Brennan v. GTE Government Systems Corp.

• Decision Date: 06 May 1998
• Docket Number: No. 97-2015,97-2015
• Citation: 150 F.3d 21
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 430, 74 Empl. Prac. Dec. P 45,627 Daniel F. BRENNAN, Plaintiff, Appellant, v. GTE GOVERNMENT SYSTEMS CORPORATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

150 F.3d 21

77 Fair Empl.Prac.Cas. (BNA) 430,

74 Empl. Prac. Dec. P 45,627

Daniel F. BRENNAN, Plaintiff, Appellant, v. GTE GOVERNMENT SYSTEMS CORPORATION, Defendant, Appellee.

No. 97-2015.

United States Court of Appeals, First Circuit.

Heard May 6, 1998.

Decided July 16, 1998.

Paul M. Stein with whom Thomas O. Moriarty was on brief, for appellant.

Arthur G. Telegen with whom Michael L. Rosen and Tracey E. Spruce were on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN and BOWNES, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Daniel Brennan's twenty-year-long employment with GTE Government Systems Corporation ("GTE") ended in March 1993 when he was terminated as part of a reduction in force. Brennan, who was fifty years old at the time of his termination, brought suit claiming that he was discharged as a result of age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"), and Mass. Gen. Laws ch. 151B, § 4 ("ch.151B"). He also alleged a state law misrepresentation claim, asserting that GTE fraudulently and negligently misrepresented its policies and procedures for laying off employees. The district court dismissed the state claim upon summary judgment and granted judgment as a matter of law at the close of evidence. Brennan challenges the rulings, and contests the court's exclusion of certain evidence. We find error in one of the evidentiary rulings relevant to establishment of a prima facie case. We also conclude that there was sufficient evidence to create jury issues on pretext and age discrimination. We therefore reverse the directed verdicts for GTE on the federal and state age discrimination claims but affirm the dismissal of the misrepresentation claim.

I. Factual Background ¹

Brennan began working at GTE in 1973 as a senior technician and later held a series of different engineering positions. In 1986, he accepted a position as an integration and test engineer in the Mobile Subscriber Equipment System ("MSE") division. Created in 1986, the MSE division developed in response to a contract between GTE and the United States Army for a comprehensive communications system. ² In mid 1992, the division was reorganized and Brennan was assigned to work in the Circuit Switching and Systems Control department, headed by John Van Dolman. His job as an integration and test engineer involved designing and overseeing the MSE testing process.

The record contains performance appraisals extending from 1976 to June 1992 consistently describing Brennan as meeting job expectations. In late 1992, GTE assigned Brennan to fill in for Carl Bredberg, a systems engineer whose job was to troubleshoot MSE field problems, after Bredberg suffered a heart attack.

In September 1992, MSE engineering department managers Van Dolman and Kevin Flynn each prepared "Work Force Analysis Forms" in anticipation of a reduction in force planned for November 2, 1992. These forms set forth positions to be eliminated, employees performing those functions, and the names of individuals recommended for termination. Van Dolman identified "System Integration and Test Procedure Writer" as the function to be eliminated and Brennan as the only employee for termination, stating that Brennan lacked the skill mix to do the remaining work. The function eliminated by Flynn was "Senior System Engineer." Two persons, each sixty-three years old, out of nine employees in that position were identified for layoff.

GTE, however, did not go forward with the planned reduction in force. Instead, in December 1992, it notified employees of its need to reduce staff as a result of general downsizing in the defense industry, and offered a voluntary separation incentive program and an enhanced early retirement program as "first step[s] in realigning [GTE] staffing levels." GTE announced that the programs were entirely voluntary, but would be offered only from January 11, 1993 until February 5, 1993. Under the early retirement program, available to all employees fifty and older, Brennan could retire with pension and medical benefits that would otherwise not be available to him until January 1, 1996. Brennan, however, declined the offered program, believing that his seniority would prevent him from being selected for layoff.

On December 7, 1992, Allen Sherwood, manager of the MSE division at that time, developed a "rating and ranking" of employees in the engineering division in anticipation of a layoff. Brennan was listed as the lowest ranking of thirty-three employees at grade levels six and seven. The rating and ranking included three categories of grades (3-5, 6-7 8-11), and then listed the employees who, out of a total of ninety-six, ranked among the bottom thirty percent of all employees. On this list, Brennan ranked ninety-third, or fourth from the lowest. Other terminated employees had similar, although not quite as low, rankings as Brennan. ³ The ages of employees listed in the rating and ranking were admitted as evidence. A high number of fifty and older employees were ranked in the bottom thirty percent.

On February 26, 1993, Van Dolman prepared another Work Analysis Form, identifying "System Integration Testing and Test Procedure Writing" as the function to be eliminated. ⁴ He listed fourteen persons in this position prior to the reduction in force, out of which five were proposed for separation. Brennan, who was then fifty, along with four others (aged thirty-one, thirty-four, fifty-seven and fifty-nine) were identified as "not possess[ing] the skills to perform the remaining work available." The form also set forth the specific skills these workers lacked, namely, "detailed knowledge as required to troubleshoot and resolve System level problems." Brennan, John Hartgrove (fifty-seven), and John Hurley (thirty-seven), were also described as unable to perform "design related Systems work." The listed reasons for termination were "wrong skill mix to do work remaining" and "lowest performance rating." Under "additional comments" was written, "rating and ranking verifies above decisions."

Two days later, Van Dolman completed a Work Force Analysis Form to reduce another section of the MSE division, System Design Activities. Of the four persons he listed as working in that section, he selected the only over fifty employee, Al Ricard, for termination. The remaining three employees, all retained, were in their late twenties or early thirties. Van Dolman described Ricard as unable to "perform complex system engineering level design tasks." Reasons for termination and additional comments referencing the rating and ranking were the same as those listed for Brennan.

In late March 1993, Brennan was informed that he would be terminated on April 2, 1993. Brennan testified that when he approached Van Dolman about the decision, Van Dolman stated, "I was told it wouldn't matter to you guys." Brennan believed "you guys" referred to the fifty and older employees, and "wouldn't matter" referred to the retirement packages Van Dolman believed to be available to employees aged fifty and older. Van Dolman testified that he could have made the statement, but did not recall doing so. Brennan also testified that during his employment with GTE, he and other older employees were not given new computers or new assignments, which were instead designated for younger employees.

The fifty and older employees discharged as a result of the Work Force Analysis Forms, including Brennan, were the only fifty and older employees remaining in the two MSE departments subject to layoff. Other persons in this age group who had worked in these departments chose voluntary separation or early retirement before the layoffs.

II. The Age Discrimination Claims

The central aspect of our review involves Brennan's appeal from directed verdict on his age discrimination claims. The district court found that Brennan had not established the required prima facie case, had not shown that GTE's reason for discharging him was pretextual, and did not present sufficient evidence to support a finding of discriminatory animus. We review the grant of a motion for judgment as a matter of law de novo, taking the facts most favorable to Brennan. See Russo v. Baxter Healthcare Corp., 140 F.3d 6, 7-8 (1st Cir.1998). Brennan must provide " 'more than a scintilla of evidence and may not rely on conjecture or speculation' to justify the submission of an issue to the jury." Id. (quoting Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir.1996)). "The court, however, must 'not consider the credibility of the witnesses, resolve the conflicts in testimony, or evaluate the weight of the evidence.' " Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1186 (1st Cir.1996) (citing Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987)). A verdict may be directed only if, applying these standards, the evidence does not permit a reasonable jury to find in favor of Brennan. See id.

As part of his age discrimination case, Brennan alleged evidentiary errors, which we review for abuse of discretion. See Kelley v. Airborne Freight Corp., 140 F.3d 335, 345-46 (1st Cir.1998). We will not upset a verdict for "any error or defect in the proceeding which does not affect the substantial rights of the parties." Id. (quoting Fed.R.Civ.P. 61).

To review the court's determinations, we begin by setting forth the burden shifting framework of the controlling discrimination law. We note that until the last step in the framework, discussed infra, Massachusetts law parallels federal law. See Kelley, 140 F.3d at 347-48.

A. The burden shifting framework

The plaintiff's initial burden to establish a prima facie case of discrimination is "not onerous." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir.1994) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). "All that is needed is the production of admissible...