Currier v. United Technologies Corp.

United States Court of Appeals
For the First Circuit

No. 04-1696

DURWOOD L. CURRIER,

Plaintiff, Appellee,

v.

UNITED TECHNOLOGIES CORPORATION,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lipez, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.

Danielle Y. Vanderzanden with whom Robert C. McNamee, Day,
Berry & Howard LLP, Peter Bennett, Frederick B. Finberg, and The
Bennett Law Firm, P.A., were on brief for appellant.
Louis B. Butterfield with whom Bernstein, Shur, Sawyer &
Nelson was on brief for appellee.

December 22, 2004
 COFFIN, Senior Circuit Judge. Appellee Durwood Currier had

worked for appellant Pratt & Whitney ("Pratt"), a division of

United Technologies Corporation ("UTC"), for twenty-one years

before he was terminated in a reduction-in-force ("RIF") in mid-

2000. He was 61 years old and had advanced to positions of

increasing responsibility during his tenure with the company,

receiving commendations for the quality of his work and regular

merit pay increases. Following his discharge, Currier filed suit

under state and federal law alleging age discrimination.1 A jury

found in his favor, awarding him $101,000 in back pay and $275,000

in compensatory damages. Although the district court viewed the

case as "very close," it denied Pratt's motions for directed

verdict, new trial or remittitur. Pratt now appeals, claiming,

inter alia, that it was entitled to judgment as a matter of law and

that the district court committed prejudicial error by allowing

flawed statistical evidence to reach the jury. After careful

review, we join the district court in concluding that, though the

case was close, the verdict was supportable.

I. Factual Background

The relevant facts, as the jury could have found them, are as

follows.

1
He claimed violations of the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621-634, and the Maine Human Rights
Act, Me. Rev. Stat. Ann. tit. 5, § 4572.

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 From 1987 to 1999, Currier worked as a business unit manager

at Pratt's facility in North Berwick, Maine, a position in which he

supervised 200 employees and developed the strategy for achieving

the unit's goals in such areas as cost, safety and quality. In

1996, he received a glowing letter of recommendation that praised

his leadership, his "maturity and business acumen," and his "going-

forward potential." That same year, he took over a troubled

business unit, guided it to an improved performance, and was

rewarded with a three-week trip to Japan to tour similar

facilities.

In 1998, Thomas Mayes became the new Operations Manager at the

North Berwick facility, and in that position he supervised Currier

and the then-six other business unit managers. Mayes, who was

twenty years younger than Currier, conducted an evaluation of the

business unit managers in 1998 and rated Currier more unfavorably

than his performance seemed to warrant. For example, Currier's

unit in 1998 achieved an approximately 68 percent reduction in

defects, but he was given the same rating (3 on a scale of 1 to 5)

for "quality" as two other, younger unit managers who experienced

73 percent and 68 percent increases in defects.2 In the "cost"

category of the review, Currier was graded down because his unit's

"cost per standard hour" was high; the evidence permitted the jury

2
Pratt introduced evidence that factors other than the number
of defects contributed to the quality ratings.

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to conclude, however, that the higher cost was attributable to

Currier's success in meeting the company's objective of reducing

inventory by decreasing production lead time.3 Currier's

perspective was that he was charged with the cost of the surplus

labor resulting from that success, even though he assigned the

extra workers to help other business units.

In early 1999, Currier was moved to a newly created manager's

position, in which he was responsible for generating new business.

Mayes' testimony suggested that, rather than a promotion, the

transfer was a response to personnel issues and the increased costs

in Currier's unit. Currier was given no job description and no

goals, and his request for supervisory authority was denied. In

early 2000, Mayes became General Manager of the North Berwick

facility, and Stephen Pickett took over as Operations Manager. A

few months later, UTC told Mayes that the salaried workforce in

North Berwick needed to be reduced by about five percent. Mayes,

Pickett and the head of Human Resources, Thomas Murphy, identified

the job categories to be affected by the RIF, and they included the

new business position held by Currier as one of the jobs to be

eliminated. Rather than simply terminating Currier, however,

3
That is, by accelerating production, fewer hours were needed
to produce the unit's inventory, and less inventory thus needed to
be on hand at any time; the same number of employees remained on
the payroll, however, and allocating their salaries to the smaller
amount of time required to produce the same amount of inventory
would necessarily increase the unit's cost-per-hour.

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management decided to evaluate him along with the six then-current

business unit managers.

Under Pratt's standard layoff guidelines, managers in the job

categories to be affected assess each employee in a targeted

position using a numerical scoring system – the "Matrix" – that

considers five criteria: "achieves results," "criticality of

skills," "qualifications," "business orientation," and

"interpersonal skills." The Human Resources department then

reviews the scoring to ensure compliance with the company's

guidelines and employment laws. The employee with the lowest score

in a particular position is laid off.

In his evaluation of the business unit managers, Mayes gave

Currier the lowest score, a 13 out of a possible 35 points. The

others, all of whom were younger than Currier, received scores of

31, 28, 27, 27, 25 and 17. Currier criticizes the Matrix as a

vague and "entirely subjective" list of criteria and asserts that

his score "defie[d] the objective reality of [his] superb

performance over more than 20 years." He points out that Mayes,

who had been in South Berwick for only two years, did not consult

with Currier's past supervisors or review his past performance

evaluations.

To carry out the Matrix evaluation, Mayes utilized a form in

which he circled a number from one to ten next to each of the five

designated criteria. The evaluation process did not include a

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written explanation for Currier's low scores, but Mayes at trial

gave three reasons for Currier's unfavorable outcome: his unit's

financial performance target was off by more than any other unit's

(based on cost per standard hour); his unit had "significant" labor

relations problems in 1998 (stemming from an increased expectation

that employees work overtime); and he did not perform well in the

business development position. The jury also heard, however, that

Currier received a merit pay increase in December 1999, nine months

after starting the new job and six months before he was terminated.

Currier contended that Mayes' decision-making was infected by

age discrimination, and he relied on his record of proven success

at Pratt to demonstrate that his supposed poor performance – as

reflected in his low Matrix score – was a pretext to mask the real

motive. To substantiate his claim that the motive was unlawful age

bias, Currier presented the testimony of an expert statistician,

Dr. Sat Gupta, who concluded that the RIF disproportionately

affected older employees. Gupta reported that the average age of

the five employees who were laid off was 53, while the average age

of those retained was 45. At one point, he testified that the risk

of layoff increased by about "30 thousand percent" with increased

age.

The jurors were persuaded that discrimination occurred and

rendered a verdict in Currier's favor. On appeal, Pratt contends

that they were improperly and unfairly led astray by Gupta's flawed

-6-
statistics. In particular, Pratt asserts that Gupta incorrectly

based his analysis on the total number of salaried employees at the

Berwick facility, 183, rather than on the 44 employees in the job

categories that Mayes, Pickett and Murphy had designated as subject

to the reduction-in-force. The company also complains that Gupta's

analysis failed to consider whether any factors other than age and

grade – such as the company's need for particular skill sets,

salaries or longevity – accounted for the differing treatment among

employees. Pratt maintains that, because Gupta's statistics were

not drawn from the experience of "similarly situated" employees,

his conclusions lacked any probative value and were thus both

irrelevant and highly prejudicial. Pratt further asserts that, at

a minimum, the court erred in refusing its request to instruct the

jury on the limitations of statistical evidence.

Pratt also argues on appeal that it was entitled to judgment

as a matter of law because Currier failed to meet his burden of

proving age discrimination. Finally, the company challenges the

jury's assessment of damages. We explain below why we find no

reversible error on any of these issues.

II. Discussion

We begin with Pratt's challenge to the statistical evidence,

which it claims warrants a new trial, and then turn to its

contention that the evidence presented at trial simply did not add

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up to a case of age discrimination. The damages issues are

addressed briefly in the succeeding section.

A. Admissibility of the Statistical Evidence

Pratt made repeated efforts to exclude Gupta's testimony from

the jury's consideration, filing multiple pre-trial motions

asserting that his statistical analysis was "unreliable,

methodologically unsound, incomplete, and irrelevant." The company

continued to voice its objections at trial and ultimately was

awarded a standing objection on the issue. Its primary complaint

on appeal is that Gupta's calculations were based on the wrong set

of employees; rather than the entire salaried workforce of 183

employees, Pratt maintains that Gupta's data should have been

limited either to the six similarly situated business unit managers

(plus Currier), or, at most, to the 44 employees who were actually

susceptible to layoff. Gupta acknowledged that, if not all

salaried employees were subject to layoff, his analysis would be

distorted.

Assessing the admissibility of complex expert testimony

before trial, when the court does not yet know the exact nature of

the evidence to be presented, or even during trial, as the case

develops witness by witness, is a challenge for any judge. A judge

reasonably could resolve many admissibility questions either way,

and rampant second-guessing by appeals courts would paralyze the

judicial process. It is thus appropriate that a trial court's on-

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the-spot judgment, when made pursuant to the proper legal standard,

be given broad deference. Accordingly, appellate courts will

reverse a trial court's decision to admit or exclude expert opinion

only for an abuse of discretion. Kumho Tire Co. v. Carmichael, 526

U.S. 137, 152 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143

(1997); Hochen v. Bobst Group, Inc., 290 F.3d 446, 452 (1st Cir.

2002).

Under well established Supreme Court case law, the trial judge

serves as a "gatekeeper" for expert evidence, with the

responsibility of "ensuring that an expert's testimony both rests

on a reliable foundation and is relevant to the task at hand,"

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993);

see also Hochen, 290 F.3d at 452; Fed. R. Evid. 702. Statistical

analyses have been held admissible in disparate treatment

discrimination cases "unless they are 'so incomplete as to be

inadmissible as irrelevant,'" McMillan v. Mass. Soc'y for the

Prevention of Cruelty to Animals, 140 F.3d 288, 303 (lst Cir. 1998)

(quoting Bazemore v. Friday, 478 U.S. 385, 400 n.10 (1986)).

Pratt argues that the court failed to perform its gatekeeping

duties in this case by ignoring the lack of foundation for Gupta's

statistics. It complains that the court presumed incorrectly that

the list of 183 employees that Pratt had supplied to Currier

("Exhibit 22") in compliance with the Older Workers Benefit

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Protection Act, 29 U.S.C. § 626(f),4 defined the group subject to

termination. And, as a result of that presumption, Pratt maintains

that the court allowed into evidence irrelevant and prejudicial

statistics.

Pratt's initial difficulty in demonstrating an abuse of

discretion is that the district court faced a moving target, both

in the nature of the company's objections and in the state of the

evidence. Not until its post-trial motion for judgment as a matter

of law did Pratt explicitly make the argument it now offers about

Gupta's analysis, i.e., that his conclusions are invalid because

his calculations used the full universe of salaried employees

rather than the 44 who were subject to layoff. In its pre-trial

motions, Pratt emphasized that the data on which Gupta relied -

Exhibit 22's list of 183 employees – was flawed because it did not

account for variables other than age and was not confined to

similarly situated employees, in that there was no breakdown in

terms of job, skills, or length of time served.

4
The OWBPA was enacted in 1990 to protect older workers who
are terminated as part of a group, providing them access to
information that might assist them in legal challenges to their
layoffs. See S. Rep. No. 101-263, at 32, 34 (1990), reprinted in
1990 U.S.C.C.A.N. 1509, 1537-38; Oubre v. Energy Operations, Inc.,
522 U.S. 422, 424, 426-27 (1998). The statute requires employers
who seek a waiver of rights from employees affected by a group
termination program to inform the employees of "the job titles and
ages of all individuals eligible or selected for the program, and
the ages of all individuals in the same job classification or
organizational unit who are not eligible or selected for the
program." 29 U.S.C. § 626(f)(1)(H)(ii).

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 Pratt made similar arguments when it moved for directed

verdict both at the close of plaintiff's case and at the close of

all evidence. In its first motion, Pratt also pointed to Gupta's

admission that his statistical sample – and thus his analysis –

would be wrong if any of the other layoffs that were part of the

RIF were attributable to age neutral factors. Pratt did not assert

at that time, however, that the RIF process began with a restricted

pool of eligible employees and that Gupta's analysis was entirely

without foundation on that basis.5

We suspect that the argument did not surface earlier because

the original size of the at-risk pool of employees appeared to

remain an open question through the end of the trial. Although the

district court observed that the evidence unequivocally established

that "ultimately only 44 out of the 183 salaried employees were at

risk for the reduction in force," the key word is "ultimately."

The five job categories chosen to absorb the RIF were picked by

Mayes, Pickett and Murphy, and the record contains no evidence that

would foreclose the jury from reasoning that the original winnowing

down of the 183 to 44 was not "age neutral." As plant manager,

Mayes, the individual whom Currier accuses of bias, was the person

5
Pratt's counsel made the following statement in moving for
a directed verdict after plaintiff's case: "[H]e [Gupta] admits
that if age neutral factors influenced the decision, the only
population that you would look at from a statistical perspective
would be the 44 people in each of those five pools, employees who
were laid off or the eight [actually, seven] in Mr. Currier's
group."

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in charge of effectuating the RIF, and the jury could have found

that he played the leading role in selecting the targeted groups.

In brief, while the particular layoff decisions focused on only 44

employees, the jury reasonably could have viewed the layoff process

to have begun with Mayes' scrutiny of the 183.6 And, in any event,

the factual development of the case belies any abuse of discretion

in this respect in the court's decision to admit the statistical

evidence.

Pratt's related argument that Gupta's analysis was meaningless

because it failed to take into account the wide differences in

circumstances among the terminated employees was a point made

clearly and repeatedly by Pratt through cross-examination of Gupta

and in the testimony of the company's own expert witness. We see

no abuse of discretion in the district court's decision to view

this weakness in Gupta's analysis as a matter of weight rather than

admissibility and thus properly a subject of argument and jury

judgment. As the Supreme Court has observed, "[v]igorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence,"

6
In a footnote in its reply brief, Pratt cites several job
categories not selected for the RIF with a higher average age of
employees than the business unit managers. But the fact that the
business unit managers were not on average the oldest set of
employees does not eliminate the possibility that age played a
role.

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Daubert, 509 U.S. at 596; see also McMillan, 140 F.3d at 303 ("[I]f

[the expert's] analysis omitted what defendants argue are important

variables, or was deficient in other respects . . . it was up to

defendants to exploit and discredit the analysis during cross

examination.").

Pratt took the opportunity to "exploit and discredit" Gupta's

conclusions through other evidence as well. Mayes, the sole

individual accused of acting with discriminatory motive, completed

Matrix evaluations only for the business unit managers and thus had

no direct involvement in the other layoff decisions; as the

district court noted, Mayes' limited role diminished the probative

value of Gupta's collective analysis of the five terminations.

Similarly, Pratt elicited evidence that one of the other employees

laid off, who also was 61 years old at the time, had a history of

performance issues – a fact that again challenged the validity of

Gupta's statistical conclusion of age bias.

The cases on which Pratt relies to assert reversible error in

the admission of the evidence are largely distinguishable. For

example, in LeBlanc v. Great American Insurance Co., 6 F.3d 836,

847-849 (lst Cir. 1993), the court's holding was that the

statistical evidence was insufficient as a matter of law to support

a jury finding of discrimination; Currier does not argue that the

statistics here prove age discrimination, but offers them to

bolster his claim that other facts pointed to age bias. See infra

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at 20. In two other cases, the challenge was to the accuracy or

context of the expert's conclusions. In Irvine v. Murad Skin

Research Labs., Inc., 194 F.3d 313, 320-21 (lst Cir. 1999), the

court concluded that the expert lacked "adequate factual data to

support [his] conclusions," rendering his computations related to

damages unreliable. In Hillstrom v. Best Western TLC Hotel, 354

F.3d 27, 32 (lst Cir. 2003), statistics that showed a high rate of

termination for older employees lacked probative value because

there was no evidence on the universe of employees supervised by

the manager at issue.7

Here, the information on which the statistical analysis was

based was presented, and there is no claim that the statistics were

an inaccurate representation of what the expert analyzed.

Accuracy, of course, is not the whole story. As we have noted,

7
The decisions in Schultz v. McDonnell Douglas Corp., 105
F.3d 1258 (8th Cir. 1997), and Furr v. Seagate Technology, Inc., 82
F.3d 980 (10th Cir. 1996), explicitly support Pratt's argument that
statistical evidence must compare similarly situated employees, but
neither case involves abuse-of-discretion review of a trial court's
decision to admit evidence. In Schultz, the plaintiff
unsuccessfully challenged the exclusion of statistical evidence,
and Furr did not address admissibility at all; the question was
whether the statistics permitted an inference of pretext, id. at
986-87. The jury in Furr had found for the plaintiff, and the
Tenth Circuit reversed the district court's denial of the company's
motion for judgment as a matter of law. Other cases cited by Pratt
are similarly inapt. As noted earlier, see supra at 8-9,
admissibility decisions made as a case develops are entitled to
highly deferential review. Although evidence that early in a trial
seems very pertinent in light of anticipated testimony may later
diminish in probative value, such a change does not mean the
initial decision to admit the evidence was reversible error.

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various factors blunted the significance of Gupta's conclusions

and, indeed, we think his analysis skittered near the line of

inadmissibility. The jury was not, however, uninformed.

Challenges to the probative value of Gupta's analysis were amply

brought to the jury's attention. In these circumstances, we find

no abuse of discretion, and thus no reversible error, in the

district court's decision to admit Gupta's statistics and allow the

jury to assess their significance.8

B. Judgment as a Matter of Law

Pratt argues that it should have been granted judgment as a

matter of law because Currier failed to present sufficient evidence

to meet his burden of proving age discrimination. We review the

8
Appellant separately challenges the district court's refusal
to give an instruction on statistical evidence as part of its
charge, claiming that "the Court's failure to properly charge the
jury" amounted to reversible error because it "resulted in the jury
placing an undue amount of weight on plaintiff's statistical
evidence." We find no merit in this argument. The court
specifically instructed the jurors that they had the duty to weigh
opinion evidence offered by expert witnesses; this adequately
conveyed that they could – and should – reject such evidence if, in
their judgment, it was not probative.
We also reject Pratt's assertion that the absence of an
instruction limiting the relevance of the statistical evidence may
have mistakenly led the jury to find for Currier on a disparate
impact theory. The court both orally instructed the jury and
provided a special verdict form stating Currier's obligation to
prove specific intent to discharge him based on his age. The
verdict form contained four questions, the first of which asked:
"Has Durwood Currier proven by a preponderance of the evidence that
United Technologies terminated his employment because of his age?"
The remaining questions concerned damages and willfulness. In sum,
the district court properly guided the jurors on the plaintiff's
burden of proof and their role in assessing the statistical
evidence.

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district court's denial of Pratt's motion under Fed. R. Civ. P. 50

de novo, Zachar v. Lee, 363 F.3d 70, 73 (lst Cir. 2004), with our

review "weighted toward preservation of the jury verdict," Rodowicz

v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 41 (lst Cir. 2002). "We

must affirm unless the evidence was 'so strongly and

overwhelmingly' inconsistent with the verdicts that no reasonable

jury could have returned them." Walton v. Nalco Chem. Co., 272

F.3d 13, 23 (lst Cir. 2001)(citation omitted).

Currier's initial burden was to establish a prima facie case

as required under the familiar McDonnell Douglas framework, which

is applied when the plaintiff lacks direct evidence of

discrimination. See, e.g., Hillstrom, 354 F.3d at 30; Cruz-Ramos

v. Puerto Rico Sun Oil Co., 202 F.3d 381, 384 (lst Cir. 2000)

(describing the burden-shifting model developed in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); Brennan v.

GTE Gov't Sys. Corp., 150 F.3d 21, 26 (lst Cir. 1998). In the

context of a RIF, he must show that he was at least 40 years old;

that his job performance met his employer's reasonable

expectations; that he experienced an adverse employment action; and

that younger persons were retained in the same position or that the

employer otherwise did not treat age neutrally. Cruz-Ramos, 202

F.3d at 384; Brennan, 150 F.3d at 26. This burden is "not

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onerous," Cruz-Ramos, 202 F.3d at 384, and the requirements were

easily met here.9

It is equally plain that Pratt adequately met its responsive

burden to articulate a legitimate, nondiscriminatory reason for its

action. See Cruz-Ramos, 202 F.3d at 384. The company pointed to

Currier's low score in the Matrix review and identified three areas

of concern: his unit's cost overruns; his unproductive performance

in the new business position; and labor relations problems in his

unit relating to overtime. The burden thus returned to Currier to

prove age discrimination. Id. As we review his effort, "we

inquire whether the evidence as a whole would permit a reasonable

factfinder to conclude that the proffered reason was pretextual and

the true reason was an age-based animus." Brennan, 150 F.3d at 26.

Like the judgment to admit the statistical evidence, it is a

close call whether the evidence presented in this case adds up to

age discrimination. Currier acknowledges that at least two of

Pratt's asserted reasons for his low ranking had a basis in fact.

He admitted at trial that he was not effective in the new business

position, and that "I have myself to blame for it." He does not

dispute that his unit missed its cost target in 1998. On the labor

9
To the extent there was doubt about Currier's performance in
the new business job, it is irrelevant since he was assessed and
ultimately terminated as the lowest ranked business unit manager.
Indeed, the fact that he was evaluated as a unit manager indicates
that the company viewed him as able to meet the expectations of
that position.

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relations issues, he did not directly refute Mayes' testimony

regarding employee discontent about excessive overtime but noted

that "[o]vertime is built into the system" and that his unit was

"no worse, no better than anybody else." Currier further

acknowledged that, before his termination, he had never felt that

he was treated differently based on his age by Mayes or any other

Pratt supervisor.

The jury, however, also heard testimony suggesting that

Currier's low Matrix score did not reflect his capabilities. Just

a few years earlier, he had been asked to take over a troubled unit

and was rewarded for his efforts in turning it around. With that

background, it reasonably may have seemed implausible to the jury

that, in a fair rating, Currier would rank at the bottom of a group

that included one person who had only a couple of months experience

as a unit manager – and, indeed, that his score would be half or

less than half of five of his six peers. In addition, the jury

could have credited Currier's explanation that his more recent cost

overruns did not reflect poor performance but were a temporary

byproduct of his successful strategy to reduce product lead time.

As the district court observed, the testimony about the Matrix also

supported an inference of pretext:

The five Matrix categories ("achieves results,"
"criticality of skills," "qualifications," "business
orientation," and "interpersonal skills") were entirely
subjective and the jury could well have been dissatisfied
with Mayes' vague explanations as to why Currier received
low scores in some of the Matrix categories. With regard

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 to the "qualifications" category, Mayes testified that
"based on [his] observations, the other business units,
based on performance as shown, their ability to use those
skills and their perception to manage business were
better." . . . With regard to the "criticality of skills"
category, Mayes testified that he had not seen Currier
apply his skills to the "changing business environment."

In assessing Currier's skills, Mayes did not review Currier's past

performance reviews, which included the praise for his "going-

forward potential." On the evidence offered, the jury reasonably

could have concluded that Mayes gave an inadequate explanation for

Currier's decline from the excellent evaluations he was given just

a few years earlier.

While this evidence amply supports a jury conclusion of

pretext in Currier's ranking, the more tenuous finding is that age

discrimination furnished the motive. Currier did not point to even

passing comments about age by Mayes or other Pratt supervisors, and

he testified that the first time he felt age bias was when he was

terminated. In Reeves v. Sanderson Plumbing Products., Inc., 530

U.S. 133, 147 (2000), however, the Supreme Court held that, "[i]n

appropriate circumstances," the plaintiff's prima facie case

together with sufficient evidence of pretext could be enough to

support an inference of discrimination. The circumstances here

seem to us appropriate. The prima facie case and – to use the

district court's adjective – the "unpersuasive" explanations for

Currier's low ratings loom large in the absence of any other

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explanation. There is no suggestion that Mayes disliked Currier,

or that they were in any way incompatible.

We need not rely on the Reeves holding, however, because

Currier offered more to support the jury's determination. When two

unit manager jobs opened up in the months before the RIF, Currier

was passed over for the positions even though he had communicated

his desire to move back from the new business slot. Both of the

employees selected were significantly younger than Currier (20 and

15 years), and one had no prior experience as a business unit

manager. If the jurors viewed the company's performance

justification for Currier's termination as pretext – as apparently

they did – they likewise could have rejected Mayes' explanation

that performance concerns motivated this earlier decision-making.

Similarly, the jury may have seen evidence of age bias in the

contrast between Mayes' 1998 performance evaluation of Currier and

his evaluations of other unit managers. See supra at 3-4. In

addition, although the probative force of Gupta's testimony was

limited for reasons we have explained, the jury properly may have

given it some weight, at least in the absence of any conflicting

evidence. Even after Gupta acknowledged that adding other

variables to his analysis might have led to a different outcome, he

maintained that the result he achieved would retain significance:

I think the evidence was so strong that perhaps I would
still say that age was a dominant player. Again, there
is some speculation how much impact other variables have
but it does not dilute such a tremendous impact.

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 In sum, after careful consideration, we agree with the

district court that "[t]he case was not strong but . . . there was

sufficient evidence for the jury to infer that Currier's age was

the real reason that Mayes selected him to be terminated."

C. New Trial or Remittitur Based on Excessive Damages

Pratt argues that the evidence failed to support either the

jury's award of $101,580 in back pay or its compensatory damages

award of $275,000, and it claims that the district court abused its

discretion by denying the company's motion for a new trial or

remittitur. See Davignon v. Clemmey, 322 F.3d 1, 11 (lst Cir.

2003). Pratt acknowledges that a party seeking remittitur "bears

a heavy burden of showing that an award is 'grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand,'"

Koster v. TWA, 181 F.3d 24, 34 (lst Cir. 1999)(citation omitted).

We agree with the district court that the damages award here

does not meet that standard, and its reasoning accords with our

own. See District Court Order on Post-Trial Motions, at 20-22. It

thus suffices for us to say that, with respect to back pay, the

jury could have found that appellant continued to try to find some

type of work even after applying for Social Security benefits, and

that, as to compensatory harm, the amount awarded was not grossly

disproportionate to the non-pecuniary losses to which appellant

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testified. In short, there was no abuse of discretion in the

district court's denial of Pratt's motion.

For the foregoing reasons, the judgment of the district court

is affirmed in its entirety.

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