(Jackson). The plaintiff must show that his age was a determining factor in the employer’s decision.
See Adreani v. First Colonial Bankshares Corp., 154.F.3d 389, 393 (7th Cir. 1998). The plaintiff
must establish that: (1) he was in a protected class (40 years of age or older) (29 U.S.C. § 631(a));
(2) he performed his job duties such that he was meeting his employer’s legitimate expectations;
(3) despite his performance, he suffered an adverse employment action; and (4) similarly situated
younger employees were treated more favorably. See Bennington v. Caterpillar Inc. 275 F.3d 654,
659 (7th Cir. 2001) (Bennington).

Baxter argues that Mattenson failed to prove that he was meeting Baxter’s legitimate
expectations. Baxter cites Mattenson’s July 2001 review and performance improvement plan
(“PIP”) which include Mattenson’s failure to file certain foreign patents on time, that engineers
complained about Mattenson’s lack of clarity and the lack of direction of his legal advice, and that
Mattenson did not create a written patent strategy for the Pegasus project. Baxter argued to the jury
that the PIP and the admission by Mattenson to aspects of the July 2001 review proved that
Mattenson was not meeting Baxter’s legitimate expectations. Mattenson, however, provided
sufficient evidence to allow the jury to reject Defendant’s argument and conclude that Mattenson
was meeting Baxter’s legitimate expectations. This evidence included Mattenson’s employment
ratings immediately prior to the July 2001 review in which Mattenson was rated “meets
expectations,” Mattenson’s receipt of merit raises and merit-based stock options just prior to
July 2001, and Mattenson’s supervisor’s testimony that she had not planned on terminating
Mattenson’s employment in July 2001. Furthermore, Mattenson argued and presented evidence that

the July 2001 review and PIP were not created to inform Mattenson of his deficiencies and were a



The reputational or other injury that causes the diminution in
expected earnings can stay with the employee indefinitely. Thus, the
calculation of front pay differs significantly from the calculation of
lost future earnings. Whereas front pay compensates the plaintiff for
the lost earnings from [his] old job for as long as [he] may have been
expected to hold it, a lost future earnings award compensates the
plaintiff for the diminution in expected earnings in all of [his] future
jobs for as long as the reputational or other injury may be expected to

affect [his] prospects.
xe

Properly understood, the two types of damages compensate for
different injuries and require the court to make different kinds of
calculations and factual findings.

Williams, 137 F.3d at 954.

The Civil Rights Act of 1991 provided compensation under Title VII for traditional harms
associated with personal injury, such as pain and suffering and harm to reputation. Prior to the Civil
Rights Act of 1991, such personal injury harms were not compensable. See Commissioner of
Internal Revenue v. Schleier, 515 U.S. 323, 335-36 (1995) (Schleier).

“Like the pre-1991 version of Title VII, the ADEA provides no compensation ‘for any of the
other traditional harms associated with personal injury.” Monetary remedies under the ADEA are
limited to back wages, which are clearly of an ‘economic character,’ and liquidated damages, which
... Serve no compensatory function.” Schleier, 515 U.S. at 336. Thus, the ADEA does not permit
a separate recovery of compensatory damages for pain and suffering, emotional distress, or injury
to professional reputation. See Schleier, 515 U.S, at 326; Downey v. Commissioner of Internal
Revenue, 33 F.3d 836, 839 (7th Cir. 1994) (Downey); Pfeiffer v. Essex Wire Corp., 682 F.2d 684,
688 (7th Cir. 1982) (Pfeiffer); Courtney v. City of New York, 20 F. Supp. 2d 655, 660 (S.D.N.Y.

1998) (Courtney); McLaren v. Emory Uniy., 705 F. Supp. 563, 566 (N.D. Ga. 1988) (McLaren);

Rokosik v. City of Chicago, 1999WL966098 (N.D, Ill. Oct 13, 1999) (Rokosik).


nondiscriminatory reason offered by the decision maker will be sufficient even if the reasons are
foolish, trivial, or even baseless. Debs, 153 F.3d at 396.

Mattenson provided sufficient evidence to allow a reasonable jury to conclude that Baxter’s
explanation for its actions toward Mattenson were unworthy of credence or that a discriminatory
reason more likely motivated Baxter. This evidence (some of which has been discussed above)
included Mattenson’s positive employment ratings immediately prior to the July 2001 review and
Mattenson’s receipt of merit raises and merit-based stock options just prior to July 2001. Mattenson
also presented evidence that Baxter contemplated discharging Mattenson prior to the July 2001
review and that the July 2001 review was a pretense to “force” Mattenson out of Baxter.
Furthermore, Mattenson impeached Baxter’s witnesses, who testified that Baxter had not
contemplated discharging Mattenson prior to the July 2001 review and denied the July 2001 review
was a premeditated attempt to force Mattenson out of Baxter.

Based on the above, Baxter’s Renewed Motion for Judgment as a Matter of Law is denied.

Baxter’s Motion for a New Trial

Pursuant to Federal Rule of Civil Procedure 59, a new trial may be granted if the verdict is
against the manifest weight of the evidence or, for other reasons, the trial was not fair to the moving
party — including errors in the admission or exclusion of evidence. See Shick y. Illinois Dept. of
Human Serv., 307 F.3d 60S, 611 (7th Cir. 2002) (Shick). A new trial may be granted in the event
of the admission or exclusion of evidence only if such evidence had a substantial influence over the

jury which resulted in a verdict inconsistent with substantial justice. See Shick, 307 F.3d at 611.


ruse to “force” Mattenson out of Baxter.' Based on all of the evidence of record, there was ample
evidence for a reasonable jury to find that Mattenson was meeting Baxter’s legitimate expectations.

Baxter also argues that Mattenson failed to establish that similarly situated employees were
treated more favorably. Treating similarly situated younger employees more favorably includes the
hiring of someone substantially younger or other such evidence indicating that it was more likely
than not that the plaintiff's age was the reason for the discharge. See Robin v. Espo Eng’g Corp.,
200 F.3d 1081, 1090 (7th Cir. 2000); Cianci y. Pettibone Corp., 152 F.3d 723, 738 (7th Cir. 1998).

Mattenson provided such evidence, including evidence that Mattenson’s replacement,
Joseph Regan, was sixteen years younger than Mattenson, was not within the protected class, and
was paid a higher salary than Mattenson. Accordingly, a reasonable jury could have found that
similarly situated employees were treated more favorably than Mattenson.

Baxter also argues that Mattenson failed to establish that Baxter’s actions were a pretext to
cover up discrimination. A plaintiff can establish pretext by showing that the employer’s
explanation is unworthy of credence or that a discriminatory reason more likely motivated the
employer. Debs v. Northeastern Illinois Univ., 153 F.3d 390, 395 (7th Cir. 1998) (Debs). Pretext
in this context does not mean a mistake; rather, it means “a lie, specifically a phony reason for some

action.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir 1995). An honest belief in the

'The evidence included testimony of Marla Persky, Deputy Counsel of Baxter, that she
was committed to helping Mattenson succeed and had no intention of firing Mattenson which
was repudiated by the introduction of a memorandum written by Stephanie Bradley, Vice-
President and Associate General Counsel of Baxter, that indicated Mattenson would not be
employed by Baxter within six months. Persky also testified that no litigation was contemplated
at the meeting with Bradley; this is contrary to Bradley’s assertion during discovery that the notes
of the meeting were privileged as Bradley’s work product, prepared in anticipation of litigation.
This position was reasonably supported by the contents of the notes.

5



decision.? Plaintiff's Exhibit No. 112, which contained DeBrock’s calculations of backpay and
“lost future earnings” was redacted as to the “lost future earnings” by agreement of the parties.
Plaintiff’s redacted Exhibit No. 112 indicated that Mattenson’s lost earnings until the time of trial
was $517,997.00 and did not contain the $3 million-plus claim for lost future eamings. No jury
instruction was given regarding lost future earnings.

Contrary to front-pay damages discussed above, lost future earnings is a common-law tort
remedy available to plaintiffs in a Title VII case through expanded remedial provisions recoverable
via the Civil Rights Act of 1991. See Williams, 137 F.3d at 952.

Lost future earnings compensates a plaintiff for a lifetime of diminished earnings resulting
from the reputational harms the plaintiff suffers as a result of the employer’s discrimination. See
Williams, 137 F.3d at 953. Unlike front pay, which is limited in duration to the point in which the
plaintiff finds employment comparable or superior to his old job, lost future earnings are not limited

in duration in the same way. See Williams, 137 F.3d at 954.

*Plaintiff’s Attorney: Under the circumstances the plaintiff thinks it would be more
prejudicial to its position to suffer a possible remand from the appellate court than have Your
Honor decide it, so we are waiving that issue [lost future earnings] and asking Your Honor to
decide the front pay issue yourself.

The Court: What do you say to that?

Defendant’s Counsel: Yes, it was our objection that front pay should go to Your Honor;
and there was no such thing as lost future earnings under the ADEA, so that’s fine.

The Court: All right. Then that issue is removed, and any instruction in that regard will
be removed.



—

Minute Order Form (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Jud Sitting Judge if Oth
ior Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 02 C 3283 DATE 11/29/2004
CASE Mattenson vs. Baxter Healthcare
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

(1) im} Filed motion of { use listing in “Motion” box above.]

(2) a Brief in support of motion due

@) a Answer brief to motion due___. Reply to answer brief due___.

(4) a Ruling/Hearing on___setfor___—_at

(5) Oo Status hearing[held/continued to] [sct for/re-set for]on___—ssetfor_— sat,

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——sat_—

{7) im) Trial[set for/re-set for]on__—at_—

(8) QO (Bench/Jury trial] [Hearing] held/continued to_ at,

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OCOFRCP4(m) CO Local Rule 41.1 CIFRCP41(a)(1) C1 FRCP41(a)(2).

do) [Other docket entry] For the reasons stated in the attached memorandum opinion and order,

di) [For further detail see order attached to the original minute order.]

Mattenson’s motion for an amended judgment is denied. Baxter’s renewed motion for judgment as a
matter of law and motion for a new trial are denied. Enter Memorandum Opinion and Order.

No notices required, advised in open court.

No notices required.
‘at umber of notices

Notices mailed by judge's staff.

Notified counset by telephone.

v | Docketing to mail notices.

Mail AO 450 form. : ) VAs ESeee sn
Copy to judge/magistrate judge.
ce may G2 POM HONS
courtroom "
MF deputy’s ut
initials ae

Date/time received in
central Clerk's Office

mailing deputy initiats



possible to infer that the decision maker was influenced by such animus in making their decision.
See Hunt y. City of Markham, 219 F.3d 649, 652-53 (7th Cir. 2000). Furthermore, while
inappropriate remarks not shown to be directly related to an employment decision may not support
adirect-method-of-proof discrimination case, such remarks, in connection with other evidence, may
support a case under the indirect McDonnell Douglas method. See Gorence v. Eagle Food Centers,
Inc., 242 F.3d 759, 762 (7th Cir. 2001) (Gorence).

In this case, Mattenson elicited testimony of “stray” comments made by several corporate
personnel conceming the age of many Baxter employees. Walter Casten, a Director of Global
Logistics for Baxter’s Renal Division, testified about comments he heard at the March 2001 meeting.
At the meeting, Robert Hribernik, Vice President of Baxter International, stated that Baxter had too
many “old and expensive” employees. Steve Schappe, Vice President of Transportation, “backed”
Hriberik at the meeting and stated that every time he meets an employee, the “first thing they tell
him is how old they are and how many retirement points they have.” Gabriele Eaton, a Human
Resource “Person,” also “backed” Hribernik and stated that “we had too many people that were too
old . . . it was imperative that we clear out the old, dead wood.”

Casten also testified that a few days after the March 2001 meeting, he spoke with
Barbara Morris, the Vice President of Corporate Human Resources, about the comments at the
March 2001 meeting. Morris agreed with Schappe for the most part and also stated that they cannot
use the word “old.”

In June 2001, Casten met with Donald Davis, Casten’s superior, about an incentive plan.
Davis did not want to provide the incentive plan to two older employees because Davis believed that

the purpose of the incentive plan was to provide incentive to up and coming young people.

it



Whether lost future earnings, as defined and clarified by the Seventh Circuit in Williams, are
recoverable in an ADEA case appears to be a question of first impression but need not be determined
in the instant case.

The parties agreed that the section of Plaintiff's Exhibit No. 112 that addressed lost future
earnings would be redacted and not presented to the jury. At that time, Defendant did not move for
a mistrial or seek any limiting instruction. During closing arguments, neither party discussed the
issue of lost future earnings. Plaintiff argued that the undisputed sum of $517,997.00 for backpay
damages was a conservative amount in light of other benefit losses, such as paying $700 per month
for his wife’s insurance instead of the $70.00 a month it cost Mattenson while employed at Baxter.
Furthermore, the jury was properly instructed as to how to calculate damages, without an instruction
as to lost future earnings. The jury’s award of $532,971.28 was consistent with the included
undisputed loss of $517,997.00 in backpay damages and resulted in a verdict consistent with the
evidence and substantial justice. See Shick, 307 F.3d at 611. DeBrock’s testimony in this regard did
not have a substantial influence on the jury which resulted in a verdict inconsistent with substantial
justice. See Shick, 307 F.3d at 611.

Baxter also argues that the Court’s admission of “stray” ageist remarks by non-decision
makers constituted error.

Generally, comments by non-decision makers are insufficient evidence of discriminatory
intent. See Lucas v. Chicago Transit Authority, 367 F.3d 714, 730 (7th Cir. 2004). However,
express discriminatory comments made by decision makers, or those that provide input into the
decision, made around the time of and in reference to an adverse action may constitute evidence of

discriminatory intent. If a person “provides input” into the decision making process, it may be

10



“{E]videntiary errors satisfy this standard only if a significant chance exists that they affected the
outcome of the trial.” Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1048
(7th Cir. 2000).

Baxter argues that it is entitled to a new trial because the jury verdict was against the manifest
weight of the evidence. As set out above, there was a reasonable basis in the record to support the
jury’s verdict.

Baxter argues that the Court improperly admitted evidence of lost future earnings because
Mattenson was not seeking lost future earnings, and the introduction of such evidence was irrelevant
and highly prejudicial to Baxter.

At trial, Mattenson sought to introduce evidence, through its expert economics expert,
Lawrence DeBrock, of the amount of money that Mattenson would have made if he had remained
employed by Baxter until his retirement at the age of sixty-five. Baxter argued that such testimony
could not be presented as to the issue of lost future earnings because lost future earnings are not
recoverable in an age discrimination case. Mattenson originally contended that the testimony was
admissible as to lost future earnings.

DeBrock testified that Mattenson’s losses from the date of termination to the time of trial was
$517,997.00. Baxter’s objection to the testimony as to lost future earnings was overruled. DeBrock
testified that Mattenson’s losses from the start of the trial to the age of sixty-five, if he had stayed
at Baxter, with no mitigating earnings, was $3,293,878.

However, before the case went to the jury, Mattenson moved to withdraw his claims for lost
future earnings. Baxter did not object at the time the claims were withdrawn and did not seek any

type of limiting instruction as to DeBrock’s lost earnings testimony and acquiesced in Mattenson’s



front pay and the resulting unduly speculative nature of any such award. The findings of the Court
and the conclusions of law are fully supported by the evidence before the Court. Accordingly,
Mattenson’s Motion to Amend Judgment is denied.

Baxter’s Renewed Motion for Judgment as a Matter of Law

A Rule 50 motion for judgment as a matter of law mirrors that involved in evaluating a
summary judgment motion. See Appelbaum v. Milwaukee Metro. Sewage Dist., 340 F.3d 573, 578-
79 (7th Cir. 2003) (Appelbaum). The court looks to all of the evidence in the record and asks
whether any reasonable jury could have found for the prevailing party. The evidentiary record is
construed in the prevailing party’s favor, drawing all reasonable inferences in that party’s favor and
resisting any temptation to weigh the evidence or have the court make its own credibility
determinations. See Appelbaum, 340 F.3d at 579. Following a jury trial, the court must bear in mind
that the question is not whether the jury believed “the right people,” but only whether the jury was
presented with a legally sufficient amount of evidence from which it could reasonably derive its
verdict. See Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir. 2000) (Massey).
Overturning a jury verdict is not something the courts may do lightly. See Massey, 226 F.3d at 925.

Baxter argues that judgment as a matter of law is proper because Mattenson failed to prove
critical elements of his claim.

The Age Discrimination in Employment Act (ADEA) makes it unlawful to “discharge any
individual or otherwise discriminate against any individual . . . because of such individual’s age.”
29 U.S.C. § 623(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). Under the
McDonnell Douglas burden-shifting test, the plaintiff must first establish a prima facie case by the

preponderance of the evidence. Jackson v. E.J. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999)


Mattenson’s Motion for an Amended Judgment

Rule 52(b) provides that “{o]n a party’s motion filed no later than 10 days after entry of
judgment, the court may amend its findings — or make additional findings — and may amend the
judgment accordingly.” Fed. R. Civ. P 52(b). Similarly, Rule 59(¢) provides that a motion to alter
or amend judgment may be filed no later than 10 days after entry ofjudgment. Fed. R. Civ. P. 59(e).
However, motions made pursuant to Rule 52(b) and/or 59(¢) are not intended to relitigate old matters
or to allow the parties to present new theories of the case. Instead, these motions are intended to
correct manifest errors of law or to present newly discovered evidence. See MacSteel Int’l USA
Corp. v. Superior Prod. Co., 2002 WL 1067248 (N.D. Ill. May 28, 2002); Evans, Inc. v. Tiffany &
Co., 416 F. Supp. 224, 244 (N.D. Ill. 1976); Heck v, Rosenthal Collins Group, 2000 WL 91896
(NLD. Ill. Jan. 14, 2000).

Itis undisputed that the ADEA allows trial courts, at their discretion, to award front pay. The
issue of front pay lies with the court, not the jury. See Williams v. Pharmacia, Inc., 137 F.3d 944,
951-53 (7th Cir. 1998) (Williams), Front pay compensates a plaintiff for the immediate effects of
plaintiff's unlawful termination of employment. Front pay gives the plaintiff the earnings he would
have received had he been reinstated. Thus, front pay gives a plaintiff the present value of the
earnings from his old job less the earnings from his new or expected job. See Williams, 137 F.3d
at 953-54. Front pay may be awarded in Title VII cases. See Williams, 137 F. .3d at 951.

Mattenson has not established the existence of any manifest errors of law or fact in the
June 3, 2004 Memorandum Opinion and Order denying front pay damages or presented any newly
discovered evidence as required by Rules 52(b) or 59(e). Rather, Mattenson appears to be attempting

to relitigate the determination by this Court regarding the lack of evidence to reasonably calculate


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHARLES R. MATTENSON, )
Plaintiff, ; No. 02 C 3283
v. } Judge John W. Darrah
BAXTER HEALTHCARE CORPORATION, }
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff, Charles Mattenson, filed suit against Defendant, Baxter Healthcare Corporation,
alleging age discrimination in violation of the Age Discrimination Employment Act of 1967
(“ADEA”). A jury trial was commenced. At the close of Mattenson’s case, Baxter moved for
judgment as a matter of law as to all of Mattenson’s claims. At the close of all of the evidence and
before the case was submitted to the jury, Baxter again moved for judgment as a matter of law as to
all of Mattenson’s claims. The Court denied Baxter’s motions and submitted the case to the jury.
On November 25, 2003, the jury found for Mattenson and awarded him backpay damages in the
amount of $532,791.28. The jury also found that Baxter’s conduct was willful. Accordingly,
judgment was amended in favor of Mattenson in the amount of $1,065,582.56.

On February 2, 2004, a trial before the Court without a jury was held on the issue of awarding
Mattenson front pay. On June 3, 2004, the Court denied Mattenson’s front-pay damages. Plaintiff
has moved to amend the Court’s finding and judgment as to front pay pursuant to Rule 52(b) or,
alternatively, under Rule 59(e). Defendant has renewed its motion for judgment as a matter of law

or, in the alternative, for a new trial.

low,



The above stray remarks were admissible to show an inference of discriminatory intent under
the indirect burden-shifting method of proof relied upon by Plaintiff at trial and were not unfairly
prejudicial to Baxter. See Gorence, 242 F.3d at 762; Huff v. UARCO, Inc., 122 F.3d 374, 385
(7th Cir. 1997) (remarks unrelated to employment decision were probative of discriminatory bias
when assessing whether an employer’s reasons for an adverse employment action are pretextual).
The probative value of these statements for this purpose is not substantially outweighed by danger
of unfair prejudice to Baxter.

Baxter also argues that the Court improperly admitted evidence regarding three other Baxter
Renal Division employees, improperly excluded evidence of Plaintiff’s performance prior to 1998,
improperly admitted the notes of Stephanie Bradley, improperly admitted evidence of post-
termination effects on Plaintiff's personal life, misstated the law in the burden instruction provided
to the jury, and erred in refusing to instruct the jury on critical issues. Baxter has not presented any
new arguments in support of these contentions other than presented at trial. These arguments were
considered and ruled upon. Accordingly, Baxter’s Motion for a New Trial on these grounds are
denied for the reasons previously set forth by the Court.

For the foregoing reasons, Mattenson’s Motion for an Amended Judgment is denied.

Baxter’s Renewed Motion for Judgment as a Matter of Law and Motion for a New Trial are denied.

Dated: Vcverhn29 206 4 - “ BA Apt —

(__J6HN W. DARRAH
United States District Judge

12