Gray v. New England Tel. and Tel. Co., s. 85-1712

• Decision Date: 29 May 1986
• Docket Number: Nos. 85-1712,85-1806,s. 85-1712
• Citation: 792 F.2d 251
• Parties: 40 Fair Empl.Prac.Cas. 1597, 41 Empl. Prac. Dec. P 36,451 Irving P. GRAY, Plaintiff, Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants, Appellees. Irving P. GRAY, Plaintiff, Appellee, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 251

792 F.2d 251

40 Fair Empl.Prac.Cas. 1597,

41 Empl. Prac. Dec. P 36,451

Irving P. GRAY, Plaintiff, Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, et al.,

Defendants, Appellees.

Irving P. GRAY, Plaintiff, Appellee, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, Defendant, Appellant.

Nos. 85-1712, 85-1806.

United States Court of Appeals, First Circuit.

Argued Feb. 5, 1986.

Decided May 29, 1986.

Russell F. Hilliard with whom John Gilbert Upton and Upton, Sanders & Smith, Concord, N.H., were on brief, for Irving P. Gray.

Richard A. Samuels with whom Jack B. Middleton and McLane, Graf, Raulerson & Middleton Professional Association, Manchester, N.H., were on brief, for New England Telephone and Telegraph Co.

Before COFFIN and ALDRICH, Circuit Judges, PETTINE, ^* Senior District Judge.

PETTINE, Senior District Judge.

On April 9, 1982, the plaintiff, Irving Gray, a Right-of-Way Agent in New Hampshire for the defendant, New England Telephone & Telegraph (hereinafter, "NET"), was discharged from his employment. Gray had been employed continuously since 1955, and was 51 years of age at the time of his dismissal.

On September 23, 1982, Gray filed suit on three theories: (1) breach of employment contract; (2) violation of the Age Discrimination in Employment Act (hereinafter, "ADEA"), 29 U.S.C. Secs. 621-634; and (3) negligent or malicious refusal to provide notice of pension benefits in violation of the Employment Retirement Income Security Act (hereinafter, "ERISA"), 29 U.S.C. Secs. 1001-1461. Gray was originally represented by counsel, but dismissed his attorneys in the fall of 1984. He was then given time to obtain alternate counsel, and the trial, scheduled for December, was postponed until July 1985. At the final pretrial conference held in June 1985, Gray advised the court that he had yet to obtain alternate counsel. The district court judge indicated that the plaintiff would have to proceed on the scheduled trial date, even if he must proceed pro se.

At the trial, Gray appeared pro se and presented several witnesses and a number of exhibits. At the close of the plaintiff's case, the district court judge directed a verdict against Gray on his claims of wrongful discharge and ERISA violations, but found that Gray had established a prima facie case as to the ADEA claim. NET then presented its defense of the ADEA claim, asserting a legitimate nondiscriminatory reason for Gray's discharge: that Gray had violated a certain "back-to-work" agreement and various other company policies. At the close of all the evidence, the district court judge directed a verdict against Gray on the ADEA claim, finding that there was no evidence upon which a reasonable jury could determine that the discharge of Gray occurred in violation of the ADEA.

On this appeal, three issues are raised. Gray claims that the district court judge erred in directing a verdict at the close of the evidence on the ADEA claim. He also claims that the court erred in requiring Gray to proceed to trial without counsel. Finally, NET claims error in the district court's failure to award it attorney's fees. We affirm the district court in all respects.

The Directed Verdict

The standard of review of a trial court's grant of a directed verdict is well established in this circuit and was most recently articulated in Goldstein v. Kelleher, 728 F.2d 32, 39 (1st Cir.1984) (quoting Carlson v. American Safety Equipment Corp., 528 F.2d 384, 386 (1st Cir.1976) (citations omitted), cert. denied, --- U.S. ----, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984):

In order to uphold a grant of a directed verdict, we must find that, viewing the evidence in the light most favorable to the non-moving party, reasonable jurors could come to but one conclusion. We must give plaintiff the benefit of every legitimate inference. However, such inferences may not rest on conjecture or speculation, but rather the evidence offered must make "the existence of the fact to be inferred more probable than its nonexistence."

Additionally, in reviewing the evidence, the trial judge must come to his or her determination without evaluating the credibility of the witnesses or considering the weight of the evidence. deMars v. Equitable Life Assurance Society, 610 F.2d 55, 57 (1st Cir.1979).

Keeping these principles in mind, our review of the record shows that the plaintiff put forward the following evidence bearing on his ADEA claim. NET was aware of Gray's age--51. Gray had a history of evaluations dating from 1975 to 1980 characterizing his job performance as "completely satisfactory" and which at various times commended him for his attendance record, his safety record, and his diligence in securing easements. There was also testimony that after Gray was dismissed, his job was still extant and was filled by two contract workers aged 58 and 65, who were not salaried employees and did not receive regular benefits.

Gray also introduced the testimony of Paul Donaldson, a senior marketing manager for the firm, Prime Computer. In July 1981, Donaldson was contacted by William Adams, a security manager with NET who was investigating Gray's use of NET phone privileges. Adams contacted Donaldson to determine whether certain calls made by Gray to Donaldson had been business or personal calls. Donaldson testified that, in the course of this telephone interview, Adams

indicated to [Donaldson] that it was his perception, and I assume the phone company's, because he was speaking for them, that Bud Gray had been a valued employee at one point in time, and had a good record, but had literally outlived his usefulness, that it was time to make way for new people within the ranks....

Joint Appendix (hereinafter, "J.A.") at 129. Donaldson further testified as to Adams' statements about Gray's inability to get along with his supervisor because of age differentials.

[I]t was [Adams'] perception, and again I assume the phone company's, that there was a problem between [Gray and his supervisor], because either she had a difficult time relating to [Gray] because [Gray] [was] old enough to be her father, as he stated, or [Gray] to [his supervisor] because she was young enough to be [Gray's] daughter, and [Adams] felt that the age situation probably was an issue in ... his stated inability for [Gray] to either get along or them to get along with [Gray].

J.A. at 132. Gray himself testified along the same lines asserting that he distinctly remembered his supervisor expressing displeasure over Gray's salary being greater than her own.

There was also evidence in the record about a certain "Management Income Protection Plan" (hereinafter, "MIPP") offered by NET. This program, according to Norman Clark, a first level management supervisor, was developed to encourage people to retire early on a voluntary basis so as to reduce the work force; it was directed at employees in the 50 plus age range. Wilfred Ott, a retired network manager of NET, pointed to MIPP as an indication of company problems with age discrimination: "the company took steps to ease people out on retirement, which to me involved age. We didn't want to spend the money to retrain them and go on." J.A. at 67. Ott admitted that he had no expertise with respect to MIPP.

Finally, Gray presented testimony refuting each of the reasons NET asserted as legitimate, non-discriminatory bases for discharging Gray. He claimed that he only did noncompany work, i.e., the serving of process as a deputy sheriff for Hillsborough County, during his lunch hour, rather than on company time. He claimed to be legitimately spending his time at the Hillsborough County court house in legal research related to his job, rather than engaging in activities unrelated to his work for NET. He presented evidence that the company vehicle was in such poor condition that Gray was justified in refusing to drive it. And he also elicited testimony that personal errands which he performed during working hours were customarily done by other NET employees during those hours.

In determining whether the directed verdict can be upheld, we must next ascertain whether the facts presented by the plaintiff sufficiently satisfied his burdens of proof under the ADEA so that the case should have gone to the jury. The district court held that Gray had presented sufficient evidence to establish a prima facie case of discrimination. It also found that NET had met its burden of going forward with evidence to rebut the inference of discrimination, by articulating legitimate, nondiscriminatory reasons for its discharge of Gray. Thus, the burden of production shifted back to Gray to show that the legitimate reason proferred by NET was not the true reason for the discharge decision, but, rather, was a mere pretext, and that Gray's age was a determinative factor in NET's employment decision. Gray, as the plaintiff, of course, retained the ultimate burden of persuasion throughout the case. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979).

Because the prima facie case established by Gray was rebutted by the defendant, the initial inference or presumption of discrimination dissolved. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); Smithers v. Bailar, 629 F.2d 892 (3d Cir.1980). And therefore, the establishment of a prima facie case could not be considered the equivalent of an ultimate finding of discrimination. Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Consequently, whether the directed verdict was properly given must be evaluated by looking at whether the plaintiff presented sufficient evidence as to his ultimate burden of proof on this claim, rather than merely as to his prima facie case. Cf. Dance v. Ripley, 776 F.2d 370, 373 (1st Cir.1985) (Title VII case emphasizing importance of focusing on ultimate burden of proof). The evidence presented as part of the plaintiff's prima facie case, however, may still be considered in determining...