Caron v. Scott Paper Co.

• Citation: 834 F. Supp. 33
• Decision Date: 27 September 1993
• Docket Number: Civ. No. 93-65-P-C.
• Parties: Gerard J. CARON, et al., Plaintiffs, v. SCOTT PAPER COMPANY and S.D. Warren Company, Defendants.
• Court: U.S. District Court — District of Maine

834 F. Supp. 33

Gerard J. CARON, et al., Plaintiffs, v. SCOTT PAPER COMPANY and S.D. Warren Company, Defendants.

Civ. No. 93-65-P-C.

United States District Court, D. Maine.

September 27, 1993.

Daniel W. Bates, James B. Haddow, Petruccelli & Martin, Francis Jackson, Portland, ME, for plaintiffs.

William J. Kayatta, Jr., S. Mason Pratt, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, ME, for defendants.

MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

GENE CARTER, Chief Judge.

This is an action for age discrimination brought under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., and the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. §§ 4551 et seq., by former salaried employees of Scott Paper Company's S.D. Warren paper mill in Westbrook, Maine. The matter before the Court is Defendants' Motion for Partial Summary Judgment on Counts II and VII of Plaintiffs' Complaint. (Docket No. 18). Counts II and VII allege violations of the Maine Human Rights Act and the ADEA based on the "disparate impact" suffered by Plaintiffs.

FACTS

In October of 1990, S.D. Warren Company decided to reduce the number of salaried employees at the Westbrook Mill. This decision was brought about, at least in part, by the Company's decision to sell the mill and its desire to make the mill more attractive to potential buyers. Affidavit of Gary A. Parafinczuk (Docket No. 22) ¶ 5. S.D. Warren determined that it should be possible to increase productivity by reducing by approximately 20% to 25% the number of salaried employees at the mill. Parafinczuk Affidavit (Docket No. 22) ¶¶ 4, 11.

S.D. Warren determined which employees would be let go based on individual employee evaluations. Parafinczuk Affidavit ¶ 12. The assessment process used to evaluate each employee was developed by the S.D. Warren Mill Leadership Team ("MLT"), which was made up of the heads of several departments, along with the mill manager. Parafinczuk Affidavit ¶ 7. First, each department head divided the jobs in his department — including those to be eliminated — into "job groups." Parafinczuk Affidavit ¶ 13. Each job group was composed of jobs that required the same or similar skills on the part of the employees performing those jobs. Parafinczuk Affidavit ¶ 13.

After these initial steps were taken, Plaintiffs were evaluated by a team of co-workers using six subjective factors and one objective factor.¹ Parafinczuk Affidavit ¶ 14-15. No single person or group graded all employees. Parafinczuk Affidavit ¶ 20. A final rating was developed for each employee by members of the respective department's evaluation team. Parafinczuk Affidavit ¶ 15. Employees selected for termination were those with the lowest scores in their job group. Parafinczuk Affidavit ¶ 15.

Plaintiffs were all at least fifty years of age as of March 13, 1991, and they were discharged from their employment at the mill on that date. The downsizing process resulted in an overall rate of retention of 61.5% of employees aged fifty and older, and an overall rate of retention of 91.5% of employees under fifty. Affidavit of Rosemary Roberts submitted in support of Plaintiffs' Class Certification Memorandum (Docket No. 17) ¶ 4.

DISCUSSION

A motion for summary judgment must be granted 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). The Court of Appeals for the First Circuit has aptly articulated the legal standard to be applied in deciding motions for summary judgment:

The movant must adumbrate `an absence of evidence to support the nonmoving party's case.' Celotex Corp. v. Catrett, 477 U.S. 317, 325 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both `material,' in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976), and `genuine,' in that a reasonable jury could, on the basis of the proffered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248 106 S.Ct. at 2510; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. `The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial' Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme Court has said:

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or significantly probative, summary judgment may be granted.

Anderson, 477 U.S. at 249-50 106 S.Ct. at 2511.

Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.1989).

I. DISPARATE IMPACT CLAIMS²

Under the ADEA, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Plaintiffs proceed under two theories of age discrimination: "disparate treatment" and "disparate impact." The chief difference between the two theories of liability is that disparate treatment involves discriminatory intent, whereas intent need not be shown in a disparate impact case. The disparate impact mode of analysis permits a plaintiff to recover for "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." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 325 n. 15, 97 S.Ct. 1843, 1853 n. 15, 52 L.Ed.2d 396 (1977); see also Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971) (finding as violative those employment practices that are "fair in form, but discriminatory in operation"). Disparate impact claims assess the effects, rather than the intent, of the "practices, procedures, or tests neutral on their face." Griggs, 401 U.S. at 430, 91 S.Ct. at 853.

The disparate impact theory was developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). See Griggs, 401 U.S. at 424, 91 S.Ct. at 849. The Supreme Court has acknowledged that "there are important similarities between Title VII and the ADEA, ... both in their aims — the elimination of discrimination in the workplace — and in their substantive provisions. In fact, the provisions of the ADEA were derived in haec verba from Title VII." Lorillard, Division of Loew's Theaters, Inc. v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). Although there are differences in the statutes and in the nature of the discrimination they prohibit, their similarities have led courts interpreting the ADEA to often borrow and apply Title VII analysis.

Defendants argue that disparate impact claims are not cognizable under the ADEA. Memorandum in Support of Defendants' Motion for Partial Summary Judgment (Docket No. 19) at 2. The Court of Appeals for the First Circuit has assumed, without analysis, that the ADEA, like Title VII, allows a plaintiff to challenge discrimination under disparate impact analysis. Holt v. Gamewell Corp., 797 F.2d 36, 37 (1st Cir.1986).³ Other circuit courts of appeals which have addressed the viability of disparate impact claims in ADEA cases have approved, either directly or in dictum, the applicability of disparate impact analysis in the ADEA setting. See Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981); Laugesen v. Anaconda Co., 510 F.2d 307, 315 (6th Cir.1975); Monroe v. United Air Lines, Inc., 736 F.2d 394, 404 n. 3 (7th Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1356, 84 L.Ed.2d 378 (1985); Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8th Cir. 1983); Palmer v. United States, 794 F.2d 534 (9th Cir.1986); Heward v. Western Electric Co., 35 Fair Empl.Prac.Cas. (BNA) 807; 35 Empl.Prac.Dec. (CCH), 1984 WL 15666 (10th Cir.1984); Allison v. Western Union Tel. Co., 680 F.2d 1318 (11th Cir.1982).

The Supreme Court has "never decided whether a disparate impact theory of liability is available under the ADEA." Hazen Paper Co. v. Biggins, ___ U.S. ___, ___, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338, 346 (1993). Moreover, certain members of the Court have expressed reservations regarding the applicability of disparate impact analysis in cases brought under the ADEA. See Id., at ___-___, 113 S.Ct. at 1710, 123 L.Ed.2d at 351-52 (Kennedy, J., with whom Rehnquist, C.J., and Thomas, J., join concurring) (Writing separately to underscore that the majority opinion applies only to disparate treatment analysis. "We have not yet addressed the question whether a disparate impact claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA."); Markham v. Geller, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981) (Rehnquist, J., dissenting from denial of certiorari).

A. Application of Disparate Impact in ADEA Cases

Defendants contend that the Supreme Court's rationale for adopting the disparate impact theory in Title VII cases does not...