Johansen v. NCR Comten, Inc.

• Decision Date: 29 May 1991
• Docket Number: No. 89-P-1395,89-P-1395
• Citation: 30 Mass.App.Ct. 294,568 N.E.2d 611
• Parties: , 55 Fair Empl.Prac.Cas. (BNA) 983 Harry G. JOHANSEN v. NCR COMTEN, INC.
• Court: Appeals Court of Massachusetts

Page 611

568 N.E.2d 611

30 Mass.App.Ct. 294, 55 Fair Empl.Prac.Cas. (BNA) 983

Harry G. JOHANSEN v. NCR COMTEN, INC.

No. 89-P-1395.

Appeals Court of Massachusetts Middlesex.

Argued Jan. 10, 1991.

Decided March 22, 1991.

Further Appellate Review

Denied May 29, 1991.

John W. Marshall, Boston, for plaintiff.

S. Elaine McChesney (Robert A. Buhlman with her), Boston, for defendant.

Before KASS, KAPLAN and GILLERMAN, JJ.

KASS, Justice.

Aggrieved by an adverse judgment (founded on a jury verdict) concerning his age discrimination claim, the plaintiff, Harry G. Johansen, argues that the trial judge, in his charge to the jury, failed to allocate correctly the respective evidentiary burdens of the parties. We affirm.

Johansen brought an action against NCR Comten, Inc. (NCR), alleging that it terminated his employment for reasons proscribed by the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1) (1976) ¹ and its Massachusetts analogue, G.L. c. 151B, §§ 4 and 9. ² Only the Federal claim was tried to the jury; the judge, by arrangement with the parties, was to take the jury's finding on an advisory basis as to the State claim. The jury returned a verdict of "no" to the question: "Was Mr. Johansen's age the determining factor in his discharge?" The judge similarly found, on the State claim, that "the [plaintiff's] age was not the determining factor in his discharge." Judgment entered for the defendant NCR on both counts.

We review the salient facts which the evidence allowed the jury to find. Before Johansen, then fifty years old, was hired as a sales representative (the precise date of hire was April 7, 1980), Gerry Garrett, the branch manager of NCR's Waltham office (it covered the New England region), while sifting through applications, remarked about Johansen's resume, "This man is way too old for this job." However, after interviewing Johansen and about nine other finalists, Garrett selected Johansen. The other applicants were all under age forty. Garrett thought Johansen might particularly fill the bill of minding and binding existing customers because he had sales experience and would be familiar with how purchasing decisions were made by large companies. "He was a silver-haired, distinguished-looking gentleman," Garrett observed, who "we felt would represent the company the way we wanted it represented in the Stone & Webster [Engineering Corporation] and New England Telephone Company." To develop new customers and territories, Garrett, at the time he hired Johansen, engaged a less experienced "high energy level" person.

Less than nine months later, on December 5, 1980, NCR fired Johansen. His six-month review contained adverse observations about his knowledge of the NCR product line, the poor quality of his written reports and oral presentations ("he was just no good on his feet"), and the amount of work he was putting into the job. Johansen's position at NCR was particularly undermined by a complaint from a major customer, Stone and Webster Engineering, that Johansen could not get an accurate purchase contract together. The adverse comment had been made at an encounter in San Diego between Hervey Bailey of Stone and Webster and NCR's vice president for sales, Edward Clark. Bailey gave Clark to understand that "he couldn't even get a proper replay of what he was feeding the sales rep." Clark traveled from NCR's home base in Minneapolis to size up the situation in Boston. He had salesmen make presentations and formed an unfavorable impression of Johansen. Clark decided Johansen should be discharged and left "implementation" to the people in the regional office to whom Johansen reported.

Before we turn to the instruction that Johansen wanted and did not get, we recapitulate what was, before the decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the standard (although not the only) method of allocating evidentiary burdens in cases involving discrimination based not on job qualifications but on forbidden grounds such as race, gender, religion, national origin, or age. The initial burden is on the plaintiff to produce evidence of unlawful discrimination, i.e., to make a prima facie case. ³ If the plaintiff manages to make a prima facie case, the burden shifts to the defendant to produce evidence of lawful reasons for firing or not hiring the plaintiff. Should the defendant succeed in so doing, the burden shifts back to the plaintiff to establish by a preponderance of the evidence that the reasons, ostensibly legitimate, put forward by the employer are a pretext for the real reason, unlawful discrimination. This allocation of evidentiary burdens was explicated in two leading cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The approach was expounded locally in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138-139, 355 N.E.2d 309 (1976); Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229-232, 380 N.E.2d 121 (1978); Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 566-567, 428 N.E.2d 124 (1981); Comey v. Hill, 387 Mass. 11, 17-18, 438 N.E.2d 811 (1982); and Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979). ⁴

Part of the plaintiff's request for jury instructions followed the criteria first announced in the McDonnell case, supra. Included in the plaintiff's request for instructions, however, was the following, which provides the focus of the appeal:

"It is possible on the evidence presented that you will conclude that Mr. Johansen's age was one reason but not the only reason for his termination. It is not necessary for Mr. Johansen to convince you that his age was the only reason for the termination. Age may be one of a number of factors contributing to the [d]efendant's action. If Mr. Johansen proves to you that age was a factor, you must find in his favor unless the [d]efendant proves to you that Mr. Johansen would have been terminated even if it were not for his age. In other words, if Mr. Johansen proves that age was a factor, the [d]efendant must prove that age was not a determinative factor."

Under that requested instruction, the burden fell on NCR to prove that age was not a determinative factor. In the classic formulation of the McDonnell and Burdine cases, supra, the burden remained with the plaintiff to prove that his job performance or other lawful reasons given by the employer were a pretext. The judge's instruction adhered generally to the McDonnell- Burdine formula. The pertinent portion of the instruction appears as an appendix to this opinion. ⁵ The McDonnell- Burdine allocation of evidentiary burdens presupposed that the evidence of unlawful discrimination would be circumstantial. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). It was not likely that employers would declare forbidden bias frontally by, e.g., the publication of policy statements that blacks would be excluded from executive positions or that employees over the age of fifty were to be phased out at the earliest opportunity. Rather, most cases of unlawful discrimination would be stitched together from hiring and discharge patterns, other acts of discrimination, and the absence of plausible explanation for the employment decision. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. at 228 n. 9, 380 N.E.2d 121. Passing over the job application of a member of the protected class is the sort of evidence that has given rise to an inference of unlawful discrimination. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 357-358, 97 S.Ct. 1843, 1865-1866, 52 L.Ed.2d 396 (1977).

In the aftermath of McDonnell and Burdine, there developed a line of cases which observed that a different allocation of evidentiary burdens was called for when there was evidence of declared animus or discrimination against the protected group. When unlawful discrimination was established as present in the employment setting the employer was required not only to prove that there was a lawful reason for the employment decision but also to prove by a preponderance of the evidence that it would have made the same employment decision even though it may have taken age, gender, race, or other improper categorization into account. See Trans World Airlines, Inc. v. Thurston, 469 U.S. at 121, 105 S.Ct. at 621; Blalock v. Metals Trades, Inc., 775 F.2d 703, 707, 711-712 (6th Cir.1985); Fields v. Clark University, 817 F.2d 931, 935-936 (1st Cir.1987). Those cases and others like them make a dichotomy between "direct" and "indirect" evidence of unlawful discrimination; if the evidence is "indirect," the McDonnell- Burdine allocation of burdens applies; if the evidence is "direct," the employer carries the burden of persuading the finder that lawful considerations dictated the employer's action, notwithstanding the presence of animus based on age, race, etc.

We shy from the direct-indirect evidence terminology because it is too elusive a guide. Direct evidence has been described as evidence which "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir.1989). Yet short of something so implausible as an employer acknowledging that it failed to employ Asian-Americans or to promote women as matter of policy, the process of arriving at an ultimate finding of unlawful discrimination will require an element of inference to tie the evidence of unlawful discrimination to the employment decision. For example, an expression of conviction by an executive who has personnel responsibilities that "new young blood" is...