Lipchitz v. Raytheon Company

• Decision Date: 08 February 2001
• Citation: 751 NE 2d 360,434 Mass. 493
• Parties: MARTHA C. LIPCHITZ v. RAYTHEON COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 493

751 NE 2d 360

MARTHA C. LIPCHITZ v. RAYTHEON COMPANY.¹

Supreme Judicial Court of Massachusetts, Middlesex.

February 8, 2001.

July 9, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Joan A. Lukey (Mary B. Strother with her) for the defendant.

Jody L. Newman (Phyllis A. Flora with her) for the plaintiff.

Marisa A. Campagna, Betsy Ehrenberg & James S. Weliky for National Employment Lawyers Association, Massachusetts Chapter & others, amici curiae, submitted a brief.

SPINA, J.

Martha C. Lipchitz brought this civil action in 1995 against her employer, Raytheon Company, alleging that she was denied a promotion to the position of corporate medical director (CMD) because of her gender in violation of G. L. c. 151B, § 4.² The jury returned a verdict for the plaintiff and awarded her $500,000 in compensatory damages, including $30,000 in back pay, $150,000 in front pay, and $320,000 for emotional distress. Raytheon filed several posttrial motions, all of which were denied, except for Raytheon's motion for remittitur.³ The plaintiff moved for attorney's fees and costs and received an award of $225,000 and $20,681, respectively.

Raytheon appealed, and we granted its application for direct appellate review. Raytheon claims that the jury were improperly instructed that the plaintiff was only required to prove "pretext" rather than "pretext for discrimination," and that it was entitled to an instruction that gender was "the determinative factor" in the promotion decision. We do not adopt Raytheon's argument as to how a jury should be instructed on the question of pretext. We conclude, however, that Raytheon was entitled to an instruction that the plaintiff had the burden of proving the elements of discriminatory animus, and that discrimination was "the determinative cause" of the adverse employment decision as we later define that term. We vacate the judgment and remand the case to the Superior Court for a new trial.

We further recommend that in discrimination cases based on indirect evidence, judges abandon the use of jury instructions that rely on the terms "pretext" and "pretext for discrimination," and that are framed in terms of shifting burdens.

1. Background Facts.

In 1975, Lipchitz began working as a physician in the medical department of Raytheon's largest manufacturing plant located in Andover. The department was responsible for performing physical examinations and providing on-site general and emergency medical services for the plant's 5,000 to 7,000 employees. In 1980, Lipchitz was promoted to manager of the Andover plant's medical services department, in which capacity she supervised the plant's medical department and staff. In addition to her regular administrative duties (including, for example, coordinating and monitoring the medical care of individuals receiving workers' compensation, attending meetings, and writing reports), she also took the initiative to study health and safety issues affecting Raytheon's employees, such as substance abuse, and developed teaching modules for plant supervisors on those subjects. At the time of trial in 1997, Lipchitz continued to be employed by Raytheon in this position.

From 1980 until 1993, Lipchitz reported directly to Andover plant managers, and had a "dotted-line" supervisory relationship with the CMD, Stephen Alphas.⁴ Throughout those years, Lipchitz received highly favorable written performance reviews, the vehicle by which recommendations for merit increases generally were made. Lipchitz's favorable evaluations resulted in a salary that was at the upper end of the salary grade for her position, as well as frequent bonuses and, eventually, stock options.⁵

In addition to the performance evaluations, Lipchitz wrote annual or biennial self-evaluations in which she catalogued her contributions and accomplishments, and noted her strong desire to advance into a corporate position. The only corporate position available to a practicing medical doctor was the CMD position, and as the years went by Lipchitz made known her desire to fill that position when Alphas retired. Her performance evaluations noted both her desire for advancement and her capacity for a management position.

In 1988, after he underwent bypass surgery, Alphas continued in the CMD position but his superiors raised with him the question of who would succeed him. In 1989, Alphas hired Harry Azadian as a full-time plant physician. Azadian was a long-time acquaintance and colleague of Alphas and had been working one day a week at Raytheon since 1977. Lipchitz presented evidence to suggest that both the decision to offer Azadian the full-time position and the manner in which he was hired reflected Alphas's expectation that Azadian would be his successor. There was additional evidence to suggest that this view was shared by Azadian.

A job description for the position was written in 1990 and required that the CMD be "[b]oard [c]ertif[ied] in an appropriate area of specialization." Azadian was board certified as a general surgeon; Lipchitz was not board certified. Alphas, the outgoing CMD, had not been board certified.

Raytheon argued that its reason for passing over Lipchitz in favor of Azadian was primarily difficulties over the years between Lipchitz and Alphas, the CMD, as well as between her and various managers within the Andover plant.⁶ Lipchitz had pushed hard for certain opportunities she deemed necessary for her professional advancement, but the response she received from Andover plant managers was negative and, on occasion, patronizing.⁷ At the same time, she tended to rebuff requests from Alphas and other managers to take on additional responsibilities, requests that might have been viewed by them as ways to earn opportunities for advancement. Her superiors perceived her as unwilling to take on extra work without asking for additional compensation, and unwilling to be a "team player."⁸ These perceptions were reflected in notations made on documents relevant to, and contemporaneous with, the promotion decision. Testimony regarding the difficulties with her superiors was corroborated by Lipchitz's desk diary in which she had recorded her disagreements with various managers and supervisors over the years. These difficulties were not mentioned in Lipchitz's annual reviews or in her self-evaluations.

Alphas retired in January, 1994, and Azadian was promoted shortly after. Rather than receive a full promotion to CMD and a salary increase to that position's salary grade, Azadian was appointed the acting CMD and his salary remained unchanged. The vice-president of human resources testified that Azadian was appointed to this provisional position because Alphas's retirement was the opportunity he had been awaiting to consider reorganizing the medical department or outsourcing medical services. It was possible that such a change would eliminate the the CMD position. Testimony revealed, however, that as acting CMD, Azadian had all the authority of the CMD, and he expressed his belief that his title and salary had been on hold because of the litigation.⁹

2. Sufficiency of the Evidence on Liability.

After the close of the plaintiff's evidence, Raytheon moved for a directed verdict. On appeal, it argues that there was insufficient evidence to support a finding of pretext at the third stage of the now-familiar order of proof originally set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by us in Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130 (1976).

The plaintiff presented sufficient evidence from which a reasonable jury could find that at least one of Raytheon's reasons was false and from this it properly could have inferred that she was not promoted because of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000). The reasons Raytheon presented for its decision were Lipchitz's lack of board certification, and the personal and workstyle difficulties she had with members of management. However, where Lipchitz's performance evaluations included comments suggesting that she was qualified to hold a management position, the jury could have found that the question of board certification was not the reason Lipchitz had not been promoted, and in other circumstances, the lack of board certification might have been accommodated.¹⁰ In addition, the jury could have credited Lipchitz's contention that the difficulties she had with Alphas, the CMD, and her Andover managers were not the result of her personality and workstyle and therefore, were the result of gender bias. If the jury found Lipchitz to be a credible witness, and discredited the testimony of Raytheon's witnesses, the jury could reasonably have believed that, had she been a man, her strict adherence to her principles and the official lines of command and her determination about advancing her career, might have been viewed with admiration rather than resentment.

"The ultimate issue of discrimination, raised by the [parties'] conflicting evidence as to the defendant[`s] motive, is not for a court to decide on the basis of [briefs and transcripts], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses." Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 (1995). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998). Viewing the evidence in its light most favorable to the plaintiff, the evidence was sufficient to support a finding that at least one of the reasons advanced by Raytheon was false, from which the jury could have inferred that the plaintiff was denied a promotion because of her gender. See Abramian v. President & Fellows of Harvard College, supra at 118. The motion for a directed verdict was properly denied.

We do not address Raytheon's argument that the verdict was...