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A federal jury has awarded $6.2 million to two older employees terminated in a downsizing.

The jury not only found that the employer, PQ Corp., engaged in “willful” age discrimination, triggering liquidated damages under federal law, it also tacked on emotional distress damages under state law.

In convincing the jury that his clients were terminated because of their age, winning attorney Scott B. Goldshaw of Salman Goldshaw in Philadelphia succeeded where he had failed only four months earlier, when the first trial on virtually the same evidence ended with a hung jury.

“Both sides presented a sharper case based on having gone through the first trial,” said Goldshaw.

He noted one change on the defense side – an expert was hired to testify on damages in the second trial.

Caroline Luz, spokesperson for defendant PQ Corp., said in a statement that the company is “disappointed with the verdict and disagrees strongly with the jury’s decision” and that it intends to file post-trial motions and an appeal.

RIF in R&D

The plaintiffs, Bonnie Marcus, 60, and Roman Wypart, 56, were scientists in a chemical company’s research and development department.

The two employees were terminated in a reduction in force in 2005, shortly after the company was sold to a new owner.

The key to Goldshaw’s case was to show that older workers were singled out, allowing the jury to draw the inference of age discrimination.

“Everyone targeted for termination was 55 or older – with no exceptions. In all those cases, the job duties of the terminated employees were assumed by younger workers,” Goldshaw said.

To buttress that claim, Goldshaw had a statistician testify that even after controlling for the company’s explanations, the terminations significantly correlated with age.

Three other employees were downsized in the RIF, and two employees took severance packages. All eight employees were between 55 and 69 years old.

The company claimed that the two employees who took severance packages left voluntarily.

But Goldshaw called them to testify at trial.

“They both said their managers approached them, suggesting they go to human resources, and that resulted in a severance package. One testified that she would have rather had the job than severance but she felt the job was not available. We contended they were pushed out,” he said.

Shifting reasons

Having already tried the case once to a jury, Goldshaw was tipped off as to the explanation the defendant would offer for the firings.

During the week-long trial, Goldshaw hammered his theme that the company kept changing its reasons for firing his clients.

“The company gave at least three different explanations. We attacked each one of them to show they didn’t hold water,” said Goldshaw.

The first reason the company put forth to the EEOC for the terminations was that the plaintiffs’ group, known as the corporate development group, was eliminated.

But Goldshaw showed at trial that no one in the corporate development group under age 55 was fired.

The second reason advanced by the company, said Goldshaw, was that the plaintiffs’ projects were phased out.

But Goldshaw showed that younger employees who were assigned to the same projects as the plaintiffs weren’t fired.

He also introduced testimony from one of the company’s own witnesses that the decision over which projects to continue were not even made until after plaintiffs were terminated.

“We blew [the statement] up on a posterboard to show it as an exhibit. In the first trial, we described it, but it was not as easily seen by the jury,” said Goldshaw.

Third, the company contended that the funding source for the plaintiffs’ jobs had dried up, Goldshaw said.

But he dismantled that argument by showing that his clients’ jobs were not entirely funded by that source, and that younger employees funded by the same source were kept on.

Although the company argued that its explanations were all part of the same reason, not three separate stories, Goldshaw recalled telling the jury, “We all know that if you tell the truth, you don’t have to change your story. If you did nothing wrong, you don’t have to lie to cover up what you did.”

‘Younger blood’

Damaging age-related statements attributed to one of the alleged decision-makers also bolstered the plaintiffs’ case.

Under Goldshaw’s theory of the case, three decision-makers were involved in firing his clients – the head of the chemicals division, Michael Imbriani, and two managers who reported to him.

One of those managers, Rosalyn Kutchins, who is still with the company, testified that two years before the plaintiffs were terminated, Imbriani, who was also the EEO compliance officer for the division, ordered her to demote an employee based on age.

“He told her to get rid of him and replace him with ‘new, younger blood,” said Goldshaw.

The manager filed a complaint against Imbriani with both human resources and the legal department and was chastised – which she attributed to having complained.

Around the same time she was told by the company’s lawyer that there was an active program seeking “younger individuals,” she testified.

After the plaintiffs were terminated, Kutchins’ job was changed, and she testified that it “crossed my mind” that the change – which she considered a demotion – was connected to the fact that she had complained about Imbriani earlier.

“We contended that even after the RIF, she was still afraid. … She had a motive to choose older workers [to terminate], having understood that that’s what [the manager] wanted,” Goldshaw said.

At the second trial, the jury needed only three hours to decide what an earlier jury spent two days deliberating about before coming up empty – that the plaintiffs’ terminations were based on age.

The jury awarded Marcus $2.8 million and Wypart $2.6 million in back pay, front pay and emotional distress damages. With liquidated damages equal to the amount of back pay under the Age Discrimination in Employment Act, the total award comes to $6.2 million.

Plaintiffs’ attorney: Scott B. Goldshaw of Salmanson Goldshaw P.C. in Philadelphia.

Defense attorney: Elizabeth A. Malloy of Buchanan Ingersoll & Rooney in Philadelphia.

The case: Marcus v. PQ Corp.; November 10, 2009; U.S. District Court for the Eastern District of Pennsylvania; Judge John Fullam.

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