Geller v. Markham

• Decision Date: 08 December 1980
• Docket Number: Docket Nos. 80-7087,80-7089
• Parties: 24 Fair Empl.Prac.Cas. 920, 24 Empl. Prac. Dec. P 31,417 Miriam E. GELLER, Plaintiff-Appellant, Cross-Appellee, v. Walter MARKHAM et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 1027

635 F.2d 1027

24 Fair Empl.Prac.Cas. 920,

24 Empl. Prac. Dec. P 31,417

Miriam E. GELLER, Plaintiff-Appellant, Cross-Appellee, v. Walter MARKHAM et al., Defendants-Appellants, Cross-Appellees.

Docket Nos. 80-7087, 80-7089.

United States Court of Appeals Second Circuit.

Argued Sept. 5, 1980.

Decided Dec. 8, 1980.

Elizabeth K. Spahn, Boston, Mass. (Gary J. Mena, Newton Center, Mass., of counsel), for plaintiff-appellant, cross-appellee.

Russell Lee Post, Jr., Avon, Conn. (O. Bradford Griffin, Jr., Avon, Conn., of counsel), for defendants-appellants, cross-appellees.

Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.

MANSFIELD, Circuit Judge:

Miriam Geller, a 55-year-old teacher, brought a class action in the District Court for the District of Connecticut under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621, et seq., claiming that defendants-appellants violated her rights by denying her employment as a teacher because of her age. She sought damages, equitable relief (including reinstatement, pension rights, benefits and seniority) and attorney's fees. A jury trial before Judge M. Joseph Blumenfeld resulted in an award of $15,190 damages. Following the trial, Judge Blumenfeld denied her application for equitable relief but awarded attorney's fees. From this denial she appeals. Defendants cross-appeal from the judgment against them, asserting that the court erred in its conclusions as to governing legal principles and in its instructions to the jury regarding causation.

We affirm the finding of defendants' liability, since the record reveals that defendants subjected Ms. Geller to a hiring practice with both discriminatory impact, see Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and illegally disparate treatment, see McDonnell Douglas Co. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the principles of which may be applied in ADEA cases. See Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). We also affirm the district court's refusal to award reinstatement, but reverse its decision not to award pension benefits.

Ms. Geller applied for a position as a teacher at Bugbee School in West Hartford in late August, 1976. She was then 55 years old. She had gained considerable experience as a tenured teacher in New Jersey, where she had lived until shortly before applying for the Bugbee job, and she had done some work as a substitute teacher in the Connecticut schools. She was interviewed for a permanent position to fill a "sudden opening" in the Bugbee School on September 3, 1976, and was told to be ready to begin teaching art on September 7. Meanwhile, school officials continued to interview other candidates for the job.

Ms. Geller prepared the art room over Labor Day weekend, and taught school until September 17, when she was replaced by a 25-year-old woman who had not applied for the job until September 10. Shortly thereafter, Ms. Geller brought the present suit, alleging violations of ADEA, and pointing in particular to the "Sixth Step Policy" adopted by the West Hartford Board of Education ("Board"). This cost-cutting policy, which was derived from a statement included by the previous Bugbee School Superintendent in his budget report to the Board, read:

"Except in special situations and to the extent possible, teachers needed in West Hartford next year will be recruited at levels below the sixth step of the salary schedule."

The sixth step is the salary grade reached by teachers with more than five years' experience.

At trial plaintiff introduced expert statistical testimony establishing that 92.6% of Connecticut teachers between 40 and 65 years old (the protected age group under ADEA) have more than 5 years experience, while only 62% of teachers under 40 have taught more than five years. She also presented considerable evidence in the form of witnesses' testimony that individual defendants had discussed the "sixth step" policy with her, and had taken the policy into account when deciding to replace her. Defendants countered that the ratio of hirees over 40 years of age to under-40 hirees had not changed substantially since the announcement of the "sixth step" policy. From these latter statistics, which were offered not by an expert statistician but by Mr. Hedrick, a named defendant, defendants argued that the "sixth step" policy had never been applied to discriminate on the basis of age. They claimed that Ms. Geller had been replaced by a younger woman because hiring officials considered the younger woman more qualified, not because the school board was unwilling to pay a woman with her experience. Defendants also argue that even if the "sixth step" was applied, they were justified in applying it because an "experience-cost criterion" for hiring was necessary in view of declining enrollments and rising school costs.

Largely on the strength of plaintiff's expert statistical evidence, Judge Blumenfeld found that defendants' "sixth step" policy was discriminatory as a matter of law. He found the case to be governed by the line of cases regulating facially neutral employment policies which have a discriminatory impact, see Griggs v. Duke Power Co., supra; Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). He declined to accept defendants' contention that proof of a violation of ADEA required establishment of discriminatory motive. With respect to plaintiff's claim of disparate treatment, see McDonnell Douglas Co. v. Green, supra, however, he took the view After instructing the jury that the "sixth step" policy was discriminatory on the basis of age as a matter of law, Judge Blumenfeld submitted to it the question of whether this policy had been applied to Ms. Geller. First, in his oral instructions to the jury, he asked it to determine "if the decision about Mrs. Geller was made in whole or in part, because she was above the fifth step," and if the "sixth step" policy "made a difference" in the decision to replace her with the younger woman, stating:

that to sustain this claim plaintiff must ultimately prove a discriminatory motive on the defendants' part and that proof that they discharged her because of the application of the "sixth step" policy was insufficient, rendering McDonnell Douglas "inapplicable."

"There could have been more than one reason for defendants' decision about (Mrs. Geller's) employment but she is nevertheless entitled to recover if one factor was her (age) and if it made a difference in determining whether she would be employed. If it did not make any difference, if it was not a reason that entered into the decision, then of course she has not proved her case. But if it did, then she has.

"If defendants' decision about Mrs. Geller was made in whole or in part because she was above the fifth step on the salary scale, ... Mrs. Geller is entitled to recover...."

He then submitted special interrogatories to the jury, as follows:

"THE COURT: I propose to submit some Special Interrogatories.

1. Was the sixth step guideline one reason for Mrs. Geller not being hired for the permanent art teacher's position at the Bugbee Elementary School? Answer: Yes or No.

MR. POST: Sir, could I ask that that interrogatory track with your charge to the Jury and say, 'One reason that made a difference.'?

THE COURT: No. If it was one reason, that is sufficient.

MR. POST: That made a difference in their decision.

THE COURT: No. If it was one reason."

The jury found for Ms. Geller, answering the first Special Interrogatory in the affirmative. It then responded to Judge Blumenfeld's charge to award "damages equal to the amount of losses plaintiff suffered due to defendants' discriminatory actions, less amounts earned through reasonable efforts at mitigation," by awarding $15,190 in back pay, which equalled the salary Ms. Geller would have earned at the Bugbee School in 1976. In answer to another interrogatory, the jury did not find that the defendants' discrimination was "willful."

In post-trial motions plaintiffs applied for equitable relief based upon the jury's verdict, specifically requesting reinstatement, pension benefits, and attorney's fees. All of these requests except for the request for attorney's fees were denied. Plaintiff has assigned as error the denial of these requests for relief, while defendants attack Judge Blumenfeld's instructions to the jury and his ruling that the "sixth step" policy was discriminatory as a matter of law.

DISCUSSION

As the Supreme Court pointed out in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977), discriminatory or disparate treatment in violation of Title VII occurs where "(t)he employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." "Disparate impact," on the other hand, results from the use of "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id., 431 U.S. at 336 n.15, 97 S.Ct. at 1854. Proof of motive is not required to sustain a claim of disparate impact.

Defendants argue that principles with respect to discriminatory racist impact in violation of Title VII should not govern age discrimination cases instituted under 29 U.S.C. § 626(c)(1). We disagree. In Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978), the Court noted that "the (substantive) prohibitions of the ADEA were derived in haec verba from Title VII." Although the ADEA did not adopt Title VII's procedural rules...