Massarsky v. General Motors Corp.

Decision Date11 May 1983
Docket Number82-5177,No. 82-5177,Nos. 82-5176,No. 82-5176,82-5176,s. 82-5176
Citation706 F.2d 111
Parties31 Fair Empl.Prac.Cas. 832, 31 Empl. Prac. Dec. P 33,516 William MASSARSKY and Gertrude Massarsky, his wife, Appellants inv. GENERAL MOTORS CORPORATION, a corporation of the State of Delaware, Appellant in
CourtU.S. Court of Appeals — Third Circuit

Robert H. Jaffe (argued), Howard G. Schlesinger, Jaffe & Schlesinger, Springfield, N.J., for appellants in 82-5176.

James J. Crowley, Jr. (argued), Linda B. Celauro, Carpenter, Bennett & Morrissey, Newark, N.J., Otis M. Smith, Gen. Counsel, Eugene L. Hartwig, Associate Gen. Counsel, David M. Davis, General Motors Corp., Detroit, Mich., for appellant in 82-5177.

Before ALDISERT, SLOVITER and ROSENN, Circuit Judges.


ROSENN, Circuit Judge.

This complex age discrimination case had its genesis in a decision by General Motors Corporation (the company) to lay off plaintiff William Massarsky in February 1971 as part of its reduction of the plant workforce. At that time, the Company retained a younger employee who was junior in service to Massarsky. Complaining that the Company discriminated on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (ADEA or the Act), 29 U.S.C. Secs. 621 et seq. (1976 & Supp. V 1981), Massarsky brought suit in 1976 in the United States District Court for the District of New Jersey. 1 After a long series of complicated procedural disputes, the case was tried and, based on the jury's answers to special interrogatories, the court entered judgment on all claims in the defendant's favor. Massarsky appeals from the denial of his post-trial motions for judgment notwithstanding the verdict and for a new trial. We affirm. 2


General Motors hired William Massarsky on September 30, 1963, when he was 40 years old. He was assigned on a full-time basis to the process engineering department of the New Departure-Hyatt Bearings Division of the Company at its facility in Clark, New Jersey. On February 28, 1971, after more than seven years of service to the Company, he was laid off from his job as a senior process engineer during a division-wide reduction in force due to an economic downturn.

The system used by General Motors to select employees for layoff was set forth in the company handbook entitled "Working with General Motors." The handbook described the Company's layoff policy as based on the length of the employee's service with the Company, ability, merit, and capacity being equal. 3 Massarsky established at trial (and the Company did not dispute) that employee Joseph Biondo, age 25, was retained during the Company's reduction in force in February 1971. At the time, Biondo was a fifth-year student enrolled in the General Motors Institute (GMI) under a work cooperative program with less than five years of Company service. 4 Notwithstanding that Massarsky had over two years more service than Biondo, the Company furloughed Massarsky but retained Biondo on the basis of an unpublicized company policy exempting GMI students from layoffs. 5

General Motors recalled Massarsky to employment on February 27, 1976. During the five years of his layoff, several openings developed in the process engineering department which the Company filled by transfers and promotions of employees in active service with the Company. This comported with the Company's usual practice of filling vacancies, if possible, by transfers of active employees on the payroll. If no active employee were available, the Company would recall to employment a qualified laid-off employee to fill the vacancy. Three of the active employees who were transferred into the process engineering department during Massarsky's layoff were young GMI students with less service than Massarsky. 6

In his complaint, 7 Massarsky alleged that General Motors had violated the federal Age Discrimination in Employment Act by selecting Massarsky for layoff and by its failure to recall him before 1976. 8 Massarsky proceeded on the theory that General Motors' policy of insulating GMI students from layoff during a reduction in work force at the expense of Massarsky and other older workers with longer service to the Company constituted a per se violation of the ADEA. Plaintiff also contended that the Company's internal policy of assigning GMI students to fill openings in a department while a senior employee was on layoff status also constituted a per se violation of the ADEA. Plaintiff's motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial were all denied. On appeal, plaintiff has limited the issues for review to his ADEA claims and his pendent jurisdiction claim under the New Jersey statute.


The Age Discrimination in Employment Act of 1967, 29 U.S.C. Secs. 621 et seq. (1976 & Supp. V 1981), was intended

to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.

29 U.S.C. Sec. 621(b). Although section 623(a) of the Act in fairly broad terms proscribes discrimination against "any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age," 9 this broad prohibition is modified by section 631(a), which limits the protections of the Act to those between the ages of 40 and 70. 10 See 29 U.S.C. Sec. 631(a). Thus, it is not unlawful for an employer intentionally to discriminate against employees under 40 years of age.

Four exceptions to the ADEA are set forth in section 623(f) of the statute. First, discrimination on the basis of age is allowed "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. Sec. 623(f)(1). Second, the Act permits covered entities to "observe the terms of a bona fide seniority system or any bona fide employee benefit plan." Id. Sec. 623(f)(2). Third, it is not unlawful for an employer to The United States Supreme Court has said little about the elements of a cause of action under the ADEA. However, because in many respects the provisions of the ADEA parallel those of Title VII, many courts have adapted to issues of age discrimination the principles of law applicable to cases arising under Title VII of the Civil Rights Act. 12 See Douglas v. Anderson, 656 F.2d 528, 531-32 (9th Cir.1981); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Schwager v. Sun Oil Co., supra, 591 F.2d at 60-61; Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). A Title VII plaintiff may prosecute his claim under either of two distinct legal theories. First, he may allege that he is the victim of intentional discrimination, i.e., that his employer applied an expressly race-based or sex-based standard in its treatment of the plaintiff. This "disparate treatment" theory traces its roots to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Alternatively, he may rely upon the so-called "disparate impact" theory of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). This theory applies when the employer's adverse action resulted not from any discriminatory motive but simply from application of facially neutral criteria that are alleged to have a disproportionate impact on members of the protected class and which cannot be justified by business necessity. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). See also Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981).

"discharge or otherwise discipline an individual for good cause." Id. Sec. 623(f)(3). Finally, the Act permits employers to discriminate "based on reasonable factors other than age." Id. Sec. 623(f)(1). 11

From what we can determine, the plaintiff in the instant case apparently has attempted to straddle these two theories of discrimination. Massarsky argues simply that General Motors failed to present a legally sufficient defense to the plaintiff's prima facie case under the ADEA. We therefore analyze his claim under both the disparate treatment and disparate impact theories. In so doing, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the Company, the prevailing party in the trial court. Schwager v. Sun Oil Co., supra, 591 F.2d at 62; Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).


A plaintiff alleging disparate treatment, whether under Title VII or under the ADEA, bears the ultimate burden of persuading the jury that his treatment was "caused by purposeful or intentional discrimination." Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980). See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). But because it often will be difficult for the plaintiff to obtain direct evidence of the employer's motive Once the employer presents evidence showing lawful justification for its treatment of the plaintiff, the plaintiff must then prove that the asserted reason was merely a pretext for unlawful discrimination. The ultimate burden of persuasion remains on the plaintiff at all times; the defendant's burden is only to introduce sufficient evidence to create a genuine factual issue concerning...

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