Wennik v. Polygram Group Distribution, Inc.

• Decision Date: 10 September 2002
• Docket Number: No. 01-1093.,No. 01-2125.,No. 01-1092.,01-1092.,01-1093.,01-2125.
• Citation: 304 F.3d 123
• Parties: Paul WENNIK, Plaintiff, Appellee/Cross-Appellant, v. POLYGRAM GROUP DISTRIBUTION, INC., Defendant, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 123

304 F.3d 123

Paul WENNIK, Plaintiff, Appellee/Cross-Appellant, v. POLYGRAM GROUP DISTRIBUTION, INC., Defendant, Appellant/Cross-Appellee.

No. 01-1092.

No. 01-1093.

No. 01-2125.

United States Court of Appeals, First Circuit.

Heard May 9, 2002.

Decided September 10, 2002.

COPYRIGHT MATERIAL OMITTED

Craig R. Benson, with whom James P. Clark, Rains & Pogrebin, P.C., Ann Pauly, and Richmond, Pauly & Ault LLP, were on brief, for defendant.

Harold L. Lichten, with whom Betsy Ehrenberg, Shannon Liss-Riordan, and Pyle, Rome, Lichten & Ehrenberg, P.C., were on brief, for plaintiff.

Before BOUDIN, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff-appellee/cross-appellant Paul Wennik brought suit against his former employer, defendant-appellant/cross-appellee PolyGram Group Distribution, Inc., alleging age and mental handicap discrimination and retaliation in violation of Mass. Gen. Laws ch. 151B.¹ A jury found for Wennik on the handicap discrimination claim and for PolyGram on the age discrimination claim. PolyGram appeals the handicap discrimination verdict and the district court's award of attorneys' fees. Wennik cross-appeals on the age discrimination verdict. We AFFIRM the verdict on both the age and handicap discrimination claims and REMAND to the district court on the issue of attorneys' fees.

I. BACKGROUND

A. Procedural History

Wennik brought suit against PolyGram in state court in Massachusetts, alleging handicap and age discrimination and retaliation in violation of Mass. Gen. Laws ch. 151B. The case was removed to federal court on the basis of diversity jurisdiction. At the close of Wennik's case, PolyGram moved for judgment as a matter of law on all Wennik's claims pursuant to Rule 50 of the Federal Rules of Civil Procedure. The district court reserved decision on the motion, and PolyGram renewed the motion at the close of all the evidence. The district court granted the motion in part, but allowed the age and handicap claims related to the field marketing manager position to go to the jury.² The jury returned a verdict in favor of Wennik on the handicap discrimination claim, awarding $323,000 in back pay, $60,000 in damages for emotional distress, and $21,000 in punitive damages. The jury found in favor of PolyGram on the age discrimination claim. After entry of the judgment,³ PolyGram again moved for a directed verdict pursuant to Rule 50, and the district court again denied the motion. The district court awarded attorneys' fees of $397,328.15 and costs of $8,961.91 to plaintiff.

Following entry of the judgment, the district court denied Wennik's motion to alter or amend the judgment so as to enter judgment on his age discrimination claim.⁴

B. Facts

We recite the facts as the jury might have found them, consistent with the record, but in the light most favorable to the verdict. See Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288, 292 (1st Cir.1999); Sinai v. New Eng. Tel. & Tel. Co., 3 F.3d 471, 472 (1st Cir.1993).

From 1975 to 1996, Wennik worked for PolyGram as branch manager of the company's northeast branch, based in Woburn, Massachusetts. From October 1995 until May 1996, Wennik took a medical leave of absence due to depression and anxiety disorder, a psychiatric disability that is the basis for his mental handicap claim. Just before his leave, in October 1995, Wennik met with PolyGram's president and CEO, James Caparro, at which time Caparro asked Wennik several times if he wished to retire. Wennik said this was not a viable option for him financially. Wennik returned to work in May 1996 and continued to serve as branch manager for the northeast until August 1, 1996. On that day, PolyGram announced that it was eliminating all nine of its branch manager positions as part of a company-wide reorganization and creating four regional director positions in their place.

As a result of the reorganization, Wennik's position as northeast branch manager was eliminated. At fifty-nine years of age, Wennik was the oldest of the nine branch managers. He expressed support for the reorganization plan and stated his willingness to consider retiring. He attempted to negotiate a greater severance package than what PolyGram was offering, but the company was unwilling to provide this.

After the reorganization, seven of the nine branch managers were given new positions within the company without having to formally apply. Only Wennik and one other branch manager, who left PolyGram for a job with another company, were not given new positions. Instead, PolyGram encouraged Wennik to interview for the newly-created field marketing manager position based in the New York regional office.

In August 1996, Wennik interviewed for this position with Ron DiMatteo, the newly-appointed northeast regional director. Prior to his interview, Wennik inquired about the possibility that the position be based in Boston, but DiMatteo informed him this was not an option. During the interview, Wennik expressed concerns about relocating to New York and again inquired about performing the job while living in Boston. DiMatteo again informed him that the company was unwilling to consider such an arrangement. At the interview, Wennik asked DiMatteo to put the issue of relocation aside and instead tell him whether he was a good candidate for the job, at which point he would be able to discuss the issue with his wife. At another point, however, Wennik claimed he told DiMatteo during the interview that he had already discussed the issue with his wife and was willing to relocate. In his post-interview notes, DiMatteo indicated that the issue of relocation was left "undetermined."

During this interview, DiMatteo expressed surprise that Wennik was applying for the position, stating "When I get over 55, there's no way you'll find me in this business." Although Wennik's prior leave of absence was not mentioned in the interview, DiMatteo was aware that Wennik had taken such a leave. In addition, others in the company headquarters knew of Wennik's medical condition.

At the conclusion of the interview, DiMatteo told Wennik that he would continue interviewing candidates for the position and that Wennik should contact him if he was willing to relocate. Wennik did not follow up further with either DiMatteo or any other company executives about the position. The position was ultimately offered to and accepted by Kevin Mangini, a twenty-seven year-old former PolyGram employee, whom DiMatteo had interviewed in November 1996.

II. DISCUSSION

A. Handicap Discrimination Claim

PolyGram argues that the trial court erred in denying its motion for judgment as a matter of law on the handicap claim because: (1) the decision-maker had no knowledge of the handicap and therefore could not have discriminated against Wennik based upon it; (2) the jury's verdict for PolyGram on the age discrimination claim precludes a finding that PolyGram's articulated reasons were pretext for handicap discrimination; and (3) the evidence was insufficient for a finding that Wennik's handicap was the real reason he was not selected for the field marketing manager position.

This court reviews a district court's denial of a motion for judgment as a matter of law de novo, "viewing the evidence in the light most favorable to [the nonmoving party] and drawing all reasonable inferences in its favor. Our inquiry is whether the evidence, when viewed from this perspective, would permit a reasonable jury to find in favor of [the nonmoving party] on any permissible claim or theory." Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 67 (1st Cir.2001) (alteration in original) (citation and internal quotation marks omitted). We conclude that a reasonable jury could have found in favor of Wennik. Therefore, the district court did not err in denying PolyGram's motion.

We recite the legal framework for a handicap discrimination claim under Massachusetts law where, as here, direct evidence of discrimination is absent. The employee must first establish a prima facie case of discrimination by showing he is a member of a protected class, performed his job at an acceptable level, was terminated, and the employer nonetheless sought to fill his job by hiring another individual with similar qualifications. Abramian v. President, Fellows of Harvard Coll., 432 Mass. 107, 116, 731 N.E.2d 1075 (2000). This showing creates a presumption of discrimination, which the employer can rebut by articulating a lawful reason or reasons for its decision and producing credible evidence to show the reasons advanced were the real reasons. Id. at 116-17, 731 N.E.2d 1075. The employer need not prove that the reasons were nondiscriminatory but "retains an incentive to persuade the trier of fact that the employment decision was lawful." Id. at 117, 731 N.E.2d 1075 (internal citation and quotation marks omitted). If the employer fails to meet this burden of production, the plaintiff is entitled to judgment. Id. If the employer meets its burden, the burden shifts back to the employee to show that the basis for the employer's decision was unlawful discrimination. Id.

PolyGram's first argument is that Ron DiMatteo, the individual responsible for hiring the field marketing manager, had no knowledge of Wennik's handicap at the time he made the decision not to hire him; therefore, Wennik could not have been a victim of discrimination "because of his handicap," Mass. Gen. Laws ch. 151B, § 4(16). After reviewing the record, we conclude that the evidence was sufficient for a reasonable jury to determine that DiMatteo was not the sole decision-maker and/or that he knew of Wennik's handicap.

PolyGram argues that DiMatteo was solely responsible for hiring someone to fill Wennik's position, and that other witnesses corroborated this assertion. Although John Madison, Wennik's supervisor and PolyGram's executive vice president, was required to sign off on...