Geller v. Markham

• Decision Date: 18 December 1979
• Docket Number: Civ. No. H-77-363.
• Citation: 481 F. Supp. 835
• Court: U.S. District Court — District of Connecticut
• Parties: Miriam E. GELLER, on behalf of herself and all others similarly situated v. Walter MARKHAM et al.

481 F. Supp. 835

Miriam E. GELLER, on behalf of herself and all others similarly situated v. Walter MARKHAM et al.

Civ. No. H-77-363.

United States District Court, D. Connecticut.

December 18, 1979.

Elizabeth K. Spahn, New England School of Law, Boston, Mass., Gary J. Mena, Greater Boston Legal Services, Dorchester, Mass., for plaintiffs.

Russell Lee Post, Jr., Avon Park North, Conn., O. Bradford Griffin, Jr., Litchfield, Conn., for defendants.

RULING ON DEFENDANTS' MOTION FOR NEW TRIAL

BLUMENFELD, District Judge.

This is a case brought by Miriam Geller under the class-action provisions of the ADEA.¹ After a full trial, a unanimous jury found that Mrs. Geller was entitled to $15,190 in back pay from the defendant school for its refusal to hire her on the basis of her age. Defendants have previously moved unsuccessfully for a directed verdict and a judgment notwithstanding the verdict. They now seek a new trial on the grounds of inadequate jury instructions. In particular they complain that this court should not have ruled that their use of an "experience" factor, i. e., the "sixth-step guideline," was a per se violation of the ADEA, and that the jury should not have been given the "one-of-the-reasons" standard for determining the causation nexus.

Where the interests of justice require, the District Court is empowered to grant a new trial, Fed.R.Civ.P. 59; Moore's Federal Practice ¶ 59.081 (2d ed.) at 59-102, and a prejudicial error in the instructions given to the jury is properly grounds for granting a Rule 59 motion. Moore's Federal Practice ¶ 59.082 (2d ed.) at 59-105; Ambrose v. Wheatley, 321 F.Supp. 1220 (D.Del.1971). Consequently, a careful analysis of the defendants' objections is necessary in spite of the fact that they have already been considered and rejected in earlier rulings.

ADEA Violation as a Matter of Law

This case centered on the defendants' use of the so-called "sixth-step" policy which reads as follows:

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

Uncontroverted evidence established that the application of this policy to the general pool of job applicants had a disproportionate impact on those applicants between the ADEA protected ages of 40-65. (In fact, 92.6% of all the applicants who were disadvantaged by the West Hartford School District's use of this policy were over 40 and under 65.) Consequently, this court instructed the jury as follows:

"This court has decided as a matter of law that this `sixth-step' guideline has an adverse impact on job applicants over 40 years of age as compared with applicants under that age. . . . So I say that if implemented that would be a violation of the Age Discrimination Act. Now the issue for you to decide with regard to Mrs. Geller, therefore, is what role this guideline played in the defendants' decision not to offer Mrs. Geller a permanent teaching position at the Bugbee Elementary School."

Defendants argue that this was error since the jury should have been instructed that the plaintiff had to prove that the facially neutral restriction was enacted with an intent to discriminate against the aged before the jury could find its use to be a violation of the ADEA. Defendants' argument, however, is based on at least two lines of authority, neither of which are applicable to the facts of this case. A closer analysis substantiates this court's view that the instruction given was not in error.

The first distinction that needs to be drawn is between those employment discrimination cases involving disparate treatment and those involving disparate impact.² The standards connected with the former arise out of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) while the latter stem from the case of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Both standards are applicable to Title VII cases and are valuable guides to ADEA suits as well. Loeb v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir. 1979); Hodgson v. First Federal Savings & Loan Ass'n, 455 F.2d 818, 820 (5th Cir. 1972); Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 784 (D.Md.1978); Schulz v. Hickok Manufacturing Co., Inc., 358 F.Supp. 1208, 1212 n.2 (N.D.Ga.1973); cf. Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978); Reich v. Dow Badische Co., 575 F.2d 363, 367 (2d Cir. 1978), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683; Nabors v. United States, 568 F.2d 657, 659 n.3 (9th Cir. 1978).

In McDonnell Douglas, an individual black plaintiff filed a complaint alleging that McDonnell Douglas had discriminated against him when it refused to rehire him following a general layoff. McDonnell Douglas responded claiming that its refusal to hire the plaintiff was predicated on his involvement in an illegal plan to block traffic in a protest over McDonnell Douglas policies. The issue before the Court was the proper order and burden of proof in such cases. After noting the disagreement between the circuits, it held that once the plaintiff made out a prima facie case of discrimination³ the employer had to come forward and "articulate" a legitimate non-race related justification for its action. After it had done so, the plaintiff was to be offered an opportunity to prove that the employer's justification was a mere "pretext" for racial discrimination.

Although the Court did not say so in so many words, the last determination essentially involves a question of motive. If, in an individual case, the plaintiff cannot demonstrate an improper motive there is no way for the jury to find that he was discriminated against. In other words, the employee fails to establish his claim because he has not proved that a racially biased reason actually accounted for the company's failure to hire him.

While the McDonnell Douglas standards have been extended to age discrimination suits, e. g., Loeb v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir. 1979); Wilson v. Sealtest Foods Div. of Kraftco Corp., 501 F.2d 84, 86 (5th Cir. 1974), they are "surely not the only . . . way of establishing a legally sufficient prima facie case . .." Loeb v. Textron, supra at 1017 (footnote omitted). In the analogous area of Title VII, the Supreme Court has been careful to insure that McDonnell Douglas standards are not treated as the exclusive method of establishing Title VII violations.

"The company and union seize upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination. Our decision in that case, however, did not purport to create an inflexible formulation. We expressly noted that `the facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from a plaintiff is not necessarily applicable in every respect to differing factual situations.' Id., 411 U.S. at 802 n.13, 93 S.Ct. 1817. The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act."

International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977) (footnote omitted) (emphasis in original). In particular, as an alternative to the McDonnell Douglas approach, a long line of authority has allowed plaintiffs to establish a prima facie case of discrimination by demonstrating the disparate impact on a minority group of a general policy, procedure or test utilized in hiring, promotions or discharges. Beginning with McDonnell Douglas itself, the Court has always distinguished class action challenges to general company policies from challenges to the individual discriminatory act of the type alleged in McDonnell Douglas. 411 U.S. at 802 n.14, 93 S.Ct. 1817. The disparate impact test has been utilized in numerous subsequent cases, each involving a challenge to a general policy or procedure. E. g., Teamsters, supra; Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1976); cf. Loeb v. Textron, Inc., 600 F.2d 1003, 1017 (1st Cir. 1979) ("Supreme Court has held that a prima facie showing of discrimination can be made in a class action by showing discriminatory hiring patterns and practices.").

"The Franks case thus illustrates another means by which a Title VII plaintiff's initial burden of proof can be met. The class there alleged a broad-based policy of employment discrimination; upon proof of that allegation there were reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference."

Teamsters, supra, 431 U.S. at 359, 97 S.Ct. at 1867 (footnote omitted).

In disparate impact, as opposed to disparate treatment, Title VII cases, proof of motive is not required. "Under the Act, practices, procedures or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); General Electric Co. v. Gilbert, 429 U.S. 125, 137, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). See also Washington v. Davis, 426 U.S. 229, 246-48, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The reason for the distinction is obvious. In individualized cases, absent proof of a wrong motive, there is no basis for determining whether the race, or in this case age, of the aggrieved employee affected the employer's decision. Thus there can be no showing of discrimination. In broader challenges to company...