Braverman v. Penobscot Shoe Co.

• Citation: 859 F. Supp. 596
• Decision Date: 28 July 1994
• Docket Number: Civ. No. 93-0186-B.
• Parties: Melvin BRAVERMAN, Plaintiff, v. PENOBSCOT SHOE COMPANY and Paul Hansen, Defendants.
• Court: U.S. District Court — District of Maine

859 F. Supp. 596

Melvin BRAVERMAN, Plaintiff, v. PENOBSCOT SHOE COMPANY and Paul Hansen, Defendants.

Civ. No. 93-0186-B.

United States District Court, D. Maine.

July 28, 1994.

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Peter Bennett, Herbert H. Bennett & Associates, P.A., Portland, ME, Jerome B. Goldsmith, Linscott, Slater & Goldsmith, Bangor, ME, for plaintiff.

John W. McCarthy, Rudman & Winchell, Bangor, ME, for defendants.

ORDER AND MEMORANDUM OF OPINION

BRODY, District Judge.

The Penobscot Shoe Company (the "Company") employed Plaintiff, Melvin Braverman, between March 7, 1983 and September 30, 1992. Braverman held three positions at the Company: Director of Marketing and Sales, Vice President of Marketing and Sales, and Vice President of Sales. Paul Hansen was at all relevant periods president of the Company.

In 1987, Braverman had a heart attack that restricted his ability to work until early 1988 when he returned to full-time work without impairment.

Hansen notified Braverman that Defendants were terminating him on August 3, 1992, effective September 23, 1992. August 3rd was Braverman's first day back to work following a leave in which he received radiation treatment for prostate cancer, and four days shy of his 65th birthday. Braverman continued to work at the Company until September 23rd, and the Company paid his salary through the end of the year.

Braverman filed this action against the Company and Hansen in July 1993. Braverman's Complaint alleges that the Defendants unlawfully discriminated against him on the basis of age and disability, and intentionally and negligently caused him emotional distress. The Defendants have each moved for summary judgment on all counts of the Complaint.¹

I. Summary Judgment Standard

Summary judgment is appropriate if:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). Summary judgment is inappropriate where "there is a dispute `over facts that might affect the outcome of the suit.'" Menard v. First Sec. Servs. Corp., 848 F.2d 281, 285 (1st Cir.1988) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). The Court must draw "all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New Yorker Magazine, 501 U.S. 496, ___, 111 S.Ct. 2419, 2435, 115 L.Ed.2d 447, 475 (1991).

II. Age Discrimination

Count I of Braverman's Complaint alleges that Defendants violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA") when Hansen fired Braverman.

A. The merits

Braverman has not provided direct evidence of age discrimination. He, therefore, must follow the framework that the Court utilizes when determining whether age discrimination occurred through indirect evidence, the so-called McDonnell Douglas framework. Loeb v. Textron, Inc., 600 F.2d 1003, 1014-15 (1st Cir.1979); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985) (McDonnell Douglas framework appropriate only when direct evidence does not exist).

1. Prima facie case

Under the McDonnell Douglas framework, Braverman must first present a prima facie case. A prima facie case consists of evidence that Braverman was in the protected age group, that he was performing his job at a level that met Defendants' legitimate expectations, that he was fired, and that Defendants replaced him with someone with roughly equivalent job qualifications. Loeb, 600 F.2d at 1014; LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994).

Construing the facts in the light most favorable to Braverman, the Court finds that Braverman has established a prima facie case sufficient to survive summary judgment.

a. Protected class. Braverman is a member of the protected class. The ADEA protects those who are over forty. Id. At the time that Penobscot Shoe terminated Braverman, he was 64.

b. Job performance. Braverman must show that he was performing his job at a level that met the Company's legitimate expectations. The Court must view the issue of job qualifications in an objectively reasonable way. Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 154 (1st Cir.1990). "In a discharge case, where an employee has been doing the job satisfactorily for a substantial period of time, Braverman's burden is not great." Id. (employee established that her performance met employer's legitimate expectations based, in part, on her positive work record and the employer's failure to warn her of dissatisfaction with her job performance).

Braverman's job performance met the Company's legitimate expectations. Plaintiff asserts that Defendants did not raise any dissatisfaction with his job performance until termination. Further, Defendants provided Braverman with benefits and raises that may reflect adequate job performance.

c. Termination. Defendants do not dispute that Braverman has satisfied the third requirement of his prima facie case. Defendants fired Plaintiff.

d. Replacement. Defendants hired someone to replace Braverman. See id., at 155. Braverman, however, must show that Defendants replaced him with someone with roughly equivalent job qualifications. LeBlanc, 6 F.3d at 842. Braverman has shown that the Company replaced him with a man approximately 15 years his junior, and provided some information regarding the replacement's job qualifications. Braverman, therefore, has satisfied, albeit minimally, the prima facie requirement relating to his replacement's equivalent qualifications.

2. Defendants' rebuttal

Because Braverman has established a prima facie case of age discrimination for summary judgment purposes, he has created "a presumption that the employer engaged in impermissible age discrimination." Id. To rebut this presumption, the employer must "articulate a legitimate nondiscriminatory reason for the employee's termination." Id. (quoting Lawrence v. Northrop Corp., 980 F.2d 66, 69 (1st Cir.1992)); see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

Defendants have stated a legitimate, nondiscriminatory reason for Braverman's termination. Defendants argue that during Braverman's leave for radiation treatment, Hansen discovered that Braverman had failed to keep him adequately informed of business-related matters. Hansen felt that Braverman misled him about significant problems with customers. Defendants argue that this discovery lead to Hansen's loss of trust in Braverman, and hence Braverman's termination.

3. Pretext

Because Defendants have articulated a legitimate, nondiscriminatory reason for Braverman's termination, Braverman must establish that the proffered explanation is pretext for unlawful age discrimination. LeBlanc, 6 F.3d at 843. The First Circuit requires both evidence that reasonably supports a finding of discriminatory animus, and minimally sufficient evidence of pretext. Id.; Goldman v. First Nat'l Bank, 985 F.2d 1113, 1118, as amended, 61 Fair.Emp.Prac.Cas. (BNA) 439 (1st Cir.1993).

Braverman must do more than merely cast doubt on the Defendants' articulated reason to establish discriminatory intent. Villanueva v. Wellesley College, 930 F.2d 124, 131 (1st Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991) (citing Menard, 848 F.2d at 287). Viewing the facts in the light most favorable to Braverman, the Court is satisfied that he has established discriminatory intent for summary judgment purposes. Braverman alleges that Hansen repeatedly asked and pressured him about retirement because he was approaching 65. This evidence includes: Hansen asking Braverman in early 1992 about Braverman's retirement plans; Hansen suggesting retirement when Braverman disclosed his plans for radiation treatment; and the Company providing Braverman an unsolicited and unwelcome retirement information package in the spring of 1992. Further, Braverman contends that Penobscot Shoe had a pattern of discrimination. Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 49 (1st Cir.1990) (pattern of discrimination may establish discriminatory motive).

The Court must look at the totality of the circumstances before making a reasonable inference that the Defendants' proffered justification was a pretext for age discrimination. Goldman, 985 F.2d at 1119; Connell v. Bank of Boston, 924 F.2d 1169, 1175 (1st Cir.), cert. denied, 501 U.S. 1218, 111 S.Ct. 2828, 115 L.Ed.2d 997 (1991). Braverman has generated a question of material fact of pretext by alleging that Defendants' counsel instructed Hansen on the reasons to provide for terminating Braverman.

Because Braverman has established a prima facie case, and offered evidence that puts in issue Defendants' explanation as pretext and a mask of discriminatory intent, the Court denies Defendants' summary judgment motion on count I.

4. Prejudgment interest

Defendants argue that Braverman is barred from pursuing his claim for prejudgment interest on his ADEA claim and request partial summary judgment. The Court, however, finds that summary judgment is inappropriate on the issue of prejudgment interest.

The Court agrees with Defendants' assertion that a plaintiff may not recover both liquidated damages on an ADEA claim and prejudgment interest on a backpay award. Biggins v. Hazen Paper Co., 953 F.2d 1405, 1425 (1st Cir.1992); Powers v. Grinnell Corp., 915 F.2d 34, 41-42 (1st Cir. 1990). In other words, "an award of liquidated damages in an ADEA action bars prejudgment interest." Kolb...