SUPREME COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX APPELLATE DIVISION

No. 2019-0047

LIAT (1974), LTD.

(Appellant)

vs.

WILLIAM CHERUBIN

(Appellees)

(SX-17-CV-62)

On Appeal From The Superior Court of the Virgin Islands

Division of St. Croix

APPELLEE BRIEF OF WILLIAM CHERUBIN

Vincent Colianni II Colianni & Colianni 2120 Company Street Christiansted, VI 00820 Telephone: (340) 719-1766 Facsimile: (340) 719-1770

08/09/2019

TABLE OF CONTENTS

TABLE OF CITATIONS ...................................................................

i-ii

STATEMENT OF JURISDICTION ..................................................

1

STATEMENT OF ISSUES ................................................................

1

STATEMENT OF THE CASE ..........................................................

1

STATEMENT OF RELATED CASES AND PROCEEDINGS .......

2

STATEMENT OF FACTS .................................................................

2-11

STANDARD OF REVIEW ...............................................................

11-12

SUMMARY OF ARGUMENT .........................................................

12-14

ARGUMENT .....................................................................................

14-26

CONCLUSION ..................................................................................

26

CERTIFICATIONS ...........................................................................

27-28

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TABLE OF CITATIONS PAGE Cases

Allen v. Hovensa, L.L.C., 59 V.I. 430, 434 (V.I. 2013)…………………..

1

Anderson v. Am. Airlines, 352 F. App'x 182, 182–83 (9th Cir. 2009)…… 23

Antilles Sch., Inc. v. Lembach, 64 V.I. 400, 408 (V.I. 2016)…………….. 15, 20, 25

Benny M. Estes & Assocs., Inc. v. Time Ins. Co., 980 F.2d 1228, 1235 (8th Cir. 1992)…………………………………………………………….

20

Chestnut v. Goodman, 59 V.I. 467, 475 (V.I. 2013)…………………….. 12, 15

Corriette v. Morales, 50 V.I. 202, 205 (V.I. 2008)……………………….

10

Curley v. Klem, 499 F.3d 199, 205–06 (3d Cir. 2007)…………………… 12

Escue v. N. OK Coll., 450 F.3d 1146, 1156 (10th Cir. 2006)…………….

15

Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 574 (3d Cir. 2002)… 22

Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 775 (3d Cir. 1987)………….. 24, 25

Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989)….. 26

Merriweather v. Family Dollar Stores, 103 F.3d 576, 580 (7th Cir.1996). 25

Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988)… 22

Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493e, 503, 513–14 (9th Cir. 2000)………………………………………..

24

Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)………………………

15

Machinchick v. PB Power, Inc., 398 F.3d 345, 351 (5th Cir. 2005)……...

16

Madel v. FCI Mktg., Inc., 116 F.3d 1247, 1252 (8th Cir. 1997)………. 19

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Payne v. Jones, 711 F.3d 85, 97 (2d Cir. 2013)…………………………..

20

Ridout v. JBS USA, LLC, 716 F.3d 1079, 1086 (8th Cir. 2013)…………..

16

Segal v. Gilbert Color Systems, Inc.,746 F.2d 78, 81 (1st Cir. 1984)…….

26

Sheriff v. Midwest Health Partners, P.C., 619 F.3d 923, 932 (8th Cir. 2010)………………………………………………………………………

26

Tuli v. Brigham & Women's Hosp., 656 F.3d 33 (1st Cir. 2011)…………

23

Restatements

Virgin Islands Civil Rights Act, 10 V.I.C. § 64(1) ………………………

3, 10

Virgin Islands Civil Rights Act, 10 V.I.C. § 64(1)(a) ……………………

1, 2, 3, 10, 13, 15, 16

Virgin Islands Civil Rights Act, 10 V.I.C. § 64(15) ……………………..

3, 5, 16

Virgin Islands Rule of Civil Procedure 50(a) ……………………………

3, 14

Virgin Islands Rule of Civil Procedure 50(b)……………………………

3, 12, 14

Virgin Island Rule of Civil Procedure 59………………………………...

1, 3, 19, 20

4 V.I.C. § 32(a)……………………………………………………………

1

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STATEMENT OF JURISDICTION

This is an appeal from the Superior Court’s denial of appellant Liat

(1974), Ltd.’s motion for judgment as a matter of law and motion for a new

trial following a jury verdict in favor of appellee William Cherubin. The

Superior Court entered final judgment on February 8, 2019.

This Court has jurisdiction over all appeals arising from final

judgments, final decrees or final orders of the Superior Court.” 4 V.I.C. §

32(a). Therefore, this Court has jurisdiction over this appeal. Allen v.

Hovensa, L.L.C., 59 V.I. 430, 434 (V.I. 2013).

STATEMENT OF THE CASE

William Cherubin sued Liat for age discrimination under the Virgin

Islands Civil Rights Act (“VICRA”), 10 V.I.C. § 64(1)(a). On February 5,

2019, the case was tried to a jury, the Hon. Douglas Brady presiding. The

jury returned a verdict in favor of Cherubin and awarded him $1,550,320 in

compensatory damages. The Superior Court later denied Liat’s post-

judgment motions for judgment as a matter of law and for a new trial.

STATEMENT OF THE ISSUES PRESENTED FOR APPEAL

Liat fired William Cherubin after more than 45 years of loyal service.

Liat made up false reasons for the firing as a cover for age discrimination.

The jury found for Cherubin on his age discrimination claim and awarded

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him $1,550,320 in compensatory damages. The Superior Court denied

Liat’s post-trial motions for judgment as a matter of law and for a new trial.

The following issues arise.

Whether the Superior Court erred in denying Liat’s renewed motion

judgment as a matter of law under Virgin Islands Rule of Civil Procedure

50(b).

Whether there was sufficient evidence adduced at trial to support the

jury’s verdict in favor of William Cherubin on his age discrimination claim

under 10 V.I.C. §64(1).

Whether the trial court abused its discretion in denying Liat’s motion

for a new trial under Rule 59 and in finding that the jury’s damages award

was not so excessive so as to violate the Due Process Clause of the Fifth or

Fourteenth Amendments.

STATEMENT OF RELATED CASES OR PROCEEDINGS

There are no related cases or proceedings.

STATEMENT OF FACTS

A. Procedural History

This case arises out Liat’s termination of William Cherubin’s

employment as the manager of its operations at the Henry Rohlsen Airport

on St. Croix. Cherubin alleged that on June 4, 2015, Liat fires him because

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of his age in violation of the VICRA, 10 V.I.C. § 64(1)(a). Section 64

provides that victims of age discrimination are entitled to recover

compensatory and punitive damages. 10 V.I.C. § 64(15).

On February 4, 2019, the case was tried to a jury. At the close of

Cherubin’s case, Liat moved for judgment as a matter of law under Virgin

Islands Rule of Civil Procedure 50(a) on two grounds: (1) that there was

insufficient evidence for a reasonable jury to find Liat fired Cherubin

because of his age, and (2) that there was insufficient evidence to support

Cherubin’s punitive damage claim. The Court denied Liat’s motion as to

Cherubin’s age discrimination claim, but granted Liat’s motion concerning

Cherubin’s claim for punitive damages.

On February 5, 2019, the jury returned a verdict for Cherubin. The

jury found that Liat fired Cherubin because of his age in violation of

§64(1)(a). The jury awarded Cherubin compensatory damages in the

amount of $1,550,320.

On February 8, 2019, the Superior Court entered judgment in favor of

Cherubin for $1,550,320. On May 13, 2019, the Superior Court denied

Liat’s renewed motion for judgment as a matter of law under Virgin Islands

Rule of Civil Procedure 50(b) and motion for a new trial under Virgin

Island Rule of Civil Procedure 59.

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B. The Evidence Introduced at Trial

The following evidence was introduced at trial.

1. Cherubin’s 45 years of service

Liat is a regional commercial airline serving the Caribbean. In 1968,

Liat hired Cherubin as a ticket agent. JA 84: 13; JA 85: 1-3. Liat routinely

promoted Cherubin to various positions with increased responsibilities. In

1976, Cherubin was promoted to Country Manager for the U.S. Virgin

Islands. JA 43: 17-19; JA 151: 7-9; JA 85: 14-16. By all accounts, Cherubin

was a loyal and devoted manager and highly regarded by customers and

fellow employees. JA 73: 7-11.

2. The March 2015 letters

In March 2015, Liat sent two letters to Cherubin, both reprimanding

him for violations of company policy that occurred between December 2014

and February 2015. The first letter, dated March 3, reprimands Cherubin

for cashing a customer’s check with Liat’s funds in December 2014. JA 254.

The letter warns Cherubin that he will be suspended for seven days “t.in the

event of a repetition” of the conduct. Id.

The second letter, dated March 5, 2015, takes Cherubin to task for not

timely submitting daily sales reports. JA 257. The letter also chastises

Cherubin for a shortfall in Liat’s cash receipts. The shortfall occurred

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because a company called Worldwide Flight Services did not pay the full

amount it owed to Liat. JA 89: 13-17. Liat blamed Cherubin for Worldwide

Flight’s failure to pay and actually demanded that Cherubin personally pay

the amount owed by Worldwide Freight. JA 93: 13-17. The March 5 letter

demands that Cherubin “provide full reimbursement of the missing funds

in the amount of US $1,190.00 by March 31, 2015.” Id. The letter

concludes by warning Cherubin that he will be subject to further

disciplinary action, including possible termination, “[i]n the event of a

repetition following receipt of this written warning.” JA 259.

Fearing he would be fired if he didn’t, Cherubin paid Liat $1,190,for

the Worldwide shortfall from his own funds on April 14, 2015. JA 61: 5-10;

JA 114: 4-17. Liat accepted the payment and did not mention that it was

paid two weeks after the arbitrary March 31 deadline set forth in the March

5 letter. JA 61: 11-17.

Liat admitted at trial that Cherubin never repeated the conduct

described in the March 3 and March 5 letters. Allison Benjamin, a Liat

manager and its 30(b)(6) corporate representative, testified that Cherubin

did not repeat any of the conduct for which he was reprimanded in the

March 3 and March 5 letters:

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Q. But you just testified, Ms. Benjamin, that he did not repeat the

conduct he was warned about in the March 3rd letter, correct?

A. Yes, correct.

Q. He did not repeat the conduct he was warned about in the March

5th letter, correct?

A. Yeah.

JA 59: 14-20.

3. The June 4, 2015 termination letter

On June 4, 2015, Liat abruptly fired Cherubin and had him escorted

off the premises. JA 43: 2-12. Cherubin was 71 at the time he was fired. JA

84: 1.

In Cherubin’s termination letter dated the same day, Liat stated that

it was firing Cherubin for the very same incidents it had warned him about

in the March 3 and March 5 letters, even though Cherubin had not repeated

the conduct described in those letters. JA 270 to 272. Allison Benjamin

confirmed in her trial testimony that Liat fired Cherubin for the same

conduct he was warned about in the March letters:

Q. Ms. Benjamin, that [June 4 termination letter] doesn’t cite any

additional — any violations in addition to the ones that he was reprimanded

for in March; isn’t that true?

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A. No other violation.

Q. True?

A. Yeah.

JA 60: 3-8.

4. Liat’s early-retirement offer for employees under the age of 65

One month before Cherubin's termination, on May 5, 2015, Liat had

announced a company-wide downsizing and offered its Virgin Islands

employees the opportunity to apply for early retirement, or risk facing

“compulsory redundancies.” JA 62: 13-18. The retirement package offered

one month of salary for each year of employment. JA 301-302. As Allison

Benjamin testified, however, Cherubin was not eligible for the retirement

package. The reason - he was too old:

Q. Can you turn to Page 29, please? And if you look at the Line 9, it’s

stated above,” So in Mr. Cherubin’s case, since he was over 65 at the time,

he would have been eligible for one month’s pay for each year of service?

Answer, your answer: This memo is speaking to persons who are before the

age of 65. Question: Okay. So if he was older than 65 what compensation

would he have been entitled to? Answer: If he was, if he had elected to, I’m

not too sure what the company’s decision was because he was over 65.”

That’s your answer, correct?

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A. Yeah.

JA 64: 14-25.

Liat’s employee handbook states that employees are expected to retire

at 65. JA 273; JA 155: 13-15.

5. Evidence of damages

At trial, Cherubin presented evidence that he suffered lost income of

$82,000 that he would have earned during the period between his

termination in June 2015 and March 2017, when Liat discontinued its

operations on St. Croix. JA 101: 11-20; JA 102: 5-13.

As for noneconomic damages, Alvin Canaii and William Bohlke, Jr.

testified that Cherubin suffered — and continues to suffer - significant

emotional pain and suffering, and that he has not been the same person

since his termination.

Canaii, a long-time friend and relative who spent time with Cherubin

“very, very, very regularly,” multiple times per week, testified that “you

could not ask for a more loyal employee than [Cherubin].” JA 73: 9-10.

Canaii stated that Cherubin “never thought that after devoting 45 plus years

and given that company dedicated service, sometimes neglecting his own

family to take care of their business, that they would have treated him like

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that. You could see that he was visibly shaken. I would say more than

shaken. He was visibly broken.” JA 75: 11-16.

Canaii also testified that after the termination, he visited Cherubin

regularly, finding him “almost in a daze mumbling to himself.... It shattered

him. He was totally demoralized. He did not even want to leave his house

for several days... he became very sluggish afterwards.... And from then on,

you know, I just never seen him bounce back to the same person he was,

always smiling, always had a decent composure. You couldn't ask for a

more respectable person than Mr. Cherubin. And he's never been the same

person from that day.” JA 75: 17-25 to 76: 1-8.

Bohlke, who operates Bohlke International Airways at the Henry

Rohlsen Airport, testified that he has “known [Cherubin] since 1971 or '72.”

JA 129: 6-23. During the 70's and 80's, when he wasn't flying off island,

Bohlke saw Cherubin “probably every day. Bill Cherubin, his job was Liat

and that was synonymous with who he was. That was his responsibility and

he took it his whole life as a Liat manager.” JA 130: 6-15. Asked whether he

noticed any changes in Cherubin's mental or emotional state after his

termination, Bohlke testified: “Absolutely. He was stressed out, just

completely - he wasn't himself. Mr. Cherubin was in his 70's, early 70's, at

that time and it just devastated him mentally.” JA 131: 4-9.

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Cherubin testified about the shame, humiliation and sense of betrayal

he suffered as a result of the firing: “It was a surprise because I did not

expect this kind of thing should come to me after my years of service and

what I do for the company.” JA 97: 22-24. When asked how he felt when he

was fired, Cherubin responded: “I cannot even explain to you. It is terrible.

It's like a bombshell. I wasn't expecting anything like that to happen to me.”

JA 99: 11-15. Cherubin broke down in tears on the witness stand as he

testified. “For the respect I have in this community, it was a shame for me

to face them and my family. I could not go out as I wanted.” JA 99: 21-23.

6. The verdict

At the close of the evidence, the court instructed the jury, without

objection, on the elements of an age discrimination claim under 10 V.I.C. §

64(1):

“In this particular case, Mr. Cherubin must prove all the elements of

his claim of age discrimination pursuant to Section 64 of the Virgin Islands

Civil Rights Act by a preponderance of the evidence. He must prove the

following elements: That Liat was Mr. Cherubin’s employer; that Liat

terminated Mr. Cherubin from his employment; that Liat’s basis for

terminating Mr. Cherubin was his age; and that Mr. Cherubin suffered

damages as a result.” JA 243: 12-21.

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The Superior Court also gave a pretext instruction without objection:

“Liat has given nondiscriminatory reasons for its decision to terminate

William Cherubin. If you disbelieve Liat’s explanation for its decision then

you may but you are not required to find that Liat terminated Mr. Cherubin

because of his age.” JA 243: 22-25 to 244: 1.

Pointing to the pretext instruction, Cherubin’s counsel argued in

closing that Liat's proffered reasons for terminating Cherubin were

pretextual, and that the actual reason for his termination was that he was 71

years old, Liat’s oldest employee, and beyond the expected retirement age

of 65 years set forth in Liat’s employee handbook. JA 215: 3-4; JA 218: 18-

25 to 219: 1-4.

The jury returned a verdict in favor of Cherubin on his age

discrimination claim, finding that Liat violated §64(1)(a) by terminating his

employment because of his age. It awarded him $1,550,320 in

compensatory damages. JA 410.

STANDARD OF REVIEW

The standard of review for this Court's examination of the Superior

Court's application of law is plenary, while the Superior Court's factual

findings are reviewed for clear error. Corriette v. Morales, 50 V.I. 202, 205

(V.I. 2008).

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This Court reviews de novo a Superior Court's decision to grant or

denial of a Rule 50(b) motion for judgment as a matter of law, applying the

same standards as the Superior Court. Chestnut v. Goodman, 59 V.I. 467,

475 (V.I. 2013).

The standard of review on a motion for a new trial is abuse of

discretion, except where a trial court bases its denial of the motion on an

application of law, in which case this Court's review is plenary. Curley v.

Klem, 499 F.3d 199, 205–06 (3d Cir. 2007).

SUMMARY OF ARGUMENT

This a case involving blatant age discrimination against an employee

who worked for Liat for over 45 years. William Cherubin began working for

Liat in 1968 and served as Liat’s Virgin Islands operations manager since

1976. In June 2015, Liat fired Cherubin without notice and had him

escorted out of his office by a security guard. Cherubin was 71 years old at

the time he was fired.

The reasons Liat gave for firing Cherubin were implausible on their

face — they were an obvious cover for age discrimination. Liat claimed that

it fired Cherubin because he violated company policies on several occasions

between December 2014 and February 2015. But the evidence at trial

proved that Liat had reprimanded Cherubin for the same violations in

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March 2015 and had informed him at that time that he would be

terminated only if he repeated the offending conduct. Liat admitted at trial

that Cherubin never repeated the conduct cited in the March letters.

Nonetheless, it fired him for the very same violations cited in the March

letters.

After hearing the evidence, the jury found that Liat fired Cherubin

because of his age discrimination in violation of the VICRA, 10 V.I.C. §

64(1)(a). As the Superior Court found in denying Liat’s motion for

judgment as a matter of law, there was sufficient evidence to support the

jury’s verdict, including the clear evidence that Liat’s proffered reasons for

the firing made no sense and were false, Liat’s admission that Cherubin was

not eligible for an early retirement package offered to all employees before

his termination because he was too old to qualify, and a statement in Liat’s

employee handbook that the normal retirement age for its employees is 65.

In short, the jury’s decision was supported by the record evidence and there

is no basis for reversing the Superior Court’s denial of Liat’s motion for

judgment as a matter of law.

Liat argues on appeal that the jury damages award of $1,550,320 was

so grossly excessive that violated the due process clause. The Superior

Court rejected this argument in denying Liat’s motion for a new trial. This

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Court should do the same. The amount of the verdict reflected the severe

emotional pain and suffering that Cherubin endured — and continues to

endure — as a result of Liat’s age discrimination. Liat does not come close

to clearing the very high bar of showing that the jury’s damage award was

so grossly excessive that it violates the due process clause.

ARGUMENT

I. THE SUPERIOR COURT DID NOT ERR IN DENYING LIAT’S MOTION FOR JUDGMENT AS A MATTER OF LAW

Liat argues that the Superior Court erred in denying its renewed

motion for judgment as a matter of law because there was insufficient

evidence for the jury to find that Liat fired Cherubin because of his age. Liat

is wrong. The evidence showed beyond doubt that Liat’s reasons for firing

Cherubin were pretextual, and the jury was entitled to infer from the falsity

of Liat’s proffered reasons that Liat fired Cherubin because of his age.

Virgin Islands Rule of Civil Procedure 50(b) allows the trial court to

enter judgment as a matter of law at the conclusion of a jury trial

notwithstanding a jury verdict for the opposing party if the court finds that

a reasonable jury would not have a legally sufficient evidentiary basis to

find for the opposing party. V.I.R. Civ. P. 50(a)(1) &(b). A party is entitled

to judgment as a matter of law when, in considering all of the evidence,

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accepting the nonmoving party's evidence as true, and drawing all

reasonable inferences in favor of the nonmoving party, the court concludes

that a reasonable jury could only find for the moving party. Antilles Sch.,

Inc. v. Lembach, 64 V.I. 400, 408 (V.I. 2016).

“In performing this narrow inquiry, [trial courts and appellate courts]

must refrain from weighing the evidence, determining the credibility of

witnesses, or substituting [their] own version of the facts for that of the

jury.” Chestnut v. Goodman, 59 V.I. 467, 475 (V.I. 2013) see also Escue v.

N. OK Coll., 450 F.3d 1146, 1156 (10th Cir. 2006) (“Judgment as a matter of

law is appropriate only if the evidence points but one way and is susceptible

to no reasonable inferences which may support the nonmoving party's

position.”). Thus, to reverse the Superior Court's denial of Liat’s motion for

judgment as a matter of law, this Court would have to find that the

evidence, construed in the light most favorable to Cherubin, permits only

one reasonable conclusion, and that conclusion is contrary to the jury's

verdict. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

The VICRA provides that “[i]t shall be an unlawful discriminatory

practice ... for an employer, because of age ... to refuse to hire or employ or

to bar or discharge from employment such an individual or to discriminate

against such individual in compensation or in terms, conditions or

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privileges of employment.” 10 V.I.C. § 64(1)(a). The statute protects

individuals over the age of 40, 10 V.I.C. § 64(6)(a), and explicitly provides

for a private right of action. 10 V.I.C. § 64(15).

Here, there was more than sufficient evidence for the jury to find that

Liat fired Cherubin because of his age in violation of 10 V.I.C. § 64(1)(a).

Specifically, the evidence at trial demonstrated that Liat’s explanations for

firing Cherubin were not believable, allowing the jury to infer from the

falsity of these explanations that Cherubin was actually fired because of his

age. See Ridout v. JBS USA, LLC, 716 F.3d 1079, 1086 (8th Cir. 2013)

(”Demonstrating that [defendant’s] reasons are “unworthy of credence”

would support a finding of age discrimination under the ADEA because “a

trier of fact can reasonably infer from the falsity of the explanation that the

employer is dissembling to cover up a discriminatory purpose.”);

Machinchick v. PB Power, Inc., 398 F.3d 345, 351 (5th Cir. 2005)

(“[e]vidence demonstrating the falsity of the defendant's explanation . . . is

likely to support an inference of discrimination even without further

evidence of [the] defendant's true motive.”).

The evidence at trial showed that Liat claims it fired Cherubin on

June 4, 2015, for the same reasons it warned him about in the March 3 and

March 5 letters. Those reasons were cashing a customer’s check with

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company funds, submitting deficient sales reports, and accepting funds

from Worldwide Flight Services that were less than the amount owed. JA

270 to 271.

But the March letters state that Cherubin would be subject to

termination only if he repeated the conduct addressed in those letters —

and the incontrovertible evidence at trial showed that Cherubin did not

repeat the conduct. Allison Benjamin’s testimony made this crystal clear:

Q. But you just testified, Ms. Benjamin, that he did not repeat the

conduct he was warned about in the March 3rd letter, correct?

A. Yes, correct.

Q. He did not repeat the conduct he was warned about in the March

5th letter, correct?

A. Yeah.

JA 43: 14-20.

Thus, there was a sufficient evidentiary basis for the jury to find that

Liat’s explanation that it fired Cherubin for the very same conduct

recounted in the March letters is not believable. Liat’s explanation directly

contradicts Liat’s statements in the March letters that it would fire

Cherubin only if he repeated the conduct described in those letters.

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Moreover, as the jury instructions stated, the jury could infer from

the falsity of Liat’s proffered reasons that it fired Cherubin because of his

age. And that is obviously what the jury inferred here.

Liat also claimed that it fired Cherubin because he failed to timely

reimburse Liat for Worldwide Flight’s cash shortage. JA 271. Cherubin

reimbursed Liat with his own money on April 14, 2015, 15 days after Liat’s

arbitrary deadline. JA 271. But there was more than enough evidence for a

reasonable jury to find that this alleged reason for termination was also

false. If Liat was truly motivated to fire Cherubin for his two-week delay in

paying for Worldwide Flight’s shortage, then it is reasonable to infer that it

would have fired Cherubin either shortly after he missed the payment

deadline, or shortly after he paid the funds on April 14. Thus, the timing of

the firing - almost two months after payment — was sufficient for the jury

to reject this explanation for Cherubin’s termination. And that is precisely

what the jury did.

Finally, besides evidence of pretext, there was additional evidence

adduced at trial from which a reasonable jury could infer that Liat’s

decision to terminate Churubin was the product of age discrimination.

First, Liat’s employee handbook says that 65 is the normal retirement age

for its employees. JA 273; JA 155: 12-14.

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Second, in May 2015, one month before Cherubin was fired, Liat

offered an early retirement package to its employees. The package offered

one month of salary for each year of employment. JA 62: 14-24; JA 301-

302. As Allison Benjamin testified, however, Cherubin was not eligible for

the package because he was over the age of 65 and therefore too old to

qualify. JA 64: 14-25. The exclusion of Cherubin from the early retirement

plan because he was too old is powerful evidence that Liat’s corporate

culture was hostile to older workers. “Evidence of a corporate atmosphere

hostile to older employees “can, if sufficient together with other evidence of

pretext, support a reasonable inference of age discrimination.” Madel v.

FCI Mktg., Inc., 116 F.3d 1247, 1252 (8th Cir. 1997).

In sum, there was sufficient evidence presented at trial for the jury to

find that Liat fired Cherubin because of his age. The Superior Court did not

err in denying Liat’s motion for judgment as a matter of law.

II. THE JURY’S DAMAGES AWARD WAS NOT SO GROSSLY EXCESSIVE AS TO VIOLATE THE DUE PROCESS CLAUSE

The Superior Court denied Liat’s motion for a new trial under Rule

59, rejecting its argument that the damage award of $1,550,320 was

constitutionally excessive. The Superior Court did not abuse its discretion

in denying Liat’s motion for a new trial.

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Under Rule 59 of the Virgin Islands Rules of Civil Procedure, the trial

court may, on motion, grant a new trial if the damage award is excessive or

inadequate. V.I. R. Civ. P. 59(a)(1)(A)(iv).

In Antilles, this Court declined to recognize remittitur in the Virgin

Islands, and held that a jury’s verdict may be altered by a judge only if it is

not supported by sufficient evidence in the record, or if the verdict is so

excessive that a reduction is compelled under the United States

Constitution. 64 V.I. at 439.

Here, as the Superior Court held, there was sufficient evidence to

support the amount of the verdict, and the verdict was not so excessive as to

violate the Due Process Clause.1 That is because the evidence of Cherubin’s

non-economic damages was compelling and substantial.

Albert Canaii and William Bohlke, Jr. both testified that Liat’s

conduct — and Cherubin’s response to it - caused him significant emotional

trauma. Canaii testified that Liat’s actions essentially caused Cherubin to

feel that his whole life had been a mistake. He testified that Cherubin

1 The standard for granting remittitur is when “the verdict represents a monstrous or shocking injustice.” Benny M. Estes & Assocs., Inc. v. Time Ins. Co., 980 F.2d 1228, 1235 (8th Cir. 1992). The due process standard is even more deferential. See Antilles, 400 V.I. at 438 (“Antilles School argues that the award shocks the judicial conscience, and that this Court, after weighing the evidence, should order the verdict reduced. Because this is precisely the type of judicial fact finding and weighing of the evidence that we desire to prevent by declining to recognize remittitur, we reject Antilles School's claim.”); see also Payne v. Jones, 711 F.3d 85, 97 (2d Cir. 2013) (“a federal appellate court is not required to find that the jury's award was so excessive as to violate due process . . . in order to justify setting the award aside”).

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“never thought that after devoting 45 plus years and given that company

dedicated service, sometimes neglecting his own family to take care of their

business, that they would have treated him like that. You could see that he

was visibly shaken. I would say more than shaken. He was visibly broken.”

JA 75: 11-16.

Canaii also testified that the termination “shattered and “totally

demoralized” Cherubin — and that these effects were ongoing. “And from

then on, you know, I just never seen him bounce back to the same person

he was, always smiling, always had a decent composure. You couldn't ask

for a more respectable person than Mr. Cherubin. And he's never been the

same person from that day.” JA 75: 17-25 to 76: 1-8.

Bohlke testified how much Cherubin’s job meant to him. “[H]is job

was Liat and that was synonymous with who he was. That was his

responsibility and he took it his whole life as a Liat manager.” JA 130: 6-15.

Bohlke testified that Cherubin “wasn't himself” since the termination. “Mr.

Cherubin was in his 70's, early 70's, at that time and it just devastated him

mentally.” JA 131: 4-9.

Cherubin himself testified about the betrayal and shame he

experienced as a result of being fired: “It was a surprise because I did not

expect this kind of thing should come to me after my years of service and

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what I do for the company.” JA 97: 22-24. Explaining his response to being

unjustly fired, Cherubin testified: “It is terrible. It's like a bombshell. I

wasn't expecting anything like that to happen to me.” JA 99: 11-15. “For the

respect I have in this community, it was a shame for me to face them and

my family. I could not go out as I wanted.” JA 99: 21-23.

Given this evidence of Cherubin’s severe, profound, and ongoing

emotional pain and suffering, the jury’s damage award was not so grossly

excessive as to violate Liat’s right to due process. In fact, similar awards

have been upheld for emotional pain and suffering resulting from unlawful

employment discrimination under a less exacting standard than due

process.2

For example, in Gagliardo v. Connaught Labs., Inc., 311 F.3d 565,

574 (3d Cir. 2002), the plaintiff was diagnosed with MS and her employer,

CLI, fired her without attempting to reasonably accommodate her

disability. Id at 568. The plaintiff sued CLI for terminating her because of

her disability. The jury awarded her $1.55 million for her mental pain and

suffering. Id. at 573. The plaintiff’s coworkers and family testified that the

firing caused her significant emotional pain and suffering. “The testimony

2 See Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988) (“In order to determine whether a particular award is excessive, courts have found it useful to review awards in other cases involving similar injuries.” ).

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demonstrated the effects of the mental trauma, transforming Gagliardo

from a happy and confident person to one who was withdrawn and ill.” Id.

Based on this testimony, the Third Circuit held the trial court did not abuse

its discretion by allowing the jury's verdict to stand and denying CLI’s

motion for a new trial. Id. at 573-74.

Tuli v. Brigham & Women's Hosp., 656 F.3d 33 (1st Cir. 2011), is also

on point. There, the plaintiff sued her employer, a hospital, for sex

discrimination and retaliation. The jury awarded her $1.6 million in

emotional distress. The plaintiff testified that she experienced anxiety,

anger, fear, and nervousness. She also testified that after years of hard work

and striving, she felt at the end of her career. She explained: “I worked so

hard 20 years, everything I had, this is all my life was day in and day out’

and that everything suddenly ended during a 15-minute meeting in which

she was denied hospital re-credentialing by the hospital. Id. at 44-45. The

plaintiff’s testimony was corroborated by a friend. Id. at 45. Based on this

testimony, the First Circuit refused to reduce the jury’s pain and suffering

award of $1.6 million. Id.

The Ninth Circuit also affirmed a mental pain and suffering award

similar to Churubin’s in another employment discrimination case. In

Anderson v. Am. Airlines, 352 F. App'x 182, 182–83 (9th Cir. 2009), the

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plaintiff sued American Airlines for employment discrimination under the

California Fair Employment and Housing Act. The jury found that

Anderson's perceived mental disability was a motivating reason for her

termination by American, awarding her $1 million in emotional distress

damages and $238,333 in economic damages. The district court denied

American's motion for a new trial. The Ninth Circuit affirmed, holding that

the damages award was supported by the evidence and was not “grossly

excessive” or “monstrous” or “shocking to the conscience.” Id. at 182-83;

see also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d

493e, 503, 513–14 (9th Cir. 2000) (affirming $1 million emotional distress

award for sexual harassment where plaintiff “worried, cried, and felt

trapped and upset,” spent less time with her family, suffered stomach

problems, rashes and headaches, and sought counseling with her pastor).

The above cases show that juries frequently award substantial

damages for mental pain and suffering in employment discrimination

cases. These cases demonstrate that the $1,550,320 award to Cherubin

here was reasonable and certainly not so grossly excessive as to offend due

process.

Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 775 (3d Cir. 1987), does not

help Liat. In that case, the plaintiff sprained her coccyx in fall at a

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supermarket. The jury awarded the plaintiff $900,000 for pain and

suffering. The Third Circuit held that this award was excessive in light of

the plaintiff’s injuries and reduced the award to $235,000 ($386,000 in

2019 dollars).

This case is nothing like Gumbs. The plaintiff in Gumbs suffered a

minor back injury. By contrast, the testimony here is that Liat’s firing

caused Cherubin severe mental anguish and humiliation and essentially

destroyed his life after more than 45 years at Liat.

In addition, Gumbs is a 30-year-old Third Circuit case decided long

before the establishment of the Virgin Islands Supreme Court. This Court

has made it clear that it expects trial courts in the Virgin Islands to give a

jury’s damage award much more deference than the Third Circuit did when

it was the court of last resort in the Virgin Islands. See Antilles, 64 V.I. at

438 (“remittitur is wholly inconsistent with this Court's long-standing

jurisprudence that questions of fact should be resolved by a jury, that a

jury's factual determinations should be respected so long as there is a

sufficient evidentiary basis, and that it is not the role of a judge to weigh the

evidence when it has been submitted to a jury for a determination.”)

Nor is the absence of expert medical testimony in this case of any

moment. Medical evidence, although helpful, is not required to show

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emotional harm. See Merriweather v. Family Dollar Stores, 103 F.3d 576,

580 (7th Cir.1996) (noting that plaintiff's testimony can be enough to

support emotional damages).

Finally, it bears noting that courts have consistently held that “awards

for pain and suffering are highly subjective and should be committed to the

sound discretion of the jury, especially when the jury is being asked to

determine injuries not easily calculated in economic terms. ” Sheriff v.

Midwest Health Partners, P.C., 619 F.3d 923, 932 (8th Cir. 2010);

Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989)

(“translating legal damage into money damages—especially in cases which

involve few significant items of measurable economic loss—is a matter

peculiarly within the jury's ken.”); Segal v. Gilbert Color Systems, Inc.,746

F.2d 78, 81 (1st Cir. 1984) (“This court has consistently declined to play

Monday morning quarterback in reviewing a jury's assessment of

damages.”).

In sum, as the Superior Court held, there was sufficient evidence to

support the jury's compensatory damage award of $1,550,320 under the

very deferential due process standard of review.

CONCLUSION

The Court should affirm the judgment of the Superior Court.

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DATED: August 8, 2019

By:

Respectfully submitted, COLIANNI & COLIANNI Attorneys for Plaintiff William Cherubin /s/Vincent Colianni, II

Vincent Colianni, II V.I. Bar No. 768 Vincent A. Colianni V.I. bar No. 13 Marina Leonard V.I. Bar No. R2058 2120 Company Street Christiansted, VI 00820 Telephone: (340) 719-1766 Facsimile: (340) 719-1770

CERTIFICATE OF LENGTH

I hereby certify that the length of this brief complies with V.I.R. APP. P. 22(f). The word count for this brief is approximately 5893 words.

/s/Vincent Colianni, II

CERTIFICATE OF BAR MEMBERSHIP

In accordance with LAR 46.1(c) I hereby certify that I am a member in good standing of the Bar of the Supreme Court of the Virgin Islands since November 2002.

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/s/Vincent Colianni, II

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of August, 2019, I electronically

filed the foregoing with the Clerk of the Supreme Court using the VISCEFS, which will send notification of such filing to the following: Christopher Allen Kroblin, Esq. Kellerhals Ferguson Kroblin PLLC 9053 Estate Thomas, Suite 101 St. Thomas, VI 00802 ckroblin@kellfer.com I further certify that seven (7) paper copies of Appellee’s Brief will be filed with the Clerk of the Court of the Supreme Court of the Virgin Islands by St. Croix by August 12, 2019.

/s/Vincent Colianni, II

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