Lehman v. Prudential Ins. Co. of America

• Decision Date: 11 September 1995
• Docket Number: No. 95-1523,95-1523
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1752, 67 Empl. Prac. Dec. P 43,906, Pens. Plan Guide P 23918A William R. LEHMAN, Plaintiff, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 323

74 F.3d 323

69 Fair Empl.Prac.Cas. (BNA) 1752,

67 Empl. Prac. Dec. P 43,906,

Pens. Plan Guide P 23918A

William R. LEHMAN, Plaintiff, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant, Appellee.

No. 95-1523.

United States Court of Appeals, First Circuit.

Heard Sept. 11, 1995.

Decided Jan. 22, 1996.

Scott A. Lathrop, Boston, MA, for appellant.

Alice E. Richmond with whom John Foskett and Deutsch Williams Brooks DeRensis Holland & Drachman, Boston, MA, were on brief, for appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

William R. Lehman, a former employee of the Prudential Insurance Company of America ("Prudential"), sued in the district court for age discrimination in violation of the Massachusetts Fair Employment Practices Act, Mass.Gen.L. ch. 151B, Sec. 4, and for pension discrimination in violation of section 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Sec. 1140. The district court granted Prudential's motion for summary judgment on both counts and denied plaintiff's motion for reconsideration. Lehman appealed. We affirm.

I.

We summarize the facts in the light most favorable to Lehman, the party opposing summary judgment. Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir.1995).

Prudential hired Lehman in late 1974 to work as a brokerage manager for the Greater New York Brokerage Agency. In 1978, Lehman was relocated and promoted to agency manager of the brokerage agency in Boston, Massachusetts. In 1986, Prudential expanded the territory of the agency run by Lehman, making him director of its New England Brokerage Agency which included all of New England except Fairfield County in Connecticut. Even after the expansion, the New England agency was relatively small; nevertheless, it performed very well under Lehman's direction. In 1988, Prudential created Pru Select, a separate sales division of Prudential's life insurance business, to supervise the twelve regional brokerage agencies. Ira Kleinman was appointed President of Pru Select, and he hired Roger Dunker as Pru Select's Senior Vice President. Dunker, along with Lehman's prior supervisors, gave Lehman glowing performance reviews.

Effective January 1, 1990, Pru Select revised its pension plan by changing the commencement year for calculating average eligible earnings from 1979 to 1983, benefitting more senior employees, and by providing a 50% annuity to widows without charge to the employee, benefitting Lehman whose wife is fifteen years younger than he. Lehman projected the additional cost to Prudential of his pension, in light of the above modifications, to be $500,000.

Also at that time, Pru Select overhauled and streamlined its brokerage agencies. It consolidated its twelve regions and directors into five regions and seven directors. In December of 1990, Dunker told Lehman that as of April 1, 1991, his New England office was going to be consolidated with the entire New York territory and part of the New Jersey territory. Lehman was to assume the duties and compensation scheme of a brokerage manager and report to the co-managing directors in the newly created Northeast region: Robert Kiley, the pre-consolidation director of the New York office, and the newly hired David Dietz. According to Lehman, his income potential as brokerage manager could be less than 25% of what it had been as a director. Lehman was instructed to formulate his own unit of brokers in New England from whom he could solicit business. However, he did not feel that this was possible, and after several meetings in which he attempted to define his new unit, he wrote to Dunker stating that the reassignment of his responsibilities constituted involuntary termination motivated by age discrimination. Lehman then accepted an early retirement package.

Before the merger, Lehman, aged 61, directed the New England office, and Kiley, aged 57, directed the New York office. After consolidation of the two offices into the new Northeast region, the latter was headed jointly by Kiley and the 42-year-old Dietz. According to Lehman, the post-consolidation directors had the same responsibilities as the pre-consolidation directors, but instead of being geographically separated, their responsibilities were now more specialized. The overall results of the various regional consolidations were that four of the twelve pre-consolidation directors, aged 63, 57, 57, and 42, were appointed to director positions. One of the pre-consolidation directors, aged 62, retired. The remaining seven pre-consolidation directors, aged 61 (Lehman), 47, 45, 45, 45, 41, and 37, were demoted to brokerage managers. The three newly appointed directors were aged 42, 42, and 40.

II.

This court reviews the district court's grant of summary judgment de novo. Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993). Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, shows no genuine issue of material fact, the moving party being entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Lareau v. Page, 39 F.3d 384, 387 (1st Cir.1994). "Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

Age Discrimination Claim

Lehman alleges that his employer, Prudential, unlawfully discriminated against him on the basis of his age, in violation of Mass.Gen.L. ch. 151B, Sec. 4. ¹ Under Massachusetts law, discrimination claims are analyzed and reviewed under a three stage order of proof. See Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 355 N.E.2d 309, 313-14 (1976) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). The first stage consists of ascertaining whether the plaintiff has made out a prima facie case of discrimination. If so, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its employment decision. In the third stage, the plaintiff must establish either that the employer's reason was a pretext or that the actual reason for the adverse employment decision was discrimination. ² Blare v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 646 N.E.2d 111, 115-17 (1995).

To make out a prima facie case, Lehman had to show by a preponderance of the evidence that (1) he was a member of the protected class; ³ (2) he was qualified for the position in question; (3) he was denied the position; and (4) his employer sought to fill the position by hiring a younger individual with qualifications similar to those of the plaintiff. ⁴ See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Beal, 646 N.E.2d at 136; Blare, 646 N.E.2d at 115. "[T]he burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). See also Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.), cert. denied, 502 U.S. 861, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991). The district court found that Lehman failed to present evidence showing that he was qualified for the co-managing director position and that the individual who was hired had qualifications similar to his. The court held, therefore, that Lehman had not presented a prima facie case against Prudential. Since we find plaintiff did not meet his burden, in the context of summary judgment, of establishing pretext, we need not tarry over the prima facie case issue. See Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993) (a court of appeals may affirm "on any independently sufficient ground made manifest by the record").

Even assuming a prima facie case was made, the burden shifted to Prudential to provide a legitimate business reason for its hiring decision. ⁵ As the district court found, Prudential's stated business reason for not hiring Lehman as co-managing director was legitimate and non-discriminatory; it was also sufficiently supported in the record to satisfy the requirements of Massachusetts law. See Woods v. Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir.1994).

Prudential's asserted reason for hiring Dietz was that Dietz's qualifications were more in line with its needs than those of Lehman. See id. at 261. Kleinman and Dunker believed that Dietz would best add the qualities required for the Northeast co-managing director position alongside of Kiley. In support of Prudential's asserted reason was a considerable body of evidence indicating that Dietz could reasonably be regarded as better suited to that position than Lehman: (1) Dietz had greater experience in the supervision of national marketing efforts; (2) Dietz had greater experience in managing large insurance organizations; (3) Dietz had greater recognition as a leader in the life insurance industry; and (4) Dietz got along better with the other co-managing director, Kiley. Prudential, therefore, met its second stage burden.

In the third stage, the burden returned to Lehman to produce evidence sufficient to support a jury verdict that it was more likely than not that (1) Prudential did not offer Lehman the position he desired because of his age; or (2) Prudential's reason for not offering Lehman that position was a "pretext." See Blare, 646 N.E.2d at 118. " '[E]vidence which may be relevant to the plaintiff's showing of pretext may include application of a certain criterion to employees [not within the protected category]; the employer's general practice and policies concerning employment of [those within the...