Pena v. Brattleboro Retreat, 624

• Decision Date: 01 March 1983
• Docket Number: No. 624,D,624
• Citation: 702 F.2d 322
• Parties: 31 Fair Empl.Prac.Cas. 198, 31 Empl. Prac. Dec. P 33,416 Helen A. PENA, Appellee, v. BRATTLEBORO RETREAT, Appellant. ocket 82-7598.
• Court: U.S. Court of Appeals — Second Circuit

Page 322

702 F.2d 322

31 Fair Empl.Prac.Cas. 198,

31 Empl. Prac. Dec. P 33,416

Helen A. PENA, Appellee, v. BRATTLEBORO RETREAT, Appellant.

No. 624, Docket 82-7598.

United States Court of Appeals, Second Circuit.

Argued Jan. 6, 1983.

Decided March 1, 1983.

David A. Gibson, Brattleboro, Vt. (Weber, Perra & Gibson, Brattleboro, Vt., of counsel), for appellant.

Peardon Donaghy, Barre, Vt. (Abare, Donaghy & Nicholls, P.C., Barre, Vt., of counsel), for appellee.

Before KEARSE, WINTER and PRATT, Circuit Judges.

WINTER, Circuit Judge:

Brattleboro Retreat appeals from a jury verdict and a judgment for $30,000 in damages entered in favor of Helen A. Pena after a two day trial before Judge Coffrin in the United States District Court for the District of Vermont. Pena claimed that the Retreat, her former employer, had violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634 (1976, Supp. IV 1980 & Supp. V 1981) in discharging her. The Retreat contends that Judge Coffrin erred in denying its motions for a directed verdict after the plaintiff's case in chief and for a judgment notwithstanding the verdict. Because we agree that the evidence presented by Pena did not establish a prima facie case under the ADEA, we reverse.

I

The Brattleboro Retreat is a psychiatric hospital which provides allied services including those of a nursing home known as Linden Lodge. In January, 1975, after discussions with Dr. William Beach, Chief Executive Officer of the Retreat, Mrs. Pena, then 58 years old, was hired to serve as coordinator of the various functions and services offered by the Retreat, reporting directly to Dr. Beach. Mrs. Pena was promoted in stages to the position of administrator of Linden Lodge, a position she held until 1980. Mrs. Pena was responsible for supervising the day to day operations of Linden Lodge, including its employees and staff, for maintaining communications with various state and federal oversight and funding agencies, and for lobbying efforts on behalf of the Retreat involving the Vermont state government. She was considered particularly adept at dealing with agency regulations and at acting as an advocate for the hospital in government circles.

Mrs. Pena suggested, apparently in the spring of 1978, that someone be trained to take over her position after her planned retirement in August, 1981. As a consequence, and on Mrs. Pena's recommendation, a woman in her early thirties named Mary Horan was hired as an assistant administrator for the Lodge.

At trial, Mrs. Pena, as the sole witness on her behalf, contended that a February 13, 1980 meeting was the first in a series of events which constituted a constructive discharge from her position as administrator of Linden Lodge, and that because she was replaced by a younger woman, Mary Horan, her discharge was due to her age. The Retreat claimed that Mrs. Pena resigned due to her own inability to adjust to the reasonable demands of her employer and that the parting of the ways between Mrs. Pena and the Lodge was unrelated to age. After the conclusion of the Retreat's case, the jury returned a verdict in favor of Mrs. Pena and a damage award for $24,153.75 plus twenty-five percent for fringe benefits plus full pension benefits, which the Court found to be inconsistent and to contain a gratuity. Judge Coffrin therefore set aside the damage award and recomputed the damages to the sum of $30,000, a figure to which both parties agreed.

II

The Supreme Court has stated, regarding motions for directed verdicts and judgments n.o.v.,

When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding ... without submission to the jury .... By such direction of the trial court the result is saved from the mischance of speculation over legally unfounded claims.

Brady, Administratrix v. Southern Railway Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234-35, 88 L.Ed. 239 (1943). The standard in this circuit is whether "the evidence, viewed in the light most favorable to the non-movants without considering credibility or weight, reasonably permits only a conclusion in the movants' favor." Sirota v. Solitron Devices, Inc., 673 F.2d 566, 573 (2d Cir.1982); Samuels v. Health and Hospitals Corp., 591 F.2d 195, 198 (2d Cir.1979); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970).

Pena's action was brought under the ADEA which provides that it "shall be unlawful for an employer ... to discharge any individual ... because of such individual's age." 29 U.S.C. Sec. 623(a)(1). However, the Act specifically provides that it is not unlawful for an employer to base its decision on "reasonable factors other than age," or to discharge an individual "for good cause." 29 U.S.C. Sec. 623(f)(1)(3).

The plaintiff has the burden of proving that "age was the 'determining factor' in his discharge in the sense that, 'but for' his employer's motive to discriminate against him because of age, he would not have been discharged." Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979). The standards relating to burden and order of proof in Title VII cases apply as well to cases arising under the ADEA. See e.g., Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978); Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981); Loeb v. Textron, supra. Those standards were most recently enunciated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), in which the Court explained:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

(citations omitted).

Given the nature of Mrs. Pena's claim, a prima facie case of age discrimination would consist of sufficient evidence to support a finding that (i) she was in the protected age group, (ii) she was qualified for her job, (iii) she was discharged, and (iv) the discharge occurred in circumstances which give rise to an inference of age discrimination. Id.

We hold that Mrs. Pena failed to produce evidence that she was discharged. She did not, therefore, establish a prima facie case and a verdict in favor of the defendant should have been directed at the close of her case in chief. ¹ Mrs. Pena's testimony, the only evidence offered in her behalf, was to the following effect: On February 13, 1980, she and Dr. Beach held their regular Tuesday meeting. Dr. Beach began it with the rather blunt statement, "Helen, I would like you to step down." When Mrs. Pena failed to respond, he added, "I would like Mary Horan to take over the running of the day-to-day of Linden Lodge. I would like her to learn from you." He then further explained that, "You know there comes a time for all of us to relinquish responsibility." Mrs. Pena's testimony made it clear that she understood this to mean not that her employment ties with Linden Lodge and the Retreat should be severed, but rather that she should serve as backup to Mary Horan so Horan might obtain comprehensive experience in running the home while Pena was still available to help her. Indeed, Dr. Beach said that it was important to delegate authority to subordinates and made it clear that Mrs. Pena would retain the title of administrator of Linden Lodge and would continue to supervise Ms. Horan's work during this period. Moreover, the understanding was that Mrs. Pena would continue to receive the same salary she had been receiving all along.

Mrs. Pena described her reaction to this suggestion in the following way: "[t]he [delegation of authority] is what he was expecting, apparently. But it came as a shock." When she asked Dr. Beach...