh and highlighted what she perceived to be "different standards for performance and productivity." (Pl.'s Trial Ex. 17.) Briggs also provided certain mitigating factors, which included an increase in her workload because another coworker was on leave, causing her to have more responsibilities than normal with no help. (Id. ) Additionally, Briggs pointed to the fact that she took ownership of the mistake and had tried to make it right to show that she was not negligent or careless. (Id. ; 07/16/2018 PM, Trial Tr. 77:8-17.)
On August 6, 2013, Briggs again emailed University Counsel Etezady because she continued to feel singled out by Wu and DiMeo. Etezady referred her again to Walton and Trachtenberg. (Pl.'s Trial Ex. 27.)
F. Briggs Receives Third Discipline for Arriving Late to Work
Briggs received another disciplinary notice from Wu in February 2014. (07/17/2018 AM, Trial Tr. 78:3-17.) In this instance, Briggs had overslept for work by three hours. (Id. ) Upon realizing that she was late, Briggs attempted to reach Judy Lennon, the department secretary, and Wu. (Id. ) After being unable to do so, she informed a student-worker to let either of them know that she would be arriving at work shortly. (Id. ) Briggs testified that she worked late that day to make up for the lost time. (Id. at 79:19-21.) Briggs also disputed testimony provided by Wu that she was late multiple times a week. (Compare id. at 79:22-80:7 ("I feel that that's another way to ... assassinate my character with-there's no documentation, either."), with 07/16/2018 PM, Trial Tr. 80:24-25 ("Q: Every week, she was late? A: Yeah.") and 81:10-14 ("Q: Dr. Wu, I'm asking you if there is documentation that Ms. Briggs was late every week. A: Yeah, almost every week. Q: Where is the documentation of that? A: There is no documentation.").)
The jury also heard testimony from Briggs and Wu that, around the same time that Briggs was late, King, who was considerably younger than Briggs, did not show up to work for three straight days. (07/17/2018 AM, Trial Tr. 81:15-82:2; 07/16/2018 PM, Trial Tr. 82:3-83:21.) King never called into work to tell anyone where she was, but nevertheless, King received no written discipline. (07/16/2018 PM, Trial Tr. 83:20-24.) Wu testified that King was shown leniency due to a hurricane that had left her without power for three days and Temple without power for one. (Id. at 83:15-17; 83:25-84:2.) However, Wu was unable to specify which hurricane had occurred.
G. Briggs Has Phone Intake with Equal Employment Opportunity Commission and Continues to Raise Concerns with Administration
As a result of this latest discipline, Briggs emailed Walton on February 22, 2014, to express her exasperation with the alleged retaliation she was facing. (Pl.'s Trial Ex. 33.) She claimed she was "battered emotionally, insulted, ignore[d], yelled at in front peers, and [made into] the department scapegoat." (Id. ) She further complained that no one in the department or human resources was taking her complaints seriously. (Id. )
On February 25, 2014, Briggs, frustrated from the lack of help from Walton, contacted Foehl and informed her that she had conducted a phone intake with the Equal Employment Opportunity Commission ("EEOC"). (Pl.'s Trial Ex. 34; 07/17/2018 AM, Trial Tr. 88:9-89:3.) Foehl forwarded Briggs' email to Walton. (Pl.'s Trial Ex. 35.) On March 13, 2014, Briggs wrote again to Walton that she felt singled out, was being pushed out of Temple by her supervisors, and that Temple's actions were in violation of state and federal law. (Pl.'s Trial Ex. 37, at 2.)
Briggs' rate of emails increased and, on March 23, 2014, she emailed Walton to explain what she believed to be a concerted effort to get rid of her. (Pl.'s Trial Ex. 38, at 3.) In this email, Briggs detailed an account of the student-worker she had contacted the day she was late and who had personally informed Wu of when Briggs would be arriving. (Id. at 3.) Briggs also wrote that the essential functions of her job had been diminished to "elementary clerical functions" and her responsibilities given to the younger King. (Id. at 4.) She explained the toll this had taken on her personal and professional life, but also asked that Walton keep this communication confidential, as she feared further retaliation from Wu, Wacker, and DiMeo. (Id. at 3.)
In this email, Briggs also raised concerns about a more recent incident that had occurred the previous Friday. (Id. at 4.) According to Briggs' email, she was supposed to input a travel reimbursement into Temple's reimbursement system, Concur, on behalf of Wu. However, she was unable to access the appropriate accounts in the system because she had not yet been granted the appropriate access by the IT department. (Id. ; 07/17/2018 AM, Trial Tr. 99:3-11.) Briggs went on to explain that, after raising this issue to DiMeo and asking him to look into her account access, DiMeo accused her of lying and manufacturing screenshots that showed she had no access. (Pl.'s Trial Ex. 38, at 4.)
Walton discussed the issues raised in the email with Wacker and DiMeo. (07/18/2018 AM, Trial Tr. 41:12-22; 42:5-8.) On March 24, 2014, Walton provided responses to Briggs' "serious allegations." (Pl.'s Trial Ex. 38, at 2.) With respect to Briggs' February tardiness, Walton dismissed Briggs' efforts to contact Wu, writing that Briggs failed to follow the appropriate procedure by talking to a student-worker and not emailing Wu directly. (Id. ) Because of this, Wu requested that Briggs be disciplined. (Id. ("This discipline is not a false report unless any of the facts ... stated above are incorrect.").) As to Briggs' Concur incident, Walton wrote that the Account Payable Department confirmed that DiMeo had updated the permissions the prior Monday. (Id. )
Briggs scheduled a meeting with Foehl on April 1, 2014 to discuss the discrimination she was facing at Temple. (07/17/2018 AM, Trial Tr. 89:24-90:7.) Briggs informed DiMeo that she was going to speak to Foehl about Wu's treatment of her. (Id. at 91:4-13.) Briggs testified that DiMeo responded, "Dr. Wu knows what's going on, and ... it's got to stop." (Id. ) However, despite DiMeo's remark, during Briggs' meeting with Foehl on April 1, 2014, Foehl testified that Briggs asked her about conducting an investigation into her complaints of age and gender discrimination. (07/18/2018 PM, Trial Tr. 31:9-15.)
H. Briggs is Terminated from Temple
Immediately after Briggs' meeting with Foehl, Briggs met with Wacker at his request. (07/17/2018 AM, Trial Tr. 91:16-25.) Walton was also in the meeting with Briggs and Wacker. Briggs was then given a termination notice stating that she was being terminated for "Negligence/Carelessness" and "Disruptive or Disorderly Conduct." (Pl.'s Trial Ex. 45 ("Effective the end of the day today, your employment at Temple University is being terminated.").) According to testimony provided by Wacker and Wu, the termination decision was made together by Wu and Walton. (07/16/2018 AM, Trial Tr. 44:2-14 (Wacker); 07/16/2018 PM, Trial Tr. 68:11 (Wu).) However, according to Walton and Temple's interrogatory responses, the decision was made by Wacker and Wu. (07/18/2018 AM, Trial Tr. 20:16-17; Pl.'s Trial Ex. 62, at 6.)
The termination letter noted two incidents that led to Briggs' termination: (1) the above mentioned failure to complete the Concur invoice; and (2) booking a hotel reservation for a high-profile visitor on the wrong dates. (Pl.'s Trial Ex. 45; 07/16/2018 AM, Trial Tr. 35:25-36:9, 36:17-37:1.) Regarding the second reason, Wacker testified at trial that Briggs was to book a reservation for a visitor of Wu's at the Conwell Inn. Temple prefers to have visiting guests stay at the Conwell Inn because it is on or close to Temple's campus. However, because Briggs booked the wrong dates, she had to scramble to find him accommodations at the Doubletree Hotel in Center City, Philadelphia. (07/16/2018 AM, Trial Tr. 36:17-37:1; see also Pl.'s Trial Ex. 45.) Briggs testified that she changed the reservation dates at the request of Wu. (07/17/2018 AM, Trial Tr. 93:7-94:5.) According to Briggs, she had to change the dates from what she originally booked by shifting the stay by one day. (Id. at 93:12-23.) However, upon realizing there was a miscommunication, she was able to arrange for lodging that night at a hotel in Center City, Philadelphia. (Id. at 94:1-2.)
Two days after receiving her termination notice, Briggs sent an email stating that she would resign in lieu of termination. However, it is undisputed that had she decided not to resign, Briggs would have been terminated involuntarily. (07/16/2018 AM, Trial Tr. 61:12-22; 07/16/2018 PM, Trial Tr. 44:1-4; 07/18/2018 AM, Trial Tr. 54:8-10 ("Her staying there was not an option.").) Briggs was ultimately replaced by an employee, Marilyn Grandshaw, who is currently forty-six years old. (07/17/2018 AM, Trial Tr. 114:20-115:3.)
II. LEGAL STANDARD
A. Judgment as a Matter of Law
In deciding a motion for judgment as a matter of law ("JMOL") under Federal Rule of Civil Procedure 50(b), the court must consider whether, "viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is sufficient evidence from which a jury could find liability." Lightning Lube, Inc. v. Witco Corp. , 4 F.3d 1153, 1166 (3d Cir. 1993) (citing Wittekamp v. Gulf & Western Inc. , 991 F.2d 1137, 1141 (3d Cir. 1993) ). The court is not allowed to weigh the evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. See Aloe Coal Co. v. Clark Equip. Co. , 816 F.2d 110, 113 (3d Cir. 1987). Additionally, the court must draw factual inferences in favor of the non-moving party; however, "[t]he question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party." Kotas v. Eastman Kodak Co. , No. 95-1634, 1997 WL 570907, at *7 (E.D. Pa. Sept. 4, 1997) (Kelly, J.) (quoting Lightning Lube , 4 F.3d at 1166 ).
B. Granting a New Trial
The decision to grant a new trial is left to the sound discretion of the district court. See Blackiston v. Johnson , No. 91-5111, 1995 WL 563834, at *1 (E.D. Pa. Sept. 21, 1995) (citing Gutzan v. Altair Airlines, Inc. , 766 F.2d 135, 140 (3d Cir. 1985) ). New trials may be granted where (1) a jury "fails properly to perform the functions confided to it by law" and reaches a verdict that is against the weight of the evidence or (2) "the trial court delivered the jury from a possibly erroneous verdict arising from circumstances over which the jury had no control," such as allowing improperly admitted evidence, prejudicial statements by counsel, an improper charge to the jury, or newly discovered evidence. Lind v. Schenley Indus., Inc. , 278 F.2d 79, 90 (3d Cir. 1960).
In the latter instance, there is "no usurpation by the court of the prime function of the jury as the trier of facts and the trial judge necessarily must be allowed wide discretion in granting or refusing a new trial." Id. However,
When the district court grants a motion for a new trial based on the weight of the evidence, the court has:
To some extent at least, substituted [its] judgment of the facts and the credibility of the witnesses for that of the jury. Such an action effects a denigration of the jury system and to the extent that new trials are granted the judge takes over ... the prime function of the jury as the trier of facts.
Williamson v. Consol. Rail Corp. , 926 F.2d 1344, 1353 (3d Cir. 1991) (first alteration in original) (quoting Lind , 278 F.2d at 90 ). Accordingly, the district court ought to grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand. Id. (citing EEOC v. Del. Dep't of Health and Soc. Servs. , 865 F.2d 1408, 1413 (3d Cir. 1989) ).
C. Remittitur
The remittitur is well established as a device employed when the trial judge finds that a decision of the jury is clearly unsupported or excessive. See Spence v. Bd. of Educ. of Christina Sch. Dist. , 806 F.2d 1198, 1201 (3d Cir. 1986) (citing Kazan v. Wolinski , 721 F.2d 911 (3d Cir. 1983) ; Keystone Floor Prods. Co. v. Beattie Manuf. Co. , 432 F.Supp. 869 (E.D. Pa. 1977) ). Granting a remittitur is clearly within the discretion of the district court because the judge is in the "best position to evaluate the evidence presented and determine whether or not the jury has come to a rationally based conclusion." Id. (citing Murray v. Fairbanks Morse , 610 F.2d 149, 152-53 (3d Cir. 1979) ). "[W]here no clear judicial error or 'pernicious influence' can be identified but where the verdict is so large as to shock the conscience of the court[,] the court [must order a] plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence." Kazan , 721 F.2d at 914 (citing Scott v. Plante , 641 F.2d 117, 136 (3d Cir. 1981) ; Perzeproski v. Am. President Lines, Ltd. , 319 F.Supp. 1329, 1330 (E.D. Pa. 1970) ). However, if the remittitur is refused, the court must order a new trial. See id.
III. DISCUSSION
A. Discrimination Based on Briggs' Age
During trial, both Briggs and Temple moved for JMOL under Rule 50(a), and the Court denied both Motions. (07/18/2017 PM, Trial Tr. 43:13-58:7, 61:7-13.) In its post-trial Motion for Judgment as a Matter of Law, Temple contends that Briggs failed to establish a disparate-treatment claim under the ADEA and the PHRA because she failed to prove: (1) a prima facie case of age discrimination; and (2) Temple's legitimate nondiscriminatory reason for its actions was a pretext for discrimination. (Def.'s Mem. Law Supp. Mot. J. as a Matter of Law/New Trial/Remittitur ("Def.'s Mem. Law Supp.") 6-19.) According to Temple, "[t]he trial record supports only one conclusion: Ms. Briggs' age was not the but-for cause of Temple's decision to end Ms. Briggs' employment." (Id. at 6 (emphasis in original).)
"The ADEA provides that '[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.' "
Terrell v. Main Line Health, Inc. , 320 F.Supp.3d 644, 655 (E.D. Pa. 2018) (quoting 29 U.S.C. § 623(a)(1) ). In order "[t]o succeed on an age discrimination claim based on disparate impact, a plaintiff must demonstrate that age 'was the 'but-for' cause of the employer's adverse decision.' " Id. at 656 (quoting Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ).
In the absence of direct evidence of age discrimination, as we have here, the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applied. Id. (citations omitted). "Under this framework, the initial burden of establishing a prima facie case rests with the plaintiff." Id. (citing McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817 ). "If the plaintiff makes out a prima facie case, the burden shifts to the defendant to 'articulate some legitimate, nondiscriminatory reason' for its adverse action." Id. (citing McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817 ). "If the defendant articulates such a reason, the burden shifts back to the plaintiff, who must then show by a preponderance of the evidence that the employer's proffered legitimate reason is pretextual." Id. (citing McDonnell Douglas , 411 U.S. at 804, 93 S.Ct. 1817 ).
1. Prima Facie Case
A prima facie case of discrimination in ADEA cases requires that the plaintiff show:
(1) that the plaintiff was forty years of age or older; (2) that the defendant took an adverse employment action against the plaintiff; (3) that the plaintiff was qualified for the position in question; and (4) that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus.
Id. (citing Smith v. City of Allentown , 589 F.3d 684, 689-90 (3d Cir. 2009) ). At the prima facie stage, plaintiff's burden is "not onerous." Id. (quoting Simpson v. Kay Jewelers , 142 F.3d 639, 646 (3d Cir. 1998) ).
There is no question that Briggs was fifty-nine years old at the time that her employment with Temple ended. Temple argues that Briggs has not demonstrated a prima facie case of disparate treatment because of the following: she was not qualified for her position; she did not suffer an adverse employment action; and she failed to establish an inference of discrimination. (Def.'s Mem. Law Supp. 6-14.) The Court finds that the jury had a legally sufficient evidentiary basis to determine that Briggs established a prima facie case of age discrimination under the ADEA.
a. Qualified For Position
Temple argues that Briggs had the education and technical skills required for an Executive Assistant, but that her "repeated, admitted mistakes and violations of Temple's policies rendered her unqualified to remain in her position." (Id. at 6 (citing cases) ); see also Bloch v. Mack Trucks, Inc. , 240 F.Supp.3d 365, 372 (E.D. Pa. 2017) ("An employee who is terminated for cause has not met the third element of the test for a prima facie case by showing that he was qualified for the position from which he was terminated."); Cridland v. Kmart Corp. , 929 F.Supp.2d 377, 387 (E.D. Pa. 2013) (finding that plaintiff failed to establish that he was qualified due to "the volume of Defendant's evidence demonstrating Plaintiff's shortcomings as a Store Manager and the dearth of Plaintiff's evidence offered in support of his qualifications"). It states that:
Ms. Briggs admitted that her supervisors consistently rated her "below average," that "below average" was the highest performance rating she received during her tenure at Temple, 2.91 (on a 4-point scale) was the highest score she received on any evaluation (still below an "average" score of 3.0), and that she received this highest score from Dr. Wu. Moreover, Ms. Briggs admitted to the errors and deficiencies articulated in the warnings and discipline that led to the end of her employment. Said differently, there is no dispute in the record that Temple disciplined Ms. Briggs and Temple offered her the choice to resign in lieu of termination (and Ms. Briggs then chose to resign) because of these errors and deficiencies, and because of Ms. Briggs' repeated violations of Temple's policies.
(Def.'s Mem. Law Supp. 7.)
Briggs argues that she was qualified for an Executive Assistant position and has put forth tangible evidence disputing part of her record of deficient performance and Temple's disciplinary actions. (Pl.'s Br. Opp'n Def.'s Mot. J. as a Matter of Law/New Trial/Remittitur ("Pl.'s Br. Opp'n") 29-31.) Relying upon Temple's decision to hire Briggs over eighteen other candidates in 2005, and her employment history, including her evaluations from 2005, 2006, 2007, and 2011, Briggs argues that she has "set forth sufficient evidence that she was qualified for the Executive Assistant position that she held for nearly ten (10) years under several supervisors." (See id. (citing Def.'s Trial Exs. 10-12, 15).) She also states that "[o]ver the course of her eight (8) year career at Defendant prior to reporting to Dr. Wu, Plaintiff had never been written up for any reason at Defendant, been given any written discipline or suspended, and had never been placed on any sort of performance improvement plan." (Id. at 30 (citing 07/18/2018 AM, Trial Tr. 22:24-23:13).) She points out that "[a]t trial, Defendant did not call any witnesses to testify that Plaintiff's performance prior to working for Dr. Wu was deficient in any way. (Id. ) In response to Temple's performance evaluation evidence, Briggs asserts:
At no point during Plaintiff's career at Defendant did she receive an annual evaluation that stated that she failed to meet the overall expectations of the job. Rather, each annual performance evaluation that Plaintiff received from Defendant throughout her employment resulted in a score that fell between a 2.0 ("Performance meets minimal expectations and standards") and a 3.0 ("Performance meets job expectations. GOOD SOLID PERFORMANCE."). See Defendant's Trial Exhibits 10-17. With regard to specific goals/projects and competencies upon which Plaintiff was assessed, Plaintiff often received a 3.5 or the full 4.0 score (Performance consistently far exceeds expectations) and never once received a 1.0 score ("Performance consistently fails to meet minimal expectations") before Dr. Wu for any skill or goal/project or competency.
(Id. at 30 (citing Def.'s Trial Exs. 10-12, 15).)
Regarding Temple's argument that Briggs admitted to the errors and deficiencies articulated in the warnings and discipline that led to the end of her employment, Briggs adamantly disagrees, stating that she "vehemently denied the two (2) instances described in her April 1, 2014 termination letter." (Id. at 31 (citing Pl.'s Trial Ex. 45 (termination letter); 07/17/2018 AM, Trial Tr. 93:7-94:9 (denying that she booked the hotel for the wrong dates); 99:12-101:16 (denying that she had access to the requisite computer system); Def.'s Trial Ex. 71).)
Examining the record as a whole, we conclude that Briggs has put forth substantial evidence that she was qualified for the Executive Assistant position. "[C]ase law requires that a court consider a plaintiff's 'objective job qualifications,' and should leave 'the question of whether an employee possesses a subjective quality, such as leadership or management skill ... to the later stage of the McDonnell Douglas analysis.' " Howell v. Millersville Univ. of Pa. , 283 F.Supp.3d 309, 323 (E.D. Pa. 2017), aff'd , No. 17-3538, --- Fed.Appx. ----, 2018 WL 4236592 (3d Cir. Sept. 6, 2018) (quoting DiFrancesco v. A-G Adm's, Inc. , No. 13-4284, 2014 WL 4379114, at *7 (E.D. Pa. Sept. 4, 2014), aff'd , 625 F. App'x 95 (3d Cir. 2015) ). "When a defendant's argument regarding a plaintiff's qualifications is intertwined with its assertion of a legitimate reason for the employment action, courts should be careful not to collapse the entire McDonnell Douglas analysis in [the] first step." Id. (quoting DiFrancesco , 2014 WL 4379114, at *7 ). Since Temple's contention that Briggs' lack of qualifications is intertwined with its legitimate nondiscriminatory reasons regarding Briggs' job-related issues, and Briggs presented evidence refuting both Temple's reasons and her record of deficient performance, this argument will be addressed later. Nevertheless, both Temple's assessment that Briggs was minimally qualified for the Executive Assistant position, and her nearly ten years of experience employed in the position, provide a legally sufficient evidentiary basis for a reasonable jury to find that she was qualified for the Executive Assistant position. See id. at 324 ("Therefore, because the University found [plaintiff] minimally qualified for his position, the Court finds that [plaintiff] can establish the second element of the prima facie case.").
b. Adverse Employment Action
"To satisfy the third element of the prima facie case, an employee must allege an adverse employment action sufficiently severe to have altered the employee's compensation, terms, conditions, or privileges of employment, or to have deprived or tended to deprive him of employment opportunities or otherwise adversely affected his status as an employee." Id. (citations omitted). "The plaintiff does not have to show economic or tangible discrimination, but at the same time, not every insult, slight, or unpleasantness gives rise to a valid claim." Id. (citation omitted).
Temple argues that Briggs did not suffer an adverse employment action because she resigned in lieu of termination. (Def.'s Mem. Law Supp. at 8-9.) Briggs responds that "[Temple] advances this argument despite the uncontroverted fact that on April 1, 2014, [it] handed Plaintiff a letter stating, 'Effective the end of the day today, your employment at Temple University is being terminated .' " (Pl.'s Br. Opp'n 32 (citing Pl.'s Trial Ex. 45) (emphasis in original).) She goes on to state:
Plaintiff did explain that she submitted a resignation email two (2) days later under duress. However, regardless, the end result was the same-under no circumstances was Plaintiff going to be allowed to remain an employee of Defendant, and the involuntary end of her employment was a decision that Defendant made. 07/16/2018 AM, Trial Tr. 61:12-22 (Wacker) ("[S]he would have been terminated involuntarily."); 07/18/2018 AM, Trial Tr. 54:8-10 (Walton) ("Her staying there was not an option."). Under these circumstances, it is absurd to argue that Plaintiff did not suffer an adverse employment action at the hands of Defendant. She was fired.
(Id. )
Here, there is no doubt that Briggs presented a legally sufficient evidentiary basis for a reasonable jury to find that she suffered an adverse employment action. In light of the clear language contained in the April 1, 2014 letter stating that, "Effective the end of the day today, your employment at Temple University is being terminated," and the testimony of decision-makers, Wacker and Walton, regarding the termination of Briggs' employment, there was legally sufficient evidence for a jury to find that the third prong of the prima facie case was proven by a preponderance of the evidence. Moreover, we point out that Temple itself argues in the instant Motion that "age was not the "but-for " cause of [its] decision to end Ms. Briggs' employment ." (Def.'s Mem. Law Supp. 6 (emphasis added).) Given the facts of this case, and what evidence and testimony were presented to the jury, we flatly reject Temple's blanket assertion that Briggs' resignation forecloses any argument that she suffered an adverse employment action.
c. Plaintiff was Replaced by Another Employee Sufficiently Younger to Support an Inference of Discriminatory Animus
The fourth element of a prima facie case of age discrimination under the ADEA is that plaintiff was "replaced by a sufficiently younger employee to support an inference of age discrimination." Burton v. Teleflex Inc. , 707 F.3d 417, 426 (3d Cir. 2013) (citing Smith , 589 F.3d at 689 ); see also Willis , 808 F.3d at 644 ; Giuliani v. Polysciences, Inc. , 275 F.Supp.3d 564, 576 (E.D. Pa. 2017) ; Cridland , 929 F.Supp.2d at 385.
With respect to what age differential will be considered sufficient as a matter of law (i.e., sufficiently younger), the United States Court of Appeals for the Third Circuit ["Third Circuit"] has stated that "there is no particular age difference that must be shown, but while different courts have held ... that a five year difference can be sufficient, ... a one year difference cannot."
DeCicco v. Mid-Atl. Healthcare, LLC , 275 F.Supp.3d 546, 554 (E.D. Pa. 2017) (quoting Showalter v. Univ. of Pittsburgh Med. Ctr. , 190 F.3d 231, 236 (3d Cir. 1999) ); see also Carter v. Mid-Atl. Healthcare, LLC , 228 F.Supp.3d 495, 503 (E.D. Pa. 2017) ("[S]everal other decisions within this circuit have concluded that an age differential of less than five years is insufficient-as a matter of law-to establish the final element of a prima facie case of age discrimination."). Here, the thirteen-year age difference between fifty-nine-year-old Briggs and her forty-six-year-old replacement, Marilyn Grandshaw, is sufficient. (07/16/2018 PM, Trial Tr. 38:21-39:3; 07/17/2018 AM, Trial Tr. 114:20-115:3.)
Nevertheless, Temple argues that there is insufficient evidence to support an inference of discriminatory animus; that is, whether Temple's decisions regarding Briggs resulted from age (or any other) animus. (Def.'s Mem. Law Supp. 9.) Specifically, it asserts:
Ms. Briggs premised her age discrimination claim on: (1) Dr. Wu once commented about women in China retiring at 55, (2) Temple disciplined Hailey King, a younger female employee, less severely than Ms. Briggs, and (3) Temple reassigned some of Ms. Briggs' job duties to female student workers when Ms. Briggs relocated to the tenth floor. This paucity of evidence fails to prove that any of Temple's decisions made regarding Ms. Briggs resulted from age (or any other) animus.
(Id. )
Taking all of the pieces of evidence into account and viewing them in totality, Briggs counters Temple's arguments by stressing that there was sufficient evidence for the jury to conclude that the circumstances surrounding the termination give rise to an inference of discrimination. (Pl.'s Br. Opp'n 33-35.) She sets forth that "Dr. Wu exhibited his age discriminatory bias against older female workers by telling Plaintiff-the day before her 57th birthday-that in his home country, women of Plaintiff's age are 'put out to pasture.' " (Id. ) Acknowledging that the comment by Wu, who was a decision-maker in Briggs' termination, was in November 2011, well before the end of Briggs' employment, Briggs argues that the jury was permitted to infer from his unsolicited comment, and his overall demeanor and credibility, what he meant when he said it. (Id. at 33 (citing Abrams v. Lightolier, Inc. , 50 F.3d 1204, 1215 (3d Cir. 1995) ("[D]iscriminatory comments made by non-decision-makers, or statements temporally remote from the decision at issue, may properly be used to build a circumstantial case of discrimination.") ); see also Doe v. C.A.R.S. Prot. Plus, Inc. , 527 F.3d 358, 368 (3d Cir. 2008), order clarified , 543 F.3d 178 (3d Cir. 2008) (observing that "stray remarks by decision-makers, which were unrelated to the decision-making process ... could provide background evidence that may be critical to a jury's determination of whether the decision-maker was more likely than not acting out of a discriminatory motive").
Additionally, Briggs argues that she "explained on numerous occasions that her job responsibilities as Executive Assistant were being taken away from her and given to younger workers." (Id. at 34 (citing Pl.'s Trial Exs. 7, 26, 38).) She goes on to state:
Moreover, the evidence showed that Dr. Wu inconsistently applied discipline to his subordinates in favor of the younger worker. At the same time that Plaintiff received written discipline for over-sleeping one (1) time, Ms. King-who is undisputedly substantially younger than Plaintiff-was a no call/no show for three (3) straight days. 07/17/2018 AM, Trial Tr. 81:13-82:2. Dr. Wu admitted that Ms. King did not show up to work for three (3) days, never called in, and never told anybody where she was. Nevertheless, he did not issue Ms. King any written discipline. Id. at 83:20-24; see also 07/18/2018 PM, Trial Tr. 33:18-20 ("I remember that Hailey King was the individual with whom she was comparing herself and saying that her discipline was unfair.")
(Id. )
According to Briggs, she submitted evidence that Wu's decision to take job duties from her and to give them to younger student workers constituted evidence of his age bias and his desire to push her out of the workforce. (Id. at 34 n.6.) She also asserts that "viewing the facts and inferences in the light most favorable to Plaintiff, it is clear that Dr. Wu's treatment of Plaintiff was outrageous and targeted. Throughout her reporting relationship to Dr. Wu, Plaintiff would be singled out and subjected to arbitrary yelling, degradation, and public humiliation by Dr. Wu." (Id. (citing Pl.'s Trial Exs. 9, 13, 33).)
Since Briggs presented at trial that it was uncontroverted that she was replaced by a person significantly younger, and in light of the other aforementioned arguments and evidence adduced at trail regarding her January 20, 2014 discipline and April 1, 2014 discharge, we cannot find, as Temple argues, that she presented no evidence sufficient to establish an inference of discrimination. We find that Briggs presented a legally sufficient evidentiary basis for a reasonable jury to find that she satisfied the fourth prong of her prima facie case of age discrimination.
2. Pretext
Briggs has successfully established a prima facie case creating an inference of discrimination; therefore, the burden shifts to Temple to "articulate a legitimate nondiscriminatory reason for the adverse employment action." Willis , 808 F.3d at 644 (citations omitted). There is no question that Temple provided evidence that its decisions were made for legitimate nondiscriminatory reasons; namely, it disciplined Briggs and offered her the option to resign in lieu of termination due to her repeated behavioral and job performance issues. (Def.'s Mem. Law Supp. 15.) If the employer satisfies this second step, the burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the employer's proffered legitimate, nondiscriminatory reason was pretextual. Willis , 808 F.3d at 644 (citation omitted).
For Briggs to meet her burden of proving pretext, she must submit "evidence that allows a fact finder to either (1) disbelieve or discredit the employer's justification; or (2) believe discrimination was more likely than not a 'but-for' cause for the adverse employment action." Abels v. DISH Network Serv., LLC, 507 F. App'x 179, 183 (3d Cir. 2012) (citing Fuentes v. Perskie , 32 F.3d 759, 764 (3d Cir. 1994) ). "Regardless of the method, the plaintiff's evidence must allow a reasonable jury to find, by a preponderance of the evidence, that age discrimination was a 'but for' cause of the adverse employment action." Id. (citing Gross , 557 U.S. at 177-78, 129 S.Ct. 2343 ; Smith , 589 F.3d at 691 ).
Regarding the first prong, in order to discredit the employer's proffered reason, a plaintiff:
cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.
Andersen v. Mack Trucks, Inc. , 118 F.Supp.3d 723, 741 (E.D. Pa. 2015), aff'd , 647 F. App'x 130 (3d Cir. 2016) (quoting Fuentes, 32 F.3d at 765 ). Regarding the second prong, "a plaintiff must provide evidence that allows the fact finder to infer that discrimination was 'the "but-for" cause of the employer's adverse decision.' " Id. (citations omitted) (quoting Gross , 557 U.S. at 176, 129 S.Ct. 2343 ).
Temple argues that Briggs failed to prove that its legitimate non-discriminatory reason for its actions was a pretext for discrimination. (Def.'s Mem. Law Supp. 15-19.) It explains that it is entitled to judgment as a matter of law because:
Given Temple's legitimate, non-discriminatory reason, Ms. Briggs had to adduce evidence from which the jury either reasonably could (a) disbelieve Temple's articulated legitimate reason; or (b) believe that an invidious discriminatory reason was more likely than not the "but-for' cause of Temple University's action. She did neither. Evidence of disparate treatment is fundamental to the adequacy of a verdict in a discrimination case. Without such evidence, a verdict cannot stand. Ms. Briggs' presented no evidence of discriminatory animus and, thus, showed no evidence of disparate treatment.
(Id. (citing McGrath v. Lumbermens Merchandising Corp. , 851 F.Supp.2d 855, 860 (E.D. Pa. 2012) (citing Hodczak v. Latrobe Specialty Steel Co. , 451 F. App'x 238, 241-42 (3d Cir. 2011) as reflecting the modification to Fuentes v. Perskie , 32 F.3d 759 (3d Cir. 1994) and its progeny - from "motivating or determinative cause" to "but-for cause" - because of Gross , 557 U.S. 167, 129 S.Ct. 2343 ) ).)
We conclude that Briggs provided sufficient evidence from which a jury could reasonably infer that Temple's proffered reason is pretext for discrimination. That is, Briggs produced sufficient evidence supporting an inference that her age had a "determinative influence" on Temple's decision; she did not merely show that her age was a factor motivating Temple's decisions. "The prima facie case and pretext inquiries often overlap." Doe , 527 F.3d at 370. Therefore, "evidence supporting the prima facie case is often helpful in the pretext stage, and nothing about the McDonnell Douglas formula requires [the Court] to ration the evidence between one stage or the other." Id. (citations omitted).
Briggs relies on the evidence set forth above in support of her satisfaction of the fourth prong of the prima facie case, as well as numerous other facts set forth below, that could lead a reasonable jury to find that she established pretext. For instance, Briggs focuses on the termination letter handed to her on April 1, 2014, which sets forth the following two alleged incidents that resulted in her receipt of C-level discipline and termination: (1) her alleged intentional failure to submit Dr. Wu's travel reimbursements; and (2) her alleged failure to book a hotel for a speaker for the correct nights. (Pl.'s Br. Opp'n 36.) Regarding the travel reimbursement issue, Briggs argues that:
[she] testified that one of her job duties as an Executive Assistant had been to submit her supervisor's travel expenses. She would utilize Defendant's internal system, called Concur, after she was given access and permission to allocate the expenses to a particular grant number. On March 20, 2014, at 3:53pm, Dr. Wu sent an email to Drew DiMeo stating that Defendant had not yet administratively inputted Dr. Wu's grant number into his account. At 3:56pm that same day, Mr. DiMeo emailed Plaintiff, telling her to submit the travel reimbursement into the system by 5:00pm that day. At 5:27pm that day, Plaintiff sent Mr. DiMeo a lengthy email explaining that she still did not have access to the grant number in the system, and therefore she did not have the requisite "permission" on the computer to submit the report. Plaintiff further identified what she believed was the technical issue within the system that denied her the access she needed to complete the project. Mr. DiMeo did not respond to Plaintiff's last email. Plaintiff stayed at work, however, and attempted to remedy the problem herself but she was unable to do so without the required computer access.
Defendant argued at trial that Plaintiff did in fact have the required access, and instead intentionally failed to submit the expense report on Dr. Wu's behalf. Defendant's argument fell flat, as it was unable to produce any credible testimony on what occurred or any documents in support of its position (except for Defendant's Trial Exhibit 71, which is consistent with Plaintiff's position that she was unable to access the account through no fault of her own). HR Director Walton could not explain whether she did or did not receive any documentation showing that Plaintiff did in fact have access to the account that night. And Dr. Wu testified that Mr. DiMeo obtained written documentation and that he has even seen it, but no such document was ever presented to the jury. Defendant did not call Mr. DiMeo as a witness in this case.
(Id. at 36-37 (citations omitted).) Thus, Briggs asserts, and we agree, that the jury had ample evidence on this issue to conclude that Temple's stated reason for terminating her employment cannot be believed. (Id. at 37.) Also, we note that Temple's lack of evidence, which includes documentation that was testified to, but never presented, and its decision not to have DiMeo testify, amounted to a weak defense concerning the issue at hand that the jury may have also taken into account in reaching its decision.
Regarding Briggs' alleged failure to book a hotel room for the correct nights, she testified that "Dr. Wu himself asked her to change the reservations, and she followed his instructions appropriately" and "Dr. Wu testified that he does not even recall this incident at all-even though it's specifically delineated in the termination letter and Dr. Wu was an individual who made the decision to terminate Plaintiff's employment." (Id. at 37-38 (citing 07/17/2018 AM, Trial Tr. 93:16-23; 07/16/2018 PM, Trial Tr. 91:23-92:7).) Thus, Briggs again asserts, and we agree, that the jury had ample evidence on this issue to conclude that Temple's stated reason for terminating her employment cannot be believed.
In further support of her claim that Temple's stated reasons for her termination were pure pretext, Briggs also argues:
Plaintiff highlighted Defendant's policies which state that two (2) C-level disciplines in one (1) year will result in termination. Plaintiff received her first-ever C-level discipline on March 26, 2013. Then, almost exactly one-year to the day, Defendant issued Plaintiff another C-level discipline for the two (2) alleged incidents set forth above. Plaintiff argued that this is not a coincidence-Defendant wanted Plaintiff out, and dug up anything they could on Plaintiff as the one-year mark was approaching so that the termination would appear to be non-discriminatory and non-retaliatory. Defendant denied this, of course. However, the jury did not believe Defendant that its articulated reasons were the real reasons and found in favor of Plaintiff.
(Id. at 38 (citations omitted).) Briggs goes on to argue that:
Moreover, the jury saw and heard evidence that the previous disciplines given to Plaintiff during her tenure under Dr. Wu were entirely unwarranted and pretextual. For example, not one witness for Defendant could explain a non-retaliatory reason for why Plaintiff was given a written discipline on November 9, 2011, the day Dr. Wu stated to Plaintiff that women her age in China are "put out to pasture" and Plaintiff responded in opposition, "With all due respect, we're in America and not in China." Additionally, the jury heard that Dr. Wu issued Plaintiff a written discipline for oversleeping on one (1) occasion by three (3) hours, but her substantially younger co-worker, Ms. King, was not given any discipline for not calling out or showing up to work for three (3) days straight. Finally, despite Dr. Wu's testimony that Plaintiff made "hundreds" of mistakes, there was simply no evidence to back up that assertion.
(Id. (citation omitted).)
Additionally, Briggs summarized evidence of Temple's age-based discrimination and animus against her as follows :
1. On November 9, 2011, Dr. Wu approached Plaintiff, who was turning fifty-seven (57) years old the next day, and asked her how old she was going to be. Plaintiff told him that she was turning fifty-seven (57). Dr. Wu responded with words to the effect of, "You know, in China, we put women out to pasture at 55." 07/17/2018 AM, Trial Tr. 31: 1-13.
2. Dr. Wu testified that he knew that Plaintiff was in her [fifties]. 07/16/2018 PM, Trial Tr. 60:5-12. He further testified that he knows that in China there is a mandatory retirement law that requires white collar, professional women (such as Plaintiff) to retire at the age of fifty-five (55). Id. at 54:20-55:21. According to Dr. Wu, sometimes women in China retire at the age of forty (40), and his own sister in China retired while she was in her [thirties]. Id. at 56:4-57:21.
3. Plaintiff explained in subsequent emails to HR, EOC, and Defendant's in-house counsel-and testified to the same at trial-that she was being bullied and singled out by Dr. Wu. See, e.g. , Pl.'s Trial Ex. 9 ("No other staff member is required to meet daily for a dose of public humiliation and my request to move the meetings to a private location was flat out denied."); Pl.'s Trial Ex. 13 ("On numerous occasions, Jie Wu has mentioned that the professional lives of women my age (58) in China are over and I wrote it off to cultural differences. It was when he would make a comment that referenced my age and failure to attain the financial stability to be able to travel when I felt defensive and offended ...."); Pl.'s Trial Ex. 33 ("[F]ive days out of the week I a[m] battered emotionally, insulted, ignore[d], yelled at in front of peers and the department scapegoat. I am often accused for the mistakes and the misconduct of others.").
4. Plaintiff explained on numerous occasions that her job responsibilities as Executive Assistant were being taken away from her and given to younger workers. See, e.g. , Pl.'s Trial Ex. 7 ("Regarding our discussion related to Dr. Wu's comments about my age, I am forwarding an email that was sent to a student worker in our office about yet another of my job functions assigned to her .... Additionally, last week, I was informed in front of Mary Kate that she would be handling all his travel arrangements, too."); Pl.'s Trial Ex. 26 ("I am relegated to making coffee, secretarial functions even though I have never been a secretary. Young female student workers occupy my former office area where they carry out my job functions while I was re-located from the third floor of Wachman to the 10th floor of Camell."); Pl.'s Trial Ex. 38 ("I want to discuss changes made to my job description and responsibilities that have been given to Hailey King, Jackie Harriz's replacement. My essential functions have been diminished to elementary clerical functions. I am performing entry level data entry tasks, while one student worker and Haley [sic] King are performing the functions of my job description.")
5. At the same time that Plaintiff received written discipline for over-sleeping one (1) time, Ms. King-who is undisputedly substantially younger than Plaintiff-was a no call/no show for three (3) straight days. Dr. Wu admitted that Ms. King did not show up to work for three (3) days, never called in, and never told anybody where she was. Nevertheless, he did not issue Ms. King any written discipline.
(Id. at 24-25.)
Considering the whole record, and viewing the evidence in the light most favorable to Briggs, we find that she has produced sufficient evidence to show that Temple's stated reasons for terminating her employment were pretextual. Acknowledging that it is Briggs' b