Golomb v. Prudential Ins. Co. of America, 81-2296
| Decision Date | 22 September 1982 |
| Docket Number | No. 81-2296,81-2296 |
| Citation | 688 F.2d 547 |
| Parties | 29 Fair Empl.Prac.Cas. 1491, 30 Empl. Prac. Dec. P 33,057 Raymond T. GOLOMB, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jack A. Strellis, Waterloo, Ill., for plaintiff-appellant.
Russell M. Pelton, Peterson, Ross, Schloerb & Seidel, Chicago, Ill., for defendant-appellee.
Before WOOD and COFFEY, Circuit Judges, and CAMPBELL, Senior District Judge. *
This is an appeal of an order of the United States District Court for the Northern District of Illinois, Eastern Division, entered in an action brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1960) ("ADEA"). The order appealed from denied the plaintiff-appellant's motion for a new trial after a jury verdict in favor of the defendant. The plaintiff-appellant Golomb argues that the district court committed reversible error when it instructed the jury that the plaintiff in an ADEA case must prove that the defendant-employer's stated reason for demoting the plaintiff was a "pretext". We hold that the district court's jury instruction, including the use of the word "pretext", was proper because the instruction clearly and accurately stated the law regarding the plaintiff's burden of proof in an age discrimination suit. Affirmed.
This case involves the demotion of the plaintiff Raymond Golomb from the position of sales manager for the defendant Prudential Insurance Company of America (hereinafter "Prudential") to the position of a regular salesman for Prudential. The plaintiff Golomb brought an action in the Northern District of Illinois against Prudential alleging that he was demoted because of age, in violation of the Age Discrimination in Employment Act.
The plaintiff Golomb was hired by Prudential as a sales agent in 1946 and was promoted in 1954 to the position of sales manager in Prudential's Boulevard Manor District Office in Forestview, Illinois. There were five sales managers in the Boulevard Manor Office, including the plaintiff Golomb, each of whom supervised a separate team of insurance salesmen. Golomb's responsibilities as a sales manager consisted primarily of promoting team sales and recruiting new sales agents for Prudential.
In February 1977, the plaintiff Golomb, then age sixty, was demoted from sales manager down to the position of a sales agent. In October of the same year, the plaintiff brought suit under the Age Discrimination in Employment Act against his employer Prudential, alleging that he was demoted because of: (1) his age and (2) his refusal to dismiss the older members of his sales staff. The defendant Prudential, however, successfully showed at trial that Golomb was demoted not because of his age or because of his refusal to dismiss older members of his sales staff, but rather because of his unsatisfactory performance as a sales manager. Prudential introduced evidence at trial showing that Golomb was the least productive of the five sales managers in the Boulevard Manor Office, in that Golomb's sales team had trailed the other four sales teams in the office in terms of gross sales for the years of 1975 and 1976. Prudential also presented evidence demonstrating that the plaintiff Golomb had not fulfilled his employer's expectations in the area of recruiting new sales personnel for Prudential.
At the close of the trial, the district court, over plaintiff counsel's objection, gave the jury the following instruction pertinent to this appeal:
"In order to prove his claim, the burden is upon the plaintiff to establish by a preponderance of the evidence the following five elements:
1. Plaintiff was within the age group protected by the Age Discrimination in Employment Act, that is, he was between 40 and 70.
2. Plaintiff was performing his job at a level that met defendant's legitimate expectations.
3. Plaintiff was nevertheless-plaintiff nevertheless was demoted.
4. Either plaintiff's age or plaintiff's resistance to defendant's attempts to have him discriminate against members of his staff within the protected age group because of age was a determining factor in the plaintiff's demotion.
5. Defendant replaced plaintiff with someone else.
The term 'determining factor' means that but for defendant's motive to discriminate against him because of age, plaintiff would not have been demoted.
If you find that the plaintiff has proved these five elements by a fair preponderance of the evidence, you must then decide whether the defendant's stated reason or determining factor for the demotion was a pretext. The defendant has stated that the plaintiff was demoted because his overall job performance was unsatisfactory. This is a legitimate reason to demote the plaintiff and it dispells any inference that the demotion was improper, unless you find that the stated reason or the determining factor for the demotion was a pretext, i.e., a cover-up for age discrimination.
Plaintiff must establish by a preponderance of the evidence that the defendant's stated reason or the determining factor for the demotion was a pretext. If you find that plaintiff has proved by a preponderance of the evidence that the defendant's stated reason or determining factor was a pretext, then you should find for the plaintiff.
If you find that the plaintiff has not proved by a preponderance of the evidence that the defendant's stated reason or determining factor was not a pretext, then you should find for the defendant.
The Age Discrimination in Employment Act does not require that advanced age and substantial length of service entitle employees to special favorable consideration and does not require that an employer adopt a policy that will maximize the number of older persons in its work force.
Defendant is entitled to make its own policy and business judgment, and may, for example, demote an adequate employee, if its reason is to replace him or her with one who the defendant believes will be even better, as long as this is not a pretext for discrimination."
The jury then retired and, after deliberating, returned a verdict for the defendant Prudential.
In this appeal, the plaintiff argues that the district court's instructions to the jury, quoted above, constitute reversible error because the instructions failed to properly instruct the jury on "the causative effect of age discrimination." (Plaintiff-appellant's brief at 1). While the plaintiff's briefs are somewhat less than clear as to his exact argument in this appeal, the crux of his argument appears to be: "The court, requiring plaintiff to prove that the defendant's stated reason for Golomb's demotion was a pretext, required in the jury's eye that the plaintiff had to prove the defendant's stated reason was false." (Plaintiff-appellant's brief at 15). More specifically, the plaintiff argues that the use of the word "pretext" in the jury instruction was improper because: (1) "pretext", to the average juror, is synonymous with "false"; (2) the plaintiff was thus required to prove to the jury that Prudential's stated reason for demoting the plaintiff (i.e., plaintiff's unsatisfactory job performance) was false; and (3) requiring the plaintiff to prove that Prudential's stated reason for the demotion was false equates with requiring the plaintiff to prove that age was the sole motivating factor for the plaintiff's demotion, contrary to well established case law under the ADEA.
We agree that a successful claimant in an ADEA action need not prove that age was the sole determining factor for the defendant-employer's action, but rather that age was a determining factor. We reject Golomb's argument presented in this appeal, though, and we hold that the use of the word "pretext" under these circumstances was proper because: (1) the use of "pretext" is an integral part of the burden of proof framework established by the United States Supreme Court for employment discrimination suits; and (2) in common usage, the word "pretext" is not synonymous with "false".
Did the district court commit reversible error by using the word "pretext" in its jury instructions regarding the plaintiff's burden of proof in an age discrimination suit?
The Age Discrimination in Employment Act recites in pertinent part:
29 U.S.C. § 623(a). Thus, to establish a cause of action under the ADEA, a claimant must show that he was discriminated against because of his age. In the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established a framework by which a claimant may establish the crucial "because of" element in an employment discrimination suit. The plaintiff in McDonnell Douglas alleged that he had been discharged from his employment because he was a Negro. 1 The Court held that a claimant in a suit alleging job discrimination must first establish a prima facie case of discrimination, after which the burden shifts to the defendant-employer "to articulate some legitimate, non-discriminatory reason," id. at 803, 93 S.Ct. at 1824, for its action. Should the defendant articulate such a valid business reason, the plaintiff must then prove that the employer's articulated reason is actually "a pretext for the sort of discrimination prohibited" and that the employer's "stated reason (for its action) was in fact a pretext." Id. at 804, 93 S.Ct. at 1825 (emphasis added). "In short, (the plaintiff) must be given a full and fair opportunity to demonstrate by competent evidence that...
To continue reading
Request your trial
-
Eaton v. Onan Corp.
...of action under the ADEA, "a claimant must show that he was discriminated against because of his age." Golomb v. Prudential Ins. Co. of America, 688 F.2d 547, 550 (7th Cir.1982). The Onan Pension Plan formula here for lump sum distributions treats all participants the same, regardless of ag......
-
Harris v. Marsh
...only discriminatory. LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1414-15 (7th Cir.1984); Golomb v. Prudential Insurance Co., 688 F.2d 547, 551 (7th Cir.1982); Rogers v. Illinois Department of Children and Family Services, 43 FEP Cases 1134, 1136 (N.D.Ill.1987) Availabl......
-
Metz v. Transit Mix, Inc.
...factor in his termination. LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405 (7th Cir.1984); Golomb v. Prudential Ins. Co. of America, 688 F.2d 547, 551 (7th Cir.1982) ("the employer's articulated reason may in fact have been true, but if age was also a determining factor in ......
-
Grabb v. Bendix Corp.
...Ass'n, 741 F.2d 975, 978 (7th Cir.1984); Huhn v. Koehring Co., 718 F.2d 239, 243 (7th Cir.1983); Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982). To accomplish this, a plaintiff must prove not that age was the sole factor motivating the employer in the employ......
-
Age discrimination
...action ] was a pretext, i.e. , a cover-up for age discrimination. Comments Source of Instruction: Golomb v. Prudential Ins. Co. of Am. , 688 F.2d 547, 549-50 (7th Cir. 1982). §2:580 Same Actor Inference—Home Office You have heard that the person that hired Plaintiff was also the person who ......