Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`ALISON RAY,
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`Plaintiff,
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`v.
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`AT&T MOBILITY SERVICES,
`LLC,
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`Defendant.
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`CIVIL ACTION
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`No. 18-3303
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`Timothy R. Rice
`U.S. Magistrate Judge
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`MEMORANDUM OPINION
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` February 22, 2022
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`Trials inevitably involve close calls. In those cases, we empower juries to resolve material
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`factual disputes, arming them with broad discretion to draw reasonable inferences from the
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`evidence and to decide which witnesses to believe. This case featured such a dispute.
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`Defendant AT&T Mobility Services, which hotly contested plaintiff Alison Ray’s age
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`discrimination claim, now seeks to disturb a jury verdict that overwhelmingly rejected AT&T’s
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`view of the evidence. If the jury had believed AT&T’s witnesses, especially senior managers Judy
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`Cavalieri and Jennifer Van Buskirk, it could have returned a defense verdict. And that verdict
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`would have stood. Instead, the jury rejected AT&T’s version and then went a step further. It
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`unanimously found that AT&T’s age discrimination not only drove the decision to fire Ray, but
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`that it acted willfully, that is, AT&T knew, or recklessly disregarded whether, firing Ray was
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`unlawful. The jury’s verdict constituted a powerful condemnation of AT&T’s treatment of Ray,
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`and repudiated AT&T’s claim that her firing was a business decision unrelated to age. Since the
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`trial featured no legal error, AT&T now resorts to disputing evidentiary inferences and credibility
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 2 of 24
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`determinations that informed the jury’s verdict, along with challenging five discretionary
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`evidentiary rulings. Its motion is meritless.
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`FACTUAL BACKGROUND AND PROCEDURAL HISTORY
`I.
`The underlying facts are well known to both parties and have already been discussed at
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`length. See generally Mem. Op. Denying Summary Judgment (doc. 111). Relevant to AT&T’s
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`motion, the trial focused on AT&T’s selection of Ray, age 49, for surplus and ultimate termination.
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`Ray alleged that AT&T violated the Age Discrimination in Employment Act (“ADEA”) by: (1)
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`placing her on surplus status and terminating her employment because of her age, and (2) failing
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`to comply with the Older Workers Benefit Protection Act (“OWBPA”). See Amend. Compl. (doc.
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`48). In January of 2020, I denied AT&T’s motion for summary judgment, and the case proceeded
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`to trial in November of 2021.1
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`Before trial, AT&T moved to exclude, inter alia, the ADEA Listing for Surplus 17-350.
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`See Motion in Limine (doc. 117). AT&T argued that the ADEA Listing was irrelevant under Fed.
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`R. Evid. 401. Id. I denied AT&T’s motion because the ADEA Listing, which includes statistical
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`information about the positions and ages of the individuals chosen for the Surplus, was “relevant
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`to whether . . . Ray was chosen for the Surplus due to her age. See Sept. 22, 2021 Order (doc.
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`126), ¶ 1 (citing Abrams v. Lightolier Inc., 50 F.3d 1204, 1217 (3d Cir. 1995)).
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`Following a final pretrial conference on October 26, 2022, I made additional evidentiary
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`rulings, to include:
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`• Allowing evidence related to a 2016 reduction-in-force “for the limited purpose of
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`showing that AT&T began a planned effort of eliminating the jobs of older
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`1
`Ray’s OWBPA claim was resolved, in her favor, prior to trial. See Apr. 28, 2020 Order
`(doc. 88), ¶ 1.
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`2
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 3 of 24
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`employees in this reduction-in-force that took place 18 months before the
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`reduction-in-force during which Ms. Ray was selected.” Oct. 28, 2021 Order (doc.
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`139), ¶ 3 (citing Fed. R. Evid. 404(b)(2); United States v. Green, 617 F.3d 233, 250
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`(3d Cir. 2010)). I found, under Fed. R. Evid. 403, that “[t]he probative value [was]
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`not substantially outweighed by the risks of unfair prejudice, jury confusion, or
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`waste of time because it is directly related to the allegations in this case.” Id. I also
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`concluded that a limiting jury instruction, jointly prepared by the parties, would
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`mitigate “any arguable risk of prejudice or confusion.” Id. (citing Fed. R. Evid.
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`105; Green, 617 F.3d at 250). The parties submitted a limiting jury instruction on
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`November 5, 2021. See Proposed Jury Instruction (doc. 141); see also Hearing Tr.
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`Vol. I, 93:2-94:5 (providing limiting instruction to the jury).
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`• Allowing “[n]on-statistical evidence, including charts, showing the number and
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`ages of the employees involved in the 2017 reduction-in-force,” to the extent that
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`the parties do not “present lay statistical evidence regarding those numbers and ages
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`because such evidence has limited probative value and is substantially outweighed
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`by risks of unfair prejudice, misleading the jury, and wasting time.” Oct. 28, 2021
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`Order, ¶ 5 (citing Fed. R. Evid. 403; Int’l Bhd. of Teamsters v. United States, 431
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`U.S. 324, 340 (1977); Gottschall v. Reading Eagle Co., No. 11-4361, 2013 WL
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`961266, at *5 (E.D. Pa. Mar. 12, 2013)).
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`• Allowing AT&T to “cross-examine Ms. Ray about her involvement in rating
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`employees during the 2017 reduction-in-force,” but not “the individual ratings she
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`provided.” Oct. 28, 2021 Order, ¶ 6. Pursuant to Fed. R. Evid. 403, I reasoned that
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`3
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 4 of 24
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`“[a]ny probative value of specific ratings of individuals unrelated to this trial is
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`substantially outweighed by risks of jury confusion and waste of time.” Id.
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`The jury heard from 9 witnesses: David Carlucci, Judy Cavalieri, Ray, Alyson Woodard,
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`Patricia Slocum, Kyle Mundis, Jennifer Van Buskirk, Tiffany Baehman, and Jeffrey Joss. Ray
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`was hired by AT&T in 1994, Hearing Tr. Vol. II, 165:19-21, and held five different positions in
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`the over 23 years:
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`• 1994-1996: Business Development Manager, id. at 163:24-164:2;
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`• 1996-1999: Director of Business Development, id. at 164:2-20;
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`• 1999-2010: Director of Marketing, id. at 164:21-165:15;
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`• 2010-2011: Director of Sales Operations, id. at 166:1-2; and
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`• 2011-2018: Director of Sales, id. at 167:15-19, 200:20-201:2.
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`Ray was notified of her selection for surplus in November 2017, see id. at 68:6-11, and she was
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`fired in January 2018, a few days shy of her 50th birthday, see Hearing Tr. Vol. III, 74:7-11; 102:7-
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`10; id. at Vol. II, 161:24-25; Mot. 12; Resp. Br. 8.
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`Van Buskirk, president of the region in which Ray worked since December 2015, hired
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`Cavalieri in the spring of 2016 to supervise a team of Directors of Sales that included Ray. Hearing
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`Tr. Vol. I, 99:22-101:3; id. at Vol. II, 99:16-100:7; id. at Vol. IV, 17:17-19, 18:24-19:14, 32:21-
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`33:4, P-15. In 2016, Van Buskirk published two LinkedIn articles: (1) discussing AT&T as being
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`“old and stodgy” and endorsing a New York Times article addressing AT&T’s “aging” workforce
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`and a need to reinvent itself, see P-71 & 72; and (2) discussing the benefits of being young in the
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`workforce, see P-73. See also Hearing Tr. Vol. IV, 22:18-29:13; 31:7-32:20. Around the same
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`time, Van Buskirk also sent an email to AT&T leaders, including Cavalieri and Carlucci (a “high[]
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`level” human resources officer, see Hearing Tr. Vol. I, 46:20-23), in which she suggested that
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`changes were necessary to bring “fresh perspective across the business, and re-engage some of our
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`tenured folks in new jobs within [the] AT&T family.” Hearing Tr. Vol. I, 90:15-23 (citing P-13).
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`The jury also heard testimony that there was a 2016 surplus that led to the termination of
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`the oldest Director of Sales in the region. P-12; P-77, Hearing Tr. Vol. IV, 33:15-17; id. at Vol. I,
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`105:19-106:1. Another surplus event took place in 2017, following AT&T’s restructuring of the
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`Ohio/Pennsylvania Market, that led to the surplus and termination of Ray. See Hearing Tr. Vol.
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`I, 66:10-68:25; id. at Vol. III, 54:11-16, 130:23-131:9. The Directors of Sales were lumped
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`together into an affected work group and rated and then ranked accordingly. Id. at Vol. I, 67:12-
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`68:10; id. at Vol. III, 55:12-23, 130:23-131:4; D-39. The two oldest Directors of Sales, one of
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`whom was Ray, were selected for surplus. See id. at Vol. I, 105:19-106:1; id. at Vol. IV, 35:17-
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`21, 45:6-10; P-15; D-21. Ray introduced evidence that the surplus ratings and rankings process
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`included inconsistencies and discrepancies. For example, Danny Perez, part of Ray’s affected
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`work group, vacated his position as Director of Sales during the surplus process but before surplus
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`notifications went out. Hearing Tr. Vol. II, 55:11-60:8. He was replaced by Linda Gill, who was
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`in her late twenties and was not part of Ray’s affected work group, despite AT&T policies dictating
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`that, if there was a vacancy, it should have gone to Ray. Id.; see also id. at Vol. I, 80:10-82:17,
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`83:9-17; id. at Vol. II, 57:20-58:6; P-77; D-21; D-39.
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`On November 19, 2021, following four days of trial, the jury returned a verdict in favor of
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`Ray. Verdict Slip (doc. 156). The jury found by a preponderance of the evidence that: (1) Ray’s
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`age was a determinative factor in AT&T’s decision to select her during its reduction in
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`force/surplus and terminate her employment, and (2) AT&T either knew or showed reckless
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`disregard for whether its selection of Ray during the reduction in force/surplus and termination of
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`her employment was prohibited by law. Id.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 6 of 24
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`AT&T challenges two rulings that I made at trial.
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`• Limiting Cavalieri’s Testimony Concerning Kyle Mundis’s Field Report on
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`Ray’s Employee Engagement Scores: Cavalieri testified that Mundis, who works
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`in human resources, was sent into the “field” to solicit feedback from Ray’s
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`subordinates in an effort to better understand her decline in employment
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`engagement scores. Hearing Tr. Vol. II, 122:3-16, 127:9-128:15. AT&T sought to
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`question Cavalieri on what Mundis reported to her that he learned in the field. Id.
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`at 128:19-22. Although I sustained Ray’s hearsay objection to the contents of third-
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`hand reports given to Mundis, I permitted AT&T to ask Cavalieri what she did after
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`receiving the information from Mundis. Id. at 128:23-130:2 (Court: “[L]et’s avoid
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`it by just saying after the conversation, what action did you take based on what he
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`told you?”).
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`• Finding as Unnecessary a Curative Jury Instruction Regarding the Absence
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`of Documents Concerning the Transfer of Danny Perez and Linda Gill:
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`Following the close of its case, AT&T requested a curative jury instruction that
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`addressed the absence of documents pertaining to the transfers of Perez and Gill.
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`AT&T argued that any documents pertaining to the transfers were not subject to
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`discovery, and, accordingly, a cautionary instruction was necessary to avoid any
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`unfair inference from Ray’s counsel’s questioning of witnesses that AT&T “has
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`withheld something.” Hearing Tr. Vol. IV, 134:7-12. I disagreed, concluding that
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`Ray had not invited the jury to draw any unfair inference. Id. at 134:21-25 (“I
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`understand the issue. I think your concerns are misplaced, Mr. Gage. I did not get
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 7 of 24
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`that impression at all. I don’t think the jury did. And I don't think there is any need
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`for an instruction.”).
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`II. LEGAL STANDARD
`“It is only on rare instances that a jury’s verdict in a civil case should be overturned.” Pitts
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`v. State, 646 F.3d 151, 152 (3d Cir. 2011). Following a losing verdict, a party may move for
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`judgment as a matter of law pursuant to Rule 50(b), if the issues were properly preserved in
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`accordance with a Rule 50(a) motion. See Fed. R. Civ. P. 50; Lightning Lube, Inc. v. Witco Corp.,
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`4 F.3d 1153, 1166 (3d Cir. 1993). Judgment as a matter of law “should be granted only if, viewing
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`the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair
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`and reasonable inference, there is insufficient evidence from which a jury reasonably could find
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`liability.” Lightning Lube, Inc., 4 F.3d at 1166 (citing Wittekamp v. Gulf & Western Inc., 991
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`F.2d 1137, 1141 (3d Cir. 1993)); see Pitts, 646 F.3d at 155 (“Only if the record is ‘critically
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`deficient of the minimum quantum of evidence’ upon which a jury could reasonably base its
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`verdict will we affirm a court's grant of judgment as a matter of law.”) (quoting Acumed LLC v.
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`Advanced Surgical Servs., Inc. 561 F.3d 199, 211 (3d Cir. 2009)). “In determining whether the
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`evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the
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`credibility of witnesses, or substitute its version of the facts for the jury’s version.” Lightning
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`Lube, Inc., 4 F.3d at 1166 (citing Fineman v. Armstrong World Indus., Inc. 980 F.2d 171, 190 (3d
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`Cir. 1992)); see Eshelman v. Agere Sys., Inc., 397 F. Supp. 2d 557, 562 (E.D. Pa. 2005) (“Because
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`a jury’s verdict merits judicial deference, only a critical deficiency of evidence justifies reversal.”)
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`(internal citation omitted).
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`A Rule 50(b) movant may “include an alternative or joint request for a new trial under Rule
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`59.” Fed. R. Civ. P. 50(b); see Wright v. Cacciutti, No. 12-1682, 2015 WL 3654553, at *3 (M.D.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 8 of 24
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`Pa. June 11, 2015). The trial court has discretion to grant a new trial “for any reason for which a
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`new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1);
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`see State Farm Mut. Auto. Ins. Co. v. Lincow, 715 F. Supp. 2d 617, 626-27 (E.D. Pa. 2010).
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`“When the basis of the motion involves a matter within the trial court’s sound discretion, such as
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`the court’s evidentiary rulings or points for charge to the jury, the trial court has wide latitude in
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`deciding the motion.”2 Burlington v. News Corp., No. 09-1908, 2016 WL 1221426, at *3 (E.D.
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`Pa. Mar. 29, 2016); see also Mathis v. Borough of Old Forge, No. 08-1240, 2021 WL 639018, at
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`*4 (M.D. Pa. Feb. 18, 2021) (noting the same “broad” standard applies when the motion is
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`grounded upon prejudicial statements by counsel) (citing Klein v. Hollings, 992 F.2d 1285, 1289-
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`90 (3d Cir. 1993)). In deciding whether a new trial is warranted, “the court must determine: (1)
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`‘whether an error was in fact made;’ and (2) ‘whether that error was so prejudicial that refusal to
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`grant a new trial would be inconsistent with substantial justice.’” Pierce v. City of Phila., 391 F.
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`Supp. 3d 419, 432 (E.D. Pa. 2019) (quoting Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600,
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`601 (E.D. Pa. 1989)). Such motions cannot “be used to relitigate old matters, or to raise arguments
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`2
`As an alternative to granting its motion for judgment as a matter of law based on an
`insufficiency of the evidence, AT&T argues that it is entitled to a new trial pursuant to Rule
`50(b)(2) because evidentiary rulings and a lack of curative jury instructions “resulted in a
`miscarriage of justice.” Mot. 45. I assume that AT&T’s reference to Rule 50(b) incorporates a
`reference to Rule 59, which provides the proper mechanism for AT&T to raise such a request at
`this stage in the proceedings. See Amazon Produce Network, LLC v. NYK Line, 679 F. App’x
`166, 168 (3d Cir. 2017) (“In determining how to construe an ambiguous motion, we have instructed
`courts to focus ‘on the function of the motion, not its caption.’”) (quoting Turner v. Evers, 726
`F.2d 112, 114 (3d Cir. 1984)); see also Lincow, 715 F. Supp. 2d at 626-27. Furthermore, the
`“miscarriage of justice” standard applies where a party’s request for a new trial is based on
`allegations that “the verdict is against the weight of the evidence.” Pierce v. City of Phila., 391 F.
`Supp. 3d 419, 432 (E.D. Pa. 2019). But AT&T does not request a new trial on the ground that the
`jury’s verdict in favor of Ray went against the weight of the evidence; rather, it argues that the
`evidence was insufficient to support the jury’s finding that AT&T discriminated against Ray based
`on age.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 9 of 24
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`or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping
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`Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright and A. Miller, Federal Practice
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`and Procedure § 2810, 127-28 (2d ed. 1995)). I also may not grant a new trial for harmless error.
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`Vandenbraak v. Alfieri, 209 F. App’x 185, 189 (3d Cir. 2006) (citing Fed. R. Civ. P. 61).
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`III. ANALYSIS
`A. The Evidence Was Sufficient for the Jury to Return a Verdict in Favor of
`Ray
`AT&T maintains that the evidence does not support the jury’s conclusions that age was a
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`determinative factor in its selection of Ray for surplus, or, in the alternative, that AT&T willfully
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`or with reckless disregard violated the ADEA. I disagree.
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`1. There Was Sufficient Evidence from Which the Jury Could
`Reasonably Find That Age Was a Determinative Factor in
`AT&T’s Selection of Ray for Surplus
`Ray’s case was premised on three theories: “(1) that AT&T allegedly promoted a culture
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`of bias against older workers; (2) AT&T allegedly failed to follow its own policies in the 2017
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`surplus exercise; and (3) the ratings allegedly were a ‘ruse’ designed to hide age bias.” Mot. 17.
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`AT&T argues that none of these theories are supported by the evidence. Id. It offers the following
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`in support:
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`• Culture of Age Bias:
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`o (1) Van Buskirk’s LinkedIn articles, as well as the New York Times article,
`failed to reasonably show age bias. See Mot. 18-22.
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`o (2) The 2016 time-in-role email exchange failed to reasonably show age
`bias. See id. at 22-23.
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`o (3) Jeffrey Joss’s “Happy Birthday” email failed to reasonably show age
`bias. See id. at 23-24.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 10 of 24
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`o (4) Engagement results by generational cohort failed to reasonably show
`age bias. See id. at 24-25.
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`o (5) AT&T employees wearing jeans in the workplace failed to reasonably
`show age bias. See id. at 25-26.
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`o (6) AT&T employee ages failed to reasonably show age bias. See id. at 26-
`32.
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`• Failure to Follow Policies During the 2017 Surplus:
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`o (1) AT&T’s decision to exclude Woodard from Affected Work Group 12
`was consistent with AT&T’s policies. See id. at 33-34.
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`o (2) The surplus was not a “follow-the-work” surplus, and there was
`“nothing about Gill’s and Perez’s transfers for personal reasons [that]
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`reasonably suggests that age was a determinative factor in Ray’s surplus
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`selection.” See id. at 34-36. The Gill and Perez transfers were a “normal-
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`course-of-business swap.” See id. at 36-38.
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`• Surplus Ratings as a “Ruse”:
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`o (1) Ray is “not competent to express an opinion concerning her relative
`value to the company.” See id. at 38-39.
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`o (2) Cavalieri’s ratings in 2017 were similar to those that she gave during
`the 2016 surplus and consistent with the ratings she gave during the 2016
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`performance review. See id. at 39.
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`o (3) Ray “conceded that she was concerned about being selected for surplus
`in 2017.” See id. at 40.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 11 of 24
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`o (4) The record does not support Ray’s theory that “she should have been
`rated higher because of her longer tenure.” See id. at 40-41.
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`o (5) Ray’s disagreement with Cavalieri’s ratings is, as a matter of law,
`insufficient to prove her claims. See id. at 41.
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`AT&T asks me to reweigh the evidence, determine the credibility of witnesses, and
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`substitute AT&T’s version of the facts for the jury’s version. AT&T not only discounts that the
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`jury rejected AT&T’s version of the facts and theory of the case but suggests that I ignore the
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`jury’s verdict and conduct a new trial. See Lightning Lube, Inc., 4 F.3d at 1166.
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`Given the witness testimony and documents presented at trial, the record in no way is
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`“critically deficient of the minimum quantum of evidence” upon which the jury could reasonably
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`base its finding that age was a determinative factor in AT&T’s surplus and termination of Ray.
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`See Pitts, 646 F.3d at 155. Rather, there was ample evidence for the jury to reasonably conclude
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`that age had a determinative role in AT&T’s decision to surplus and fire Ray. See Resp. 9-22. For
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`example, it was reasonable for the jury to find that Van Buskirk’s LinkedIn articles, emails, and
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`management position contributed to a culture of age bias in the company.3 See, e.g., Hearing Tr.
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`Vol. IV, 36:25-37:2 (Van Buskirk testifying that she was the ultimate decision maker during the
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`2017 surplus); P-72 (LinkedIn article expressing concern that AT&T was “old and stodgy” and
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`3
`AT&T argues that the Third Circuit’s decision in Fowler v. AT&T, Inc., 19 F.4th 292 (3d
`Cir. 2021) precludes my determination that the jury could reasonably rely on the New York Times
`article’s discussion as evidence of pretext. See Mot. 19. The Court in Fowler affirmed summary
`judgment in favor of AT&T in part on the basis that the evidence was insufficient “for a jury to
`conclude that her particular ratings were pretext for discriminatory bias.” 19 F.4th at 302. It stated
`in a footnote, “[w]e are confident that no reasonable juror would view the very general statements
`made by AT&T senior management about how the company has an aging workforce and the need
`to reinvent the company as evidence of pretext in Fowler’s case.” Id. at 307 n.7 (emphasis added).
`But, in Ray’s case, the jury did just that after hearing Van Buskirk testify and rejecting her
`explanations. The jury’s credibility assessment of Van Buskirk is unassailable. See Lightning
`Lube, Inc., 4 F.3d at 1166.
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`praising a New York Times article, see P-71, discussing AT&T’s aging workforce and need to
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`reinvent itself); P-73 (LinkedIn article discussing benefits of being young in the workforce). It
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`was also reasonable for the jury to find incredible Van Buskirk’s testimony that she generally did
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`not assess Ray’s estimated age. Hearing Tr. Vol. IV, 36:2-9 (“Q. Did you think she was closer to
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`28 or 58 or 50 or 30? A. Again, I don’t really assess ages as I see people, not categorize them.”).
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`Likewise, it was reasonable for the jury to conclude that the lack of documentation concerning the
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`Perez and Gill transfers, and the transfers themselves, suggested that AT&T did not follow its own
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`policies and procedures in connection with the surplus and allowed Gill (who was in her late
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`twenties) to take the vacancy that should have gone to Ray. See Resp. Br. 16 (citing Hearing Tr.
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`Vol. I, 80:10-82:17, 83:9-17; id. at Vol. II, 57:20-58:6; P-77). Similarly, it was also reasonable
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`for the jury to conclude that the inconsistencies in AT&T’s ratings processes suggested that age
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`was a determinative factor in Ray’s surplus and termination. See Resp. Br. 16-18; see, e.g., P-39
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`& D-31 (Ray received a higher 9-box score for leadership than Kuhn, yet Kuhn received a surplus
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`rating of 5 in leadership while Ray received a 3.8).
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`AT&T’s arguments are meritless, and its motion for judgment as a matter of law will be
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`denied.
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`2. AT&T Has Waived Its Argument That There Was Insufficient
`Evidence from Which the Jury Could Have Reasonably Found
`That AT&T Knowingly or with Reckless Disregard Violated the
`ADEA
`AT&T also argues under Rule 50(b) that there is insufficient evidence from which the jury
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`could have reasonably found that it acted knowingly or with reckless disregard in violating the
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`ADEA. Mot. 41-45. But AT&T has failed to preserve this argument. “A motion for judgment as
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`a matter of law pursuant to Rule 50(b) must be preceded by a Rule 50(a) motion sufficiently
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`specific to afford the party against whom the motion is directed with an opportunity to cure
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 13 of 24
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`possible defects in proof which otherwise might make its case legally insufficient.” Lightning
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`Lube, Inc., 4 F.3d at 1172 (citing Acosta v. Honda Motor Co., 717 F.2d 828, 831-32 (3d Cir.1983)).
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`In its Rule 50(a) motion, see generally Hearing Tr. Vol. IV, 97:14-112:15, AT&T contended only
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`that the evidence was insufficient to support a finding that age was a determinative factor; it made
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`no argument in the alternative that, if age was found to be a determinative factor, there was
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`insufficient evidence to support a finding of knowledge or reckless disregard. See, e.g., Hearing
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`Tr. Vol. IV, 101:12-15 (“And so if we’re looking at the question, the only question that the ladies
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`and gentlemen in that box have to answer, whether or not but for Ms. Ray’s age she shouldn’t have
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`been laid off, there is zero evidence to suggest bias here.”). And “[w]hile it might be argued that
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`a sufficiency challenge to finding willful discrimination is encompassed in a challenge to finding
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`age discrimination in general,” this argument ignores that proving willfulness or reckless disregard
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`requires an evidentiary showing distinct to that required of demonstrating age as a determinative
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`factor. See Miller v. Eby Realty Grp. LLC, 396 F.3d 1105, 1114 (10th Cir. 2005). AT&T failed
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`to alert Ray “to a possible evidentiary deficiency on this issue,” and Ray “was not afforded an
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`opportunity to correct such problem before the case was submitted to the jury, if one existed.” Id.
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`at 1114-15 (holding that movant waived Rule 50(b) argument that the evidence was insufficient to
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`support a finding that it knowingly or with reckless disregard violated the ADEA because it failed
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`to raise this ground in its Rule 50(a) motions, instead focusing on whether there was sufficient
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`evidence to support a finding of age discrimination). This constitutes waiver.4
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`4
`AT&T also disputes Ray’s counsel’s description of the legal standard for willfulness during
`her closing remarks, which occurred subsequent to its Rule 50(a) motion. Mot. 42 (citing Hearing
`Tr. Vol. V, 45:12-16). But AT&T did not object to this statement at the time, nor does it move for
`a new trial under Rule 59 based on this ground. Again, AT&T has failed to preserve its argument.
`See Pierce v. City of Phila., 391 F. Supp. 3d 419, 437 (E.D. Pa. 2019) (“Courts consistently hold
`that a party’s failure to object to the impropriety of closing remarks precludes the party from
`seeking a new trial on those grounds.”) (citing Burlington, 2016 WL 1221426, at *8). In any event,
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 14 of 24
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`Nevertheless, there is ample evidence for the jury to have reasonably found that AT&T
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`acted knowingly or with reckless disregard in violating the ADEA. For example, the jury heard
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`Van Buskirk testify that she was the “ultimate decision-maker” for the 2017 surplus and that she
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`knew there was a law that prevented age discrimination:
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`Q. And in regards to this surplus that happened in the fall of 2017
`you were the ultimate decision-maker, correct?
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`A. That’s right.
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`Q. And you were aware at the time that there was a law that
`prohibited age discrimination, correct?
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`A. Of course, we’re familiar with laws.
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`THE COURT: No, she asked if you were familiar with
`the law that prohibits age discrimination. Were you aware of that?
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`THE WITNESS: Yes, absolutely.
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`Hearing Tr. Vol. IV, 36:25-37:9. The jury also heard Cavalieri testify that she knew at the time of
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`the surplus that there was a law prohibiting age discrimination. Hearing Tr. Vol. II, 84:20-23 (“Q.
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`Okay. When you -- the []surplus ratings and Ms. Ray lost her job, you did know that there was a
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`law that prohibited age discrimination, correct? A. Yes.”). As discussed in supra Section III.A.1,
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`there was sufficient evidence to support the jury’s finding that age was a determinative factor in
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`Ray’s selection for surplus and ultimate termination. From that, coupled with Van Buskirk’s and
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`Cavalieri’s testimony, it was reasonable for the jury to conclude that AT&T acted knowingly or
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`with reckless disregard in violating the ADEA.
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`AT&T challenges that determination, arguing that the evidence shows that:
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`my legal instructions properly stated the law and the jury was cautioned to limit its consideration
`of counsels’ statements. Hearing Tr. Vol. I, 58:5-60:4; id. at Vol. V, 14:5-16:25.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 15 of 24
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`[It] directed managers to follow a detailed and rigorous process for
`rating and ranking employees in connection with a surplus exercise
`that ensures decisions were based on legitimate, business criteria
`(performance, leadership, skills, and experience ) to the exclusion of
`any impermissible factors. . . . [And] Cavalieri and Woodard[] both
`testified that their ratings had nothing to do with age but instead
`were based upon observations of their direct reports and their good
`faith business judgments about each individual.
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`Mot. 42. AT&T is essentially asking to relitigate the jury’s finding that age was a determinative
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`factor in AT&T’s surplus and termination of Ray. That is not my role at the Rule 50(b) stage; I
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`am not to weigh the evidence presented to the jury, determine witness credibility, or substitute my
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`own version of the facts for those presented to the jury. See Lightning Lube, Inc., 4 F.3d at 1166.
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`B. AT&T Is Not Entitled to a New Trial
`In the alternative, AT&T argues that it is entitled to a new trial because “[f]ive evidentiary
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`rulings resulted in a miscarriage of justice.”5 Mot. 45. According to AT&T, I erred by: (1)
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`preventing AT&T from questioning Ray about the scores she assigned her subordinates during the
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`surplus; (2) allowing Ray to introduce evidence concerning the 2016 surplus; (3) allowing Ray to
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`admit into evidence the ADEA Listing; (4) preventing Cavalieri from “testify[ing] about
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`[Mundis’s] report to [her] regarding the investigation into Ray’s employee engagement scores”;
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`and (5) not providing a curative jury instruction “to mitigate counsel’s improper suggestion of
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`misconduct” pertaining to the absence of certain documents. Mot. 45-53. I disagree, and reject
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`the extraordinary suggestions that those discretionary rulings resulted in a miscarriage of justice.
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`5
`As discussed in supra Section II, AT&T applies the incorrect legal standard in presenting
`its argument in favor of a new trial on the grounds of improper evidentiary rulings.
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`Case 2:18-cv-03303-TR Document 173 Filed 02/22/22 Page 16 of 24
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`1. It Was Not an Error to Prevent AT&T from Inquiring into the
`Scores That Ray Assigned Her Direct Reports During the Surplus
`Before trial, I ordered that “[a]lthough AT&T may cross-examine Ms. Ray about her
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`involvement in rating employees during the 2017 reduction-in-force, it may not inquire about the
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`individual ratings she provided.” Oct. 28, 2021 Order (doc. 139), ¶ 6. This ruling was not
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`erroneous. AT&T—not Ray—was on trial for age discrimination, and the specific ratings given
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`by Ray to her direct reports in an unrelated context were irrelevant to Ray’s claims, and had little
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`probative value in deciding whether age was a determinative factor in AT&T’s section of Ray for
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`surplus and termination. Resp. Br. 30. The minimal probative value—which AT&T suggests to
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`be “that [Ray], too, gave shorter-tenured employees higher ratings than their longer-tenured
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`counterparts in the same exercise, following the same instructions Cavalieri had when rating Ray”
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`(Mot. 47)—is substantially outweighed by the danger of confusing the jury and undue delay. See
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`United States v. Abel, 469 U.S. 45, 54 (1984) (“A district court is accorded a wide discretion in
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`determining the admissibility of evidence under the Federal Rules. Assessing the probative value
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`of [the proffered evidence], and weighing any factors counseling against admissibility is a matter
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`first for the district court’s sound judgment under Rules 401 and 403[.]”); see also Oct. 28, 2021
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`Order, ¶ 6 (“Any probative value of specific ratings of individuals unrelated to this tri