Schuler v. Polaroid Corp., 87-1895

• Decision Date: 11 March 1988
• Docket Number: No. 87-1895,87-1895
• Citation: 848 F.2d 276
• Parties: 46 Fair Empl.Prac.Cas. 1460, 46 Empl. Prac. Dec. P 37,979, 3 Indiv.Empl.Rts.Cas. 532 Norman SCHULER and Grace J. Schuler, Plaintiffs, Appellants, v. POLAROID CORPORATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 276

848 F.2d 276

46 Fair Empl.Prac.Cas. 1460,

46 Empl. Prac. Dec. P 37,979,

3 Indiv.Empl.Rts.Cas. 532

Norman SCHULER and Grace J. Schuler, Plaintiffs, Appellants, v. POLAROID CORPORATION, Defendant, Appellee.

No. 87-1895.

United States Court of Appeals, First Circuit.

Heard March 11, 1988.

Decided May 24, 1988.

Rehearing Denied June 21, 1988.

Edward F. Haber, P.C. with whom John J. Barter, Boston, Mass., was on brief for plaintiffs, appellants.

Kevin J. Fitzgerald, with whom Sandra L. Lynch and Foley, Hoag & Eliot, Boston, Mass., were on brief for defendant, appellee.

Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.

BREYER, Circuit Judge.

Norman and Grace Schuler sued Polaroid Corporation claiming that Polaroid violated federal and state 'age discrimination' laws, 29 U.S.C. Secs. 621-634 (1982); Mass.Gen.L. ch. 151B, Secs. 1-10 (1986) by "constructively discharging" Norman in the summer of 1985. The district court granted Polaroid's motion for summary judgment; the Schulers appeal; we affirm. The questions presented are all evidentiary. Did the Schulers bring to the district court's attention enough evidence to show "genuine" and "material" issues of fact, evidence that would have legally permitted a jury to find in their favor? Fed.R.Civ.P. 56(c). After reading the record (insofar as the appendix contains it), we conclude that the evidence the Schulers offered was insufficient.

The Schulers' claim arises out of the following basic facts: (1) In 1985, Norman Schuler, then 57, was Polarizer Research Manager at Polaroid; he had worked for Polaroid for 33 years; his supervisors had At the outset, we note that Schuler cannot base his 'age discrimination' claim upon the attractive terms that the severance plan offered. That plan was a carrot, not a stick, and for reasons the Seventh Circuit has set forth in Henn v. National Geographic Society, 819 F.2d 824, cert. denied, --- U.S. ----, 108 S.Ct. 454, 98 L.Ed.2d 394 (1987), a 'carrot' cannot ordinarily violate the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (1982); that act does not forbid treating older persons more generously than others. See Bodnar v. Synpol, Inc., 843 F.2d 190 (5th Cir.1988); Gray v. New England Telephone and Telegraph Co., 792 F.2d 251, 255 (1st Cir.1986). Rather, the issue is, severance plan aside, did Polaroid treat Schuler less favorably than it did others? Did it force him to resign by abolishing his job and demoting him, and did it do so on account of his age? See Henn, supra; Bodnar, supra; Gray, supra. The district court believed that Schuler could not prove that the 'demotion' was unattractive enough to have forced Schuler to resign from Polaroid. Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.1986); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977). We affirm its judgment on the alternative ground, suggested by the district court and briefed by the parties, that the Schulers are unable to show age discrimination.

consistently given him good performance ratings. (2) In April 1985, Polaroid announced a company-wide reorganization designed to help reverse a trend of declining profits; Polaroid intended to reduce its salaried work force by 400 employees; Polaroid developed a severance plan (PSP) that offered up to 2 1/2 years' severance pay to select employees as an incentive to resign; the plan offered greater benefits to those with more seniority. (3) Polaroid effectively abolished Schuler's job; Schuler's supervisor, Stewart Bennett, encouraged him to take advantage of PSP. (4) When Schuler said he preferred to remain at Polaroid, Bennett then offered him the position of "Polarizer Information Specialist," a position Schuler considered far inferior to his former position (though pay and benefits were the same). (5) After repeated urging by Bennett, Schuler decided to accept the severance plan and leave Polaroid; he then brought this suit charging that Polaroid in effect forced him to leave because of his age.

This circuit has held that to make out a prima facie case of age discrimination in a reduction in force case, a plaintiff like Schuler must show "that (1) he was in the protected age group; (2) he was performing his job at a level that met his employer's legitimate expectation; (3) he was fired [actually or constructively]; and (4) the employer did not treat age neutrally or that younger persons were retained in the same position." Holt v. Gamewell Corp., 797 F.2d 36, 37-38 (1st Cir.1986). In addition, if the employer offers evidence showing an age-neutral reason for discharge, an employee like Schuler must show the employer's reason was a pretext. Loeb v. Textron, Inc., 600 F.2d 1003, 1011-19 (1st Cir.1979); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (Title VII context). Schuler's evidence here cannot show either.

a. Schuler cannot show that Polaroid failed to "treat age neutrally or that younger persons were retained in the same position" in part because he was not replaced by a younger person; rather, his position was effectively abolished. Bennett stated in his affidavit that when the Polarizer Division, which he ran, was reorganized "the position of Manager of Research and Development ceased to exist and most of the duties previously performed by Norman Schuler ceased to be performed. Dr. Len Polizzotto [who took over Schuler's responsibilities] devoted only a very small percentage of his time--perhaps 5%--to work previously performed by Mr. Schuler." Schuler testified in his own deposition that Polizzotto took over "all" his responsibilities, but he supported that conclusion only by referring to "memorandums outlining agendas of meetings where he took responsibility," memoranda that are not in the record before us. Schuler immediately added that he had not "the slight[est] idea" of what percentage of Polizzotto's Nor can we find Schuler's evidence, as he presents it, sufficient to show that Polaroid failed to "treat age neutrally." Schuler here relies on the fact that Bennett also eliminated the positions of John McGonagle, age 54; Robert Rizzotto, age 52, and Robert Albertazzi, age 44. But the simple fact that Bennett abolished jobs held by three other middle-aged men (3, 5, and 13 years younger than Schuler) does not permit a fact finder to conclude that Polaroid failed to administer its reorganization (potentially affecting 400 employees) neutrally. "The fact that a neutral discharge policy has an adverse effect on a single employee or even a few employees does not itself create such a prima facie case" of discrimination. Holt, 797 F.2d at 38; accord Massarsky v. General Motors Corp., 706 F.2d 111, 121 (3d Cir.1983). Schuler points to nothing about the size of the pool of potentially affected employees, the age or kind of employee likely in the pool, the nature of the work force at Polaroid or in the Polarizer Division, or the way in which these employees were treated that would permit a fact finder to find actionable age discrimination. See, e.g., Simpson v. Midland-Ross Corp., 823 F.2d 937, 942-44 (6th Cir.1987); Dale v. Chicago Tribune Co., 797 F.2d 458, 465 (7th Cir.1986). Schuler seeks to bolster his evidence here by pointing out that three other Polarizer Division employees accepted PSP and left about the same time he did, but he concedes that one of them, John McMullen, age 40, intended to leave regardless; the second, James Racich, 35, left because of performance problems; and the third, Esther Simonini, 55, asked to take advantage of PSP. Schuler adds that eight years earlier Bennett pressured two older employees, Warren Nettleson and Ken Madure, to leave, but Schuler supplies no details. Even if we add these last two examples, Schuler's statistical evidence is too weak and these facts too few (even adding in Schuler's conclusory statements) to permit a jury rationally to find that Polaroid discriminated on the basis of age even had Polaroid introduced no evidence other than that previously mentioned. See Simpson, supra; Dale, supra; see also Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974) (noting in a racial discrimination context that a statistical sample of 13 was too small to permit any significant conclusions about discrimination).

                time was spent performing Schuler's former duties.  Schuler's statements, therefore, do not directly contradict Bennett's.  They are insufficient to permit a jury to find that Polaroid did not abolish the job but rather "retained" a younger person "in the same position."    Holt, supra
                

b. In fact, Polaroid produced additional evidence tending to show that it abolished Schuler's job and offered him another for a legitimate, age-neutral reason. Bennett said in his affidavit:

It was my decision to reorganize the Polarizer Division as part of a generalized corporate effort to cut costs; to eliminate Mr. Schuler's position as Manager of Research and Development; and to make Mr. Schuler eligible for voluntary participation in the Polaroid Severance Plan. This decision was based upon evaluation of Mr. Schuler's abilities as a research manager and the needs of the Polarizer Division. In particular I was not satisfied with the results of the various research projects for which Mr. Schuler had been responsible. This decision was in no way based on Mr. Schuler's age.

Schuler's previous performance evaluations offer some support for this statement, for while they gave Schuler high ratings for his research performance, they expressed disappointment in the results. In 1979, for...