Febres v. Challenger Caribbean Corp.

• Decision Date: 08 May 2000
• Docket Number: ET,FEBRES-MORALE,No. 98-1916,98-1916
• Citation: 214 F.3d 57
• Parties: (1st Cir. 2000) CLEMENTE FEBRES, A/K/A CLEMENTEAL., PLAINTIFFS, APPELLANTS, v. CHALLENGER CARIBBEAN CORPORATION, DEFENDANT, APPELLEE. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 57

214 F.3d 57 (1st Cir. 2000)

CLEMENTE FEBRES, A/K/A CLEMENTE FEBRES-MORALES, ET AL., PLAINTIFFS, APPELLANTS, v. CHALLENGER CARIBBEAN CORPORATION, DEFENDANT, APPELLEE.

No. 98-1916.

United States Court of Appeals, First Circuit.

Heard May 8, 2000.

Decided June 8, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Heector M. Laffitte, U.S. District Judge.

Juan Rafael Gonzalez Munnoz, with whom Josee Luis Gonzalez Castanner was on brief, for appellants.

Graciela J. Belaval, with whom Martinez, Odell & Calabria was on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

Selya, Circuit Judge.

Ever since Justice O'Connor highlighted the importance of direct evidence of discrimination, see Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77 (1989) (O'Connor, J., concurring), courts have struggled to determine whether particular pieces of evidence can be so classified. Following the passage of the Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 102, 105 Stat. 1071, 1073 (codified at 42 U.S.C. §§ 1981a(c)(1)), this struggle took on an added dimension: the Act made jury trials widely available in discrimination cases, thus sparking interest in how juries were to be instructed when direct evidence of discrimination had been introduced. We have approached these subjects cautiously, eschewing broad generalizations. See, e.g., Fernandes v. Costa Bros. Masonry, 199 F.3d 572, 581-83 (1st Cir. 1999). This appeal requires us to take an incremental step along the decisional path.

I. BACKGROUND

On February 1, 1994, Thomas & Betts Corporation (Thomas) acquired the assets of Challenger Caribbean Corporation (CCC), a manufacturer of circuit breakers and switches. ¹ Thomas decided to shut down CCC's production line at Canoovanas and transfer the work to a Vega Baja facility operated by Thomas & Betts Caribe, Inc. (Caribe). One virtue of this consolidation was the opportunity to downsize. Thomas placed a trio of executives - Frank Domenech (the manager of the Vega Baja plant), Ojel Rodrguez (his Canoovanas counterpart), and Ramoon Becker (Caribe's human resources director) - in charge of deciding which CCC employees were to be transferred and which were to be shown the door. The triumvirate met several times to determine the employees' fate.

On December 2, 1994, Domenech announced the closing of the Canoovanas plant. He also disclosed that slightly less than half of CCC's administrative employees (17 out of 36) would be transferred to Vega Baja. The nine appellants - Michael Dalmau (age 47), Clemente Febres (age 53), Rafael Hiraldo (age 46), Carmen Loopez (age 41), Jes££s Ortiz (age 64), Josee Pomales (age 54), Emma Rovira (age 43), Gloria Soto (age 47), and Luis Zayas (age 62) - were not part of that 17-member complement.

Invoking the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§§§ 621-634, the appellants sued. CCC defended on the ground that its decisions were based on legitimate, age-neutral criteria. Following a lengthy trial, the jury returned a verdict in CCC's favor.

The evidence at trial was a mixed bag, some favoring the appellants and some favoring CCC. Citing book and verse would for the most part serve no useful purpose. The sole exception concerns Becker's testimony that, as the triumvirs began mulling transfer decisions, Domenech advised him privately that three criteria were used to determine which employees would be moved to Vega Baja: job performance, union identification, and "in some cases, the age." The critical questions raised by this appeal concern the character of this bit of testimony and the jury instructions related to it. We shall return to those questions shortly. At this juncture, however, we pause to offer a quick primer on the effect of direct evidence in a discrimination case.

II. THE LEGAL LANDSCAPE

A plaintiff alleging disparate treatment under a statute like the ADEA usually proceeds by means of the familiar framework engendered in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). We have described the mechanics of this approach (customarily called the "pretext" approach) in considerable detail, see, e.g., Fernandes, 199 F.3d at 579-81; Mesnick v. General Elec. Co., 950 F.2d 816, 823-24 (1st Cir. 1991), and need not elaborate upon it here. What is significant for present purposes is that, under pretext analysis, the burden of persuasion remains with the plaintiff throughout the case. See Fernandes, 199 F.3d at 581; Mesnick, 950 F.2d at 823.

In some situations, however, a plaintiff may be entitled to use an approach that relieves her of this unremitting burden of persuasion. The key that unlocks this door is the existence of direct evidence that a proscribed factor (such as age, gender, race, or national origin) played a motivating part in the disputed employment decision. See Price Waterhouse, 490 U.S. at 276-77 (O'Connor, J., concurring); Fernandes, 199 F.3d at 580. Such evidence, if accepted by the factfinder, shifts the burden of persuasion to the employer, who then must establish that he would have reached the same decision regarding the plaintiff even if he had not taken the proscribed factor into account. See Price Waterhouse, 490 U.S. at 242; Fernandes, 199 F.3d at 580. Although the plaintiff's initial burden under this "mixed-motive" approach is heavier than the de minimis showing required to establish a prima facie case under the pretext approach, see Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997), most plaintiffs perceive the Price Waterhouse framework and its concomitant burden-shifting as conferring a pronounced advantage. In the average case, the employee thirsts for access to it, while the employer regards it as anathema. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1512 (10th Cir. 1997).

III. ANALYSIS

We now return to the case at hand, focusing on the appellants' principal assignment of error. ² We split our analysis into two segments. First, we evaluate the appellants' claim - strenuously challenged by CCC - that they introduced direct evidence sufficient to warrant a mixed-motive jury instruction. Because we resolve that question favorably to the appellants, we then consider the appellants' follow-on claim that the judge failed to give a suitable mixed-motive instruction.

A. The Character of the Evidence Presented.

The appellants assert that the Becker testimony qualifies as direct evidence, and that the lower court therefore was obliged to give a mixed-motive jury instruction. CCC disputes this assertion. The question of whether particular evidence warrants a mixed-motive instruction is a question of law, subject to de novo review. See Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir.), cert. denied, 120 S. Ct. 48 (1999); see also United States v. Flores, 968 F.2d 1366, 1367-68 (1st Cir. 1992).

As we recently had occasion to observe, the courts of appeals are in some disarray as to what constitutes direct evidence sufficient to provoke a mixed-motive instruction. See Fernandes, 199 F.3d at 582 (collecting cases). We need not draw overly fine distinctions today. For present purposes, it suffices to say that evidence is "direct" (and thus justifies a mixed-motive jury instruction) when it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision. ³ See, e.g., Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc), cert. denied, 120 S. Ct. 1243 (2000); Lambert v. Ackerly, 180 F.3d 997, 1008-09 (9th Cir.) (en banc), cert. denied, 120 S. Ct. 936 (1999); Thomas v. NFL Players Ass'n, 131 F.3d 198, 204 (D.C. Cir. 1997). Domenech's admission - that age was one of three criteria used, at least in some cases, to determine which employees would be retained and which would not - is of this genre. It therefore constitutes direct evidence warranting a mixed-motive instruction.

Although CCC rails against this conclusion, its attacks lack force. Domenech's statement was made by a decisionmaker, pertained to the decisional process, bore squarely on the employment decisions at issue (or, at least, on some of them), and straightforwardly conveyed age animus. Given these attributes, the statement cannot be dismissed as mere background noise or as a stray remark. See Fernandes, 199 F.3d at 583.

In a burst of optimistic surmise, CCC denies that Domenech's invocation of age as a criterion directly reflects age animus. In its view, he may have been referring, say, to a plan to give older employees special (favorable) treatment. We reject such speculation. Comments which, fairly read, demonstrate that a decisionmaker made, or intended to make, employment decisions based on forbidden criteria constitute direct evidence of discrimination. See Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir. 1999) (observing that the term "direct evidence" covers more than virtual admissions of illegality). The mere fact that a fertile mind can conjure up some innocent explanation for such a comment does not undermine its standing as direct evidence. See id. To hold otherwise would be to narrow the definition of direct evidence so drastically as to render the Price Waterhouse framework inaccessible to all but the bluntest of admissions. We prefer a more measured approach. Cf. Fernandes, 199 F.3d at 583 (holding "that a statement that plausibly can be interpreted two different ways - one discriminatory and the other benign - does not directly reflect illegal animus and, thus, does not constitute direct evidence") (emphasis supplied).

Gauged against this benchmark, CCC's challenge falls short. In context, there is nothing inscrutable about the statement attributed to Domenech. ⁴ Its meaning is plain. Thus, we give no credence to CCC's strained attempt to create ambiguity where none exists.

Taking a somewhat different tack, CCC asseverates that the evidence...