                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 11-2009
                                       No. 11-2066
                                      ____________

                      BONNIE MARCUS; ROMAN WYPART;
                  ERNEST SENDEROV; MARY ELLEN CALLAGHAN

                                            v.

                                   PQ CORPORATION,
                                            Appellant in 11-2009

                      BONNIE MARCUS; ROMAN WYPART;
                 ERNEST SENDEROV; MARY ELLEN CALLAGHAN,

                                            v.

                                   PQ CORPORATION,

                                                 Bonnie Marcus,
                                                 Roman Wypart,
                                                   Appellants in 11-2066
                                      ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 2-07-cv-02075)
                      District Judge: Honorable John P. Fullam
                                    ____________

                          Argued December 6, 2011
       Before: HARDIMAN, BARRY, and VAN ANTWERPEN, Circuit Judges.

                                 (Filed: January 19, 2012)

Scott B. Goldshaw [Argued]
Katie R. Eyer
Salmanson Goldshaw
1500 John F. Kennedy Boulevard
Two Penn Center, Suite 1230
Philadelphia, PA 19102-0000
             Attorneys for Plaintiff-Appellee, Bonnie Marcus
             Attorneys for Plaintiff-Non-Participating, Mary Ellen Callaghan, and
             Ernest Senderov
             Attorneys for Plaintiff-Appellee, Roman Wypart


Peter J. Ennis
Buchanan Ingersoll & Rooney
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA 15219-0000

Elizabeth A. Malloy [Argued]
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102-2555
              Attorneys for Defendant-Appellant

James M. Tucker
Equal Employment Opportunity Commission
5NW10P
131 M Street, N.E.
Washington, DC 20507
             Attorneys for Not Party-Amicus Appellee, EEOC

                                    ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.

      Bonnie Marcus and Roman Wypart (collectively, Plaintiffs) sued their former

employer, PQ Corporation (PQ), for violating the Age Discrimination in Employment

Act (ADEA) of 1967, 29 U.S.C. §§ 621–634. A jury ruled in Plaintiffs‟ favor, awarding

                                           2
substantial damages that were remitted by the District Court. PQ appeals the judgment,

claiming it is entitled to either judgment as a matter of law or a new trial. Plaintiffs filed

a cross-appeal challenging the District Court‟s denial of their post-verdict motion to mold

the judgment to incorporate prejudgment interest and to account for negative tax

consequences.

                                               I

       Because we write for the parties, who are well acquainted with the case, we recite

only the essential facts and procedural history.

                                              A

       Plaintiffs worked for PQ, a chemicals company, when it was purchased in

February 2005. Following the acquisition, new CEO Mike Boyce implemented a

reduction in force (RIF) with the help of several PQ managers, including John Lau,

Michael Imbriani, Rosalyn Kutchins, and Colleen DelMonte. Lau was Marcus‟s boss,

who was in turn Wypart‟s supervisor. Thirty employees were laid off in May 2005, eight

of whom (including Plaintiffs) worked in the Research and Development Department

(R&D). The Corporate Development Program (CDP) funded certain projects in R&D.

                                              B

       Plaintiffs and two other former employees sued PQ for age discrimination under

the ADEA and state law. Because the first jury could not agree on a verdict as to

Plaintiffs, the case was tried a second time. After a seven-day trial, the jury returned a

verdict in their favor, awarding Marcus $1,335,806 in lost wages and $1,500,000 in
                                               3
emotional distress damages, and awarding Wypart $566,636 in lost wages and

$2,000,000 for his emotional distress. The District Court entered a corresponding

judgment.

       Plaintiffs moved to amend the judgment to include liquidated damages and later to

mold the verdict to include prejudgment interest and to account for negative tax

consequences. PQ moved for judgment as a matter of law, a new trial, or remittitur. The

District Court granted Plaintiffs‟ motion to amend, denied their motion to mold, and

granted in part and denied in part PQ‟s motion. Specifically, the District Court found that

the emotional distress damages “shock[] the conscience,” and offered a remittitur of

$50,000 to Marcus and $100,000 to Wypart, but it denied the motion in all other respects.

Plaintiffs accepted the remittitur and the parties timely filed notices of appeal.1

                                              II

       PQ challenges the jury instructions, the sufficiency of the evidence, and the

impartiality of the jury. “We review the District Court‟s refusal to give specific jury

instructions for abuse of discretion, but exercise plenary review over whether the District

Court gave a correct statement of law in its jury instructions.”2 United States v.



       1
        The District Court had jurisdiction over the ADEA claim under 28 U.S.C. § 1331
and over the state-law claim pursuant to 28 U.S.C. § 1367. We have jurisdiction under
28 U.S.C. § 1291.
       2
        Plaintiffs claim most of the jury instructions are reviewable only for plain error
because PQ did not object to them. Because the District Court deviated from Federal
Rule of Civil Procedure 51, we are not persuaded that such limited review would be
                                              4
Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (citing United States v. Jimenez, 513 F.3d

62, 74 (3d Cir. 2008)). We scrutinize the denial of a motion for judgment as a matter of

law de novo, viewing the evidence in the light most favorable to the prevailing party.

McKenna v. City of Phila., 649 F.3d 171, 176 (3d Cir. 2011). Finally, we review for

abuse of discretion the decision not to grant a new trial requested because of jury passion

and prejudice. Evans v. Port Auth., 273 F.3d 346, 351–52 (3d Cir. 2001).

                                               A

       In examining any jury instruction, “[w]e must determine whether, taken as a

whole, the instruction properly apprised the jury of the issues and the applicable law.”

Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir. 2009) (citing Dressler

v. Busch Entm’t Corp., 143 F.3d 778, 780 (3d Cir. 1998)). “[A] mistake in a jury

instruction constitutes reversible error only if it fails to „fairly and adequately‟ present the

issues in the case without confusing or misleading the jury.” Id. at 79 (quoting United

States v. Ellis, 156 F.3d 493, 498 n.7 (3d Cir. 1998)). “The trial judge is permitted

considerable latitude to summarize and comment upon the evidence, provided that the

jury is neither confused nor misled.” Id. (citing Am. Home Assurance Co. v. Sunshine

Supermarket, Inc., 753 F.2d 321, 327 (3d Cir. 1985)).




appropriate. In any event, the distinction is immaterial because PQ‟s arguments all fail
under the more liberal plenary standard.
                                               5
       PQ first asserts that the jury instructions did not accurately convey the “but-for”

causation requirement of the ADEA as set forth in Gross v. FBL Financial Services, Inc.,

129 S. Ct. 2343 (2009). In Gross, the Supreme Court held that

       a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must
       prove, by a preponderance of the evidence, that age was the “but-for” cause
       of the challenged adverse employment action. The burden of persuasion
       does not shift to the employer to show that it would have taken the action
       regardless of age, even when a plaintiff has produced some evidence that
       age was one motivating factor in that decision.

129 S. Ct. at 2352.

       The jury instructions at issue on appeal undoubtedly captured this burden. The

District Court‟s instructions mentioned “but-for” or “because of” no fewer than four

times. At other points in the instructions, the District Court properly explained that age

must have been a “decisive” or “determinative” factor in the decision to terminate

Plaintiffs, verbiage that expresses but-for causation. Additionally, the verdict slip asked

the jury whether “age was a „but for‟ cause of PQ‟s decision.” While some language in

the instructions, read in isolation, strayed from the stringent but-for standard, we will not

reverse unless the instructions as a whole fail to correctly state the burden of proof. Read

together, these instructions were not deficient.

       Next, PQ contends that following the Supreme Court‟s decisions in Gross and

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the District Court should not have




                                              6
delivered a “cat‟s paw”3 instruction in an ADEA case.4 Before Staub, we allowed a

plaintiff to pursue an ADEA claim under a cat‟s paw theory. Abrams v. Lightolier Inc.,

50 F.3d 1204, 1214 (3d Cir. 1995); see Abramson v. William Paterson Coll. of N.J., 260

F.3d 265, 285–86 (3d Cir. 2001) (citing Abrams, 50 F.3d at 1214) (“Under our case law,

it is sufficient if those exhibiting discriminatory animus influenced or participated in the

decision to terminate.”). Staub has not disturbed that precedent.

       In Staub, the plaintiff sued his former employer under the Uniformed Services

Employment and Reemployment Rights Act (USERRA) of 1994, 38 U.S.C. §§ 4301–

4335, on a cat‟s paw theory. The Supreme Court evaluated the theory with traditional

tort-law concepts of proximate cause, observing that “the ultimate decisionmaker‟s

exercise of judgment [does not] automatically render[] the link to the supervisor‟s bias

„remote‟ or „purely contingent.‟ The decisionmaker‟s exercise of judgment is also a

proximate cause of the employment decision, but it is common for injuries to have

multiple proximate causes.” 131 S. Ct. at 1192 (citing Sosa v. Alvarez-Machain, 542

U.S. 692, 704 (2004)). The Court held: “[I]f a supervisor performs an act motivated by



       3
          A “cat‟s paw” or “subordinate bias” theory of liability is “one in which [the
plaintiff seeks] to hold his employer liable for the animus of a nondecisionmaker.”
McKenna, 649 F.3d at 177–78 & n.6; accord Staub, 131 S. Ct. at 1190 & n.1.
       4
         Plaintiffs dispute whether the cat‟s paw instruction was given. We think it was.
Following a sidebar during the jury instructions in which Plaintiffs‟ counsel requested a
cat‟s paw instruction, the Court told the jury: “[I]f you conclude that an employee who‟s
had a role in the final decision to terminate the plaintiffs, was shown to have been
inclined to discriminate on the basis of age, that would be an important factor to
                                              7
antimilitary animus that is intended by the supervisor to cause an adverse employment

action, and if that act is a proximate cause of the ultimate employment action, then the

employer is liable under USERRA.” Id. at 1194 (footnote omitted).

       We do not understand Staub to bar the application of a cat‟s paw theory in an

ADEA case. Although USERRA imposes a more lenient causation requirement than

does the ADEA,5 Staub is a case about proximate cause as it relates to principles of

agency and vicarious liability. To have a viable claim under either statute using a cat‟s

paw theory, a plaintiff must surmount both the causation and vicarious liability hurdles.

This will be more difficult in an ADEA case than in a case arising under USERRA or

Title VII, but that is because of Gross, not Staub. Simply put, “the underlying principles

of agency upon which subordinate bias theories are based apply equally to all types of

employment discrimination.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 949–50

(10th Cir. 2011) (noting that an ADEA plaintiff may rely on a subordinate bias theory

after Staub). Given that Plaintiffs argued to the jury that DelMonte, Kutchins, and

Imbriani took actions to induce Boyce to terminate them, the cat‟s paw instruction was

proper.




consider.” Given the evidence presented, we believe the jury would have understood this
instruction to empower it to hold PQ liable on a theory of subordinate bias.
        5
          “Unlike Title VII and the USERRA, „the ADEA‟s text does not provide that a
plaintiff may establish discrimination by showing that age was simply a motivating
factor,‟ the operative phrase relied upon in Staub.” Simmons v. Sykes Enters., Inc., 647
F.3d 943, 949 (10th Cir. 2011) (quoting Gross, 129 S. Ct. at 2349).
                                             8
       PQ also asserts that the District Court should have given a business-judgment

instruction. We find this argument unpersuasive because the District Court twice told the

jury that PQ had the legal right to make certain business decisions. In particular, the

District Court instructed that it was “perfectly legal for an employer . . . to decide to

shake up the personnel” and that “the defendant had a right to hire and fire its employees

whenever they [sic] wanted to, as long as they [sic] didn‟t do it because of age.” This

language sufficed to inform the jury that it could not hold PQ liable simply because it

disagreed with PQ‟s decision to fire Plaintiffs, which is the essence of any business-

judgment charge. PQ was not entitled to any particular language, so long as the

instruction correctly described the law, and it did so here.

       Finally, PQ takes issue with the impartiality of the District Court. Having

reviewed the instructions and PQ‟s various objections, we find that none were unduly

prejudicial. District courts have substantial latitude to comment on the evidence to assist

the jury. Here, none of the District Court‟s statements undermined the jury‟s duty to

weigh the evidence. See United States v. Olgin, 745 F.2d 263, 268–69 (3d Cir. 1984)

(discussing the factors that inform whether a charging remark is unduly influential).

       For the reasons stated, PQ‟s challenges to the jury instructions are without merit.

                                              B

       PQ next contends that the District Court erred in denying its motion for judgment

as a matter of law. We are unpersuaded because Plaintiffs introduced considerable

evidence from which the jury could infer discrimination. See Smith v. City of Allentown,
                                               9
589 F.3d 684, 689–91 (3d Cir. 2009) (describing the burden-shifting framework of an

ADEA claim). For example, Plaintiffs showed how PQ‟s proffered reason for the

terminations changed over time. They also introduced evidence that, of the employees

who held the same title as Plaintiffs, all of those fifty-five and older were fired in the RIF

while all of those under fifty-five were retained. They proffered expert testimony that

this pattern was statistically significant, even when controlling for PQ‟s business

explanations. Moreover, Marcus testified that Lau told her before the RIF that older

employees would be its focus. Finally, Plaintiffs presented circumstantial evidence of

ageism at PQ in the form of verbal comments made by Kutchins and Imbriani.

       Although PQ is correct that the jury could have devalued this evidence in favor of

PQ‟s nondiscriminatory justification, the jury was not required to do so. The evidence

presented was more than sufficient to support an inference of age discrimination, and the

motion for judgment as a matter of law was appropriately denied.

                                              C

       PQ‟s final argument on appeal is that the jury made a substantial award of

emotional distress damages in the absence of serious harm. According to PQ, this shows

that the jury acted out of passion and prejudice, which would entitle it to a new trial.

       “A new trial is warranted based „upon [a] showing that the jury verdict resulted

from passion or prejudice.‟” Evans, 273 F.3d at 352 (alteration in original) (quoting

Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 114 (3d Cir. 1999)) (internal quotation

marks omitted). However, the “size of the award alone [is not] enough to prove prejudice
                                              10
and passion.” Id. (alteration in original) (internal quotation marks omitted). If the award

is excessive, but did not result from passion or prejudice, remittitur (like the one granted

here) is the proper remedy. See Hurley, 174 F.3d at 114.6

       PQ argues that in addition to the size of the award, the errors in the jury

instructions and the fact that the jury deliberated for less than three hours prove passion

and prejudice. The first contention is unpersuasive because the instructions were not

erroneous. See Evans, 273 F.3d at 352 (“Because we have rejected the allegations of

error upon which the Port Authority bases its impartiality argument, we reject as well the

Port Authority‟s argument that the alleged errors tainted the jury‟s verdict.”). Nor does

the length of the deliberation here show passion and prejudice. Three hours was not

insufficient for the jury to reach a reasoned decision. See Paoletto v. Beech Aircraft

Corp., 464 F.2d 976, 983 (3d Cir. 1972) (“[T]he brevity with which a jury reaches its

verdict does not, standing alone, substantiate a claim of capriciousness, even where the

total time of deliberation is substantially less than the [40 minutes the] jury required in

this case.”); see also Wilburn v. Eastman Kodak Co., 180 F.3d 475, 476 (2d Cir. 1999)

(per curiam) (“A jury is not required to deliberate for any set length of time. Brief

deliberation, by itself, does not show that the jury failed to give full, conscientious or

impartial consideration to the evidence.”).


       6
         PQ asks us to distinguish the present case because the jury‟s award is
compensatory, and not punitive like the award in Hurley. Evans forecloses this
distinction because that case involved a compensatory award and applied the same rule
nonetheless. See 273 F.3d at 351–52.
                                              11
       For the reasons stated, we reject PQ‟s claims of error.

                                             III

       Plaintiffs‟ cross-appeal presents two issues, both of which relate to the District

Court‟s refusal to mold the verdict. We review the District Court‟s denial of prejudgment

interest and refusal to modify the verdict to reflect tax consequences for abuse of

discretion. Pignataro v. Port Auth., 593 F.3d 265, 273 (3d Cir. 2010) (citing Thabault v.

Chait, 541 F.3d 512, 533 (3d Cir. 2008)) (prejudgment interest); Eshelman v. Agere Sys.,

Inc., 554 F.3d 426, 443 (3d Cir. 2009) (tax consequences).

       “„[I]n the absence of an explicit congressional directive, the awarding of

prejudgment interest under federal law is committed to the trial court‟s discretion‟ and

should be awarded based on considerations of fairness.” Pignataro, 593 F.3d at 273–74

(alteration in original) (quoting Brock v. Richardson, 812 F.2d 121, 126 (3d Cir. 1987)).

Because they usually serve to make a plaintiff whole, we “favor[] permitting prejudgment

interest awards,” William A. Graham Co. v. Haughey, 646 F.3d 138, 144 (3d Cir. 2011)

(emphasis removed), and therefore generally apply “a strong presumption in favor of

awarding prejudgment interest,” Booker v. Taylor Milk Co., 64 F.3d 860, 868 (3d Cir.

1995). An abuse of discretion occurs when a district court deviates from this policy

without a reasoned explanation. See Pignataro, 593 F.3d at 274 (“If prejudgment interest

is denied, the District Court must explain why the usual equities in favor of such interest

are not applicable.”); Booker, 64 F.3d at 868 (“[A] district court may exercise its


                                             12
discretion to depart from this presumption only when it provides a justification that

reasonably supports the departure.”).

       Similar principles inform the tax-consequences analysis:

       [A]n award to compensate a prevailing employee for her increased tax
       burden as a result of a lump sum award will, in the appropriate case, help to
       make a victim whole. This type of an award, as with prejudgment interest,
       represents a recognition that the harm to a prevailing employee‟s pecuniary
       interest may be broader in scope than just a loss of back pay. Accordingly,
       either or both types of equitable relief may be necessary to achieve
       complete restoration of the prevailing employee‟s economic status quo and
       to assure “the most complete relief possible.”

Eshelman, 554 F.3d at 442 (quoting Local 28 of Sheet Metal Workers’ Int’l Ass’n v.

EEOC, 478 U.S. 421, 465 (1986)). But there is no presumption in favor of an adjustment

for negative tax consequences. Id. at 443 (stating that district courts “should grant relief

„in light of the circumstances peculiar to the case‟” (quoting Albemarle Paper Co. v.

Moody, 422 U.S. 405, 424 (1975))).

       The District Court‟s only explanation for the denial of prejudgment interest, in a

single sentence, was that the liquidated damages provision of the ADEA is sufficient to

compensate Plaintiffs. Yet we have held that prejudgment interest may be awarded in an

ADEA case involving a willful violation, reasoning that the punitive award of liquidated

damages serves a different purpose than, and therefore does not preclude, the

compensatory award of prejudgment interest. Starceski v. Westinghouse Elec. Corp., 54

F.3d 1089, 1101–03 (3d Cir. 1995). Thus, although the District Court did not explicitly

hold that it could not award prejudgment interest, it failed to recognize the presumption

                                             13
in favor of prejudgment interest and offer a valid reason for departing from it.

Consequently, the District Court‟s “decision rests upon . . . an errant conclusion of law.”

EEOC v. Kronos Inc., 620 F.3d 287, 296 (3d Cir. 2010) (internal quotation marks

omitted). We reach a similar conclusion with respect to the issue of negative tax

consequences, even though there is no presumption in favor of an adjustment to account

for them, because the District Court did not acknowledge the differing interests in

compensation and punishment.

                                            IV

       For the foregoing reasons, we will affirm the District Court‟s March 23, 2011

judgment, we will vacate in part the District Court‟s February 17, 2011 order to the

extent that it denies a modification of the judgment to incorporate prejudgment interest

and to account for negative tax consequences, and we will remand the case so that the

District Court may consider Plaintiffs‟ arguments under the correct legal standard.




                                             14
