419 Mass. 437 | Mass. | 1995
At issue is whether the Superior Court judge applied the appropriate standard in allowing the defendants’ motions for summary judgment in a case alleging age discrimination under G. L. c. 151B (1992 ed.), and G. L. c. 93, § 103 (1992 ed.).
1. Facts. Reviewing the materials submitted for the summary judgment motion in the light most favorable to the nonmoving party (Blare), Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 396 (1994); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991), we recite the following facts. The plaintiff was employed by Husky as a machine operator from 1984 until April, 1992. At the time he was terminated, plaintiff was fifty-seven years old.
From 1984 until 1992, the plaintiffs file was free of disciplinary notices. The plaintiff does not dispute that his supervisor submitted formal disciplinary notices against him during the four months preceding his termination (January 1, 1992, until April, 1992). Rather, the plaintiff presented evidence that workers not within the protected age category
The defendants filed motions for summary judgment on the ground that in admitting the notices the plaintiff failed to present evidence tending to show that Husky’s explanation that its decision based on the notices was a pretext. The judge ordered summary judgment be entered for the employer on the ground that the record was devoid of evidence “to dispute the basic accuracy of the four documented disciplinary incidents of quality errors and low productivity in the three months between January 20 and the April 27 termination.” We allowed the plaintiff’s application for direct appellate review. We now reverse and remand for further proceedings.
2. Summary judgment standard. Summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment.
However, summary judgment is not always inappropriate in discrimination cases. Where a defendant’s motion for summary judgment demonstrates that the plaintiffs evidence of intent, motive, or state of mind is insufficient to support a judgment in plaintiffs favor, we have upheld summary judgment in favor of defendants. See Brunner, supra at 705 (summary judgment for defendant where plaintiff failed to offer evidence sufficient to carry burden of persuasion on employer’s discriminatory motive); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-438 (1989) (summary judgment for defendant where plaintiff offered no admissible evidence that would carry burden of persuasion on intent at trial); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770 (1986) (summary judgment for defendant where plaintiff did not offer evidence sufficient to carry burden of persuasion on employer’s discriminatory motive at trial).
3. Three-stage order of proof in discrimination cases. General Laws c. 15IB, § 4 (1992 ed.), provides in relevant part: “It shall be an unlawful practice: ... 1B. For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Section 1 (8) of G. L. c. 151B (1992 ed.) provides that “[t]he term ‘age’ unless a different meaning clearly appears from the context, includes any duration of time since an individual’s birth of greater than forty years.”
In applying Massachusetts’ antidiscrimination statute, it has been our practice to follow the three-stage order of proof set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII. See Wheelock College v. Massachusetts Comm’n Against Discrimination,
Because the trial judge ruled that the plaintiff failed to “dispute the basic accuracy” of the disciplinary notices, the issue in this case is what evidence the plaintiff is required to produce at the third stage in the order of proof in discrimination cases to clear the summary judgment hurdle. It is useful to review each stage in the order of proof before reaching this issue.
In the first stage, the plaintiff has the burden to show by a preponderance of the evidence a prima facie case of discrimination. Since our decision in Wheelock College, supra, a plaintiff carries the burden of a prima facie case of discrimination with evidence that: (1) he is a member of a class protected by G. L. c. 15IB; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer sought to fill the plaintiff’s position by hiring another individual with qualifications similar to the plaintiffs. See also White, supra at 557. We noted in Wheelock College, supra at 135 n.5, that the elements of the plaintiffs initial burden may vary depending on the specific facts of a case. The prima facie case “eliminates the most common nondiscriminatory reasons for the plaintiffs rejection,” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981), thereby creating a presumption of discrimination.
In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its hiring decision. Wheelock College, supra at 136, quoting McDonnell Doug
Once the defendant articulates a nondiscriminatory reason for the challenged hiring action, the proceedings have reached the third stage in the order of proof. What the plaintiff must prove in the third stage of the order of proof has been controversial in Federal courts.
We think the better policy is to remain with our own precedent that, once a plaintiff has established a prima facie case and further shows either that the employer’s articulated reasons are a pretext or by direct evidence that the actual motivation was discrimination, the plaintiff is entitled to re
The plaintiff bears the burden of persuasion on the ultimate issue of discrimination. Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 566 (1981). Although the three-stage order of proof “lightens the employee’s burden” by requiring the employer to provide information at the second stage which “narrows the field of possible lawful reasons” for its decision, it does not go so far as to shift the burden of persuasion to the defendants. Id. “Thus, if the evidence is in balance, the employer must prevail.” Id. Because “smoking gun” evidence is rare, Wheelock College, supra at 137, the plaintiff may, and more often than not must, carry his burden of persuasion with circumstantial evidence that convinces the fact finder that the proffered explanation is not credible.
At the third stage in our order of proof, if the fact finder concludes that the plaintiff has proved that the employer’s reasons are a pretext, then the plaintiff prevails. If the fact finder concludes that the plaintiff did not prove pretext then the defendant prevails. Direct proof of discrimination is not required.
4. Sufficiency of the evidence. The record is sufficient to support a prima facie case. Donald Blare was born on October 26, 1934, and was fifty-seven years old at the time he was terminated from Husky. The periodic reviews in the plaintiff’s file for the seven years preceding his first written warning indicate that he consistently and conscientiously performed his job. Finally, after the plaintiff was terminated Husky delegated his duties to various other employees who were not within the protected age category. In addition, the employer met its burden of production by articulating that its legitimate, nondiscriminatory reason for terminating Blare’s employment was poor performance as documented by the written notices for quality and attendance infractions against Blare.
We think that, in addition to the plaintiffs prima facie evidence, the three remarks made by Blare’s supervisor regarding the ability of Blare to work considering his age,
So ordered.
The plaintiff filed a complaint with the Massachusetts Commission Against Discrimination alleging age discrimination in his termination by the defendants. The plaintiff withdrew the complaint and thereafter he filed this complaint in the Superior Court. General Laws c. 151B, § 9 (1992 ed.), provides, in relevant part: “Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may, at the expiration of ninety days after the filing of a complaint with the commission, . . . but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior . . . court for the county in which the alleged unlawful practice occurred .... The petitioner shall notify the commission of the filing of the action, and any complaint before the commission shall then be dismissed without prejudice, and the petitioner shall be barred from subsequently bringing a complaint on the same matter before the commission.”
This is a disparate treatment case not a disparate impact case. See, e.g., Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384-385 (1993); Wheelock College, supra.
Compare, e.g., Coons, Proving Disparate Treatment After St. Mary’s Honor Center v. Hicks: Is Anything Left of McDonnell Douglas, J. Corp. Law 381 (Winter 1994) (arguing against rule set forth in Hicks that plaintiff is not entitled to judgment as a matter of law on the basis of a prima facie case and a showing of pretext only), and Joseph, Employment Discrimination: Shouldering the Burden of Proof after St. Mary’s Honor Center v. Hicks, 29 Wake Forest L. Rev. 963 (1994) (arguing that holding of Hicks was based on twisted reading of past precedent and undercuts the intent of Federal civil rights legislation), with Odell, Between Pretext Only and Pretext Plus: Understanding St. Mary’s Honor Center v. Hicks and its Application to Summary Judgment, 69 Notre Dame L. Rev. 1251 (1994) (arguing that the Hicks decision adopts a position between pretext only and pretext plus which, when properly applied, does not deprive plaintiffs of opportunity to try its discrimination claims to a jury), and Whitis, St. Mary’s Honor Center v. Hicks: The Title VII Shifting Burden Stays Put, 25 Loy. U. Chi. L.J. 269 (1994) (arguing that holding that plaintiffs must prove pretext and that the actual motivation for the adverse hiring decision was discrimination prohibited by Title VII did not alter precedent).
See St. Mary’s Honor Center v. Hicks, supra at 512, citing Equal Employment Opportunity Comm'n v. Flasher Co., 986 F.2d 1312, 1321 (10th Cir. 1992) (finding of pretext does not mandate finding of illegal discrimination); Galbraith v. Northern Telecom, Inc., 944 F.2d 275, 282-283 (6th Cir. 1991), cert. denied, 503 U.S. 945 (1992); Samuels v. Raytheon Corp., 934 F.2d 388, 392 (1st Cir. 1991); Holder v. Raleigh, 867 F.2d 823, 827-828 (4th Cir. 1989); Benzies v. Illinois Dep’t of Mental Health and Developmental Disabilities, 810 F.2d 146, 148 (7th Cir.), cert. denied, 483 U.S. 1006 (1987); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir. 1983).
See Hicks, supra at 512, citing Tye v. Board of Educ. of Polaris Joint Vocational School Dist., 811 F.2d 315, 320 (6th Cir.), cert. denied, 484 U.S. 924 (1987) (finding of discrimination mandated by finding of pretext); King v. Palmer, 778 F.2d 878, 881 (D.C. Cir. 1985); Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157 (2d Cir.), cert. denied, 502 U.S. 880 (1991); Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395-1396 (3rd Cir.), cert. denied, 469 U.S. 1087 (1984); Caban-Wheeler v. Elsea, 904 F.2d 1549, 1554 (11th Cir. 1990); Thornbrough v. Columbus & Greenville R.R., 760 F.2d 633, 639-640 (5th Cir. 1985).
In response to criticism in the dissenting opinion (Sauter, J., dissenting), the majority in Hicks states that it does not contradict itself in stating first, that the plaintiff is required to show pretext and that the actual reason for the hiring decision was discrimination, and second, that the fact finder cannot find for the plaintiff solely because they disbelieve the employer’s proffered reason. “Even though (as we say here) rejection of the defendant’s proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination” (emphasis in original). Hicks, supra at 511 n.4.
The plaintiff in this case is typical of plaintiffs under G. L. c. 15IB in that he has no direct evidence of discrimination. However, we agree with the dissent’s position in Hicks, supra at 534-535 (Sauter, J., dissenting), that, under Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981), the plaintiff’s ultimate burden of persuasion may be satisfied either by direct or circumstantial evidence of discrimination. If the plaintiff has direct evidence and the fact finder credits the direct evidence that discrimination was the motivating factor then the plaintiff prevails. If the plaintiff lacks direct evidence but the fact finder finds by a preponderance of the evidence that the employer’s nondiscriminatory reason is a pretext, the plaintiff also prevails.
“ [Isolated or ambiguous remarks, tending to suggest animus based on age, are insufficient, standing alone, to prove an employer’s discriminatory intent.” Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993). The remarks here do not stand alone.