57 Mass. App. Ct. 739 | Mass. App. Ct. | 2003
Paul H. Gates, a physician who had been employed by the Norfolk County sheriff’s office, brought this action against the sheriff’s office and its sheriff, John H. Flood, alleging that he was forced to retire due to his age, in violation of
Facts. There was evidence that warranted the jury in finding the following. Dr. Gates was employed as a physician by the Norfolk County sheriff’s office beginning in 1953, and became its full-time medical director in 1993. In the spring of 1997, Sheriff Flood directed that the sheriff department’s superintendent of human resources, Daniel Shea, and its superintendent of administration, Josephine Shea, review all classifications of employees sixty-five years of age and over in order to ascertain which employees could be classified as “Group 4”
The statement in the sheriff’s letter, that “the Retirement Board has classified you as a Group 4 employee,” was not accurate, in that the board had not yet been asked to classify Dr. Gates in any group. Although G. L. c. 32, § 3(g), provides that, upon receipt of information from the sheriff that includes such information as an employee’s duties and rate of compensation, “the [retirement board] shall classify each member in one of the [four] groups,” nearly a month passed after the letter was sent before such classification was sought.
At a June 11, 1997, meeting of the Norfolk County retirement board, Josephine Shea — who, in addition to holding the position of superintendent of administration, was at the time also a member of the retirement board — made a motion to
In a letter from the chairman of the Norfolk County retirement commission dated July 1, 1997, a copy of which was sent to the sheriff, Dr. Gates was advised that as a Group 2 member he was not required to retire at age sixty-five. On July 2, 1997, Dr. Gates wrote to Sheriff Flood asking him about his “reaction to this new information.” He wrote again on July 22, 1997, noting that his retirement was not mandatory and the sheriff’s notice to him was incorrect, and asking that he be reinstated immediately. Receiving no response to either letter, or to a subsequent letter sent by his attorney to Sheriff Flood that also demanded immediate reinstatement, Dr. Gates filed suit in Superior Court.
Discussion. 1. Denial of peremptory challenges. After a jury of twelve had been selected, Dr. Gates sought to exercise two remaining peremptory challenges. See G. L. c. 234, § 29 (in civil action “each party shall be entitled to four peremptory challenges”). The defendant’s counsel objected, arguing that the challenges impermissibly sought removal of jurors on the basis of age. The judge disallowed the challenges on the ground that age is a suspect classification under Commonwealth v. Soares, 377 Mass. 461, 488-489, cert. denied, 444 U.S. 881 (1979). This ruling was erroneous.
We next discuss the claim that the jury were improperly instructed, because this issue may arise at any retrial. We do not address the remaining claims, as the issues presented are not likely to recur.
2. Erroneous jury instructions. Dr. Gates contends that the judge erred when she instructed that the jury focus on the employer’s motive for its employment decision,
It is no defense to a discharge based solely on age that the employer mistakenly believed that age was a bona fide occupational qualification (BFOQ) for the employee’s job.
Conclusion. We vacate the judgment and remand for a new trial consistent with this opinion.
So ordered.
Gates claims entitlement to a new trial on the grounds that the judge (1) improperly denied him the right to exercise two peremptory challenges; (2) improperly instructed the jury as to pretext and mixed motive where the evidence did not warrant the giving of either instruction; and (3) improperly answered a jury question. He further argues that his motion for a new trial should have been allowed because the verdict was contrary to law and was against the weight of the evidence.
General Laws c. 32, § 3(2)(g), provides for classification of public employees by the retirement board, in one of four numbered “groups” for retirement purposes. Group 4 includes “the sheriff, superintendent, assistant superintendent, assistant deputy superintendent and correction officers of county correctional facilities,” among others. “A Group 4 employee must retire on the last day of the month in which he or she attains age sixty-five.” Fine v. Contributory Retirement Appeal Bd., 401 Mass. 639, 640 (1988).
The sheriff and the county’s legal counsel testified that the impetus for conducting the assessment of employees was that prior thereto an employee over the age of sixty-five had been injured on the job, and that because he was classified as a Group 4 employee who was therefore subject to superannuation retirement at age sixty-five, the employee was not entitled to receive disability benefits. The sheriff testified that with respect to those he identified
It is undisputed that Dr. Gates’ job performance consistently had been, and was at the time the letter was sent, satisfactory.
Dr. Gates filed a voluntary application for superannuation retirement on May 20, 1997; in connection with this application, he accepted retirement effective July 23, 1997.
General Laws c. 32, § 90H, in effect at all times relevant to this matter, has since been repealed. See St. 2000, c. 123, § 28.
Action in the nature of certiorari under G. L. c. 249, § 4, would be the appropriate vehicle for redress in these circumstances. Superintendent of Pub. Works of Attleboro v. Attleboro Contributory Retirement Bd., 38 Mass. App. Ct. 130, 131 n.5 (1995).
We assume, because the issue has not been raised and the record does not suggest otherwise, that Dr. Gates fulfilled any applicable prerequisites to instituting suit. See G. L. c. 15 IB, § 9.
The sheriff’s demand that Dr. Gates retire or he would be involuntarily retired, and Dr. Gates’s application for voluntary retirement in response to this demand, was an involuntary change in Dr. Gates’ employment status initiated by his employer — in effect, a discharge. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 33-34 (1995) (constructive discharge occurs when employer’s conduct effectively forces employee to resign). Cf. Flesner v. Technical Com
On the record before us, we do not address the extent of the sheriff’s affirmative obligations, if any, pertaining to an employee’s rights upon discharge, or pertaining to such rights upon involuntary retirement. See, e.g., G. L. c. 32, § 16.
The judge’s instructions adhered generally to the line of cases beginning with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), that outline the allocation of shifting burdens when the plaintiff’s case is circumstantial, not direct, and therefore begins with the burden on the plaintiff to set forth a prima facie case. It was not correct and could only have confused the jury to instruct that they might “consider the reasonableness or lack of reasonableness of the Defendant’s stated business judgment, along with all of the other evidence, in determining whether the Defendant discriminated against the Plaintiff;” that the burden was on the plaintiff to establish by a preponderance of the evidence “that the adverse employment decision was motivated in part by unlawful bias, and in part by a legitimate reason,” before the burden
References in these cases to “motivation” and “animus” do not mean that an employer must be found to have a negative motive or feelings of animosity, but only that age was the moving or animating force behind the decision, regardless of intent.
The evidence that the sheriff believed that he was permitted by statute to require Dr. Gates’s retirement was relevant to the question whether Dr. Gates was entitled to double or treble damages. Such damages are available if a jury were to conclude that the sheriff terminated or failed to reinstate Dr. Gates “with knowledge, or reason to know, that such act or practice violated the provisions of [] section four [of c. 151B].” G. L. c. 151B, § 9. See Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 420 (1998). See also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 129-130 (1985) (where record was clear that employer acted reasonably and in good faith in attempting to determine whether its plan would violate Federal Age Discrimination in Employment Act, employer’s discriminatory acts were not wilful or in reckless disregard of requirements of Act, and respondents were not entitled to liquidated or double damages).