55 Mass. App. Ct. 700 | Mass. App. Ct. | 2002
After a Superior Court jury returned a verdict for the plaintiff, James Waite, in his age discrimination action brought under G. L. c. 151B, § 4, against the defendant, Goal Systems International, Inc. (Goal), the judge allowed
Standard of review. “To test whether allowance of a motion for judgment notwithstanding the verdict was correct (Mass.R. Civ.R 50(b), [as amended, 428 Mass. 1402 (1998),]) we inquire whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury could reasonably return a verdict in favor of the plaintiff, i.e., whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the plaintiff’s case.” Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89 (1987). The review of a judge’s ruling on a motion for judgment notwithstanding the verdict involves the same standard as a review of a motion for a directed verdict. See Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 785-786 (1982). Accordingly, we construe the evidence in the light most favorable to the plaintiff, Waite. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 613 (1989).
Factual background. After having been employed in the computer industry for almost thirty years, Waite, in late March of 1989, was hired by Essential Software, Inc. (Essential), to open and operate a sales office based in Boston for a new territory comprising the northeastern part of the United States and the eastern part of the Canada. Essential’s principal sales product was a computer operating system generally appropriate for large businesses. James Garret was directly responsible for hiring Waite and supervising him until Essential was acquired by Goal in early February of 1990. Garret believed that Waite had done a satisfactory job throughout the time that he had supervised him, and, aware that Waite “had to start from scratch,” was “delighted” with the amount of his sales during
The trial framework. This action was submitted to the jury under the three-stage order of proof recognized in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-136, 138-139 (1976), and recently limited to questions of law and summary judgment analysis by Lipchitz v. Raytheon Co., 434 Mass. 493, 507-508 (2001)
In a memorandum addressing Goal’s motion for judgment notwithstanding the verdict, or alternatively for a new trial, the judge concluded that Waite did not meet his burden of proof with respect to pretext (the third stage) and allowed the motion for judgment notwithstanding the verdict. In so doing, the judge indicated there was no need to examine the issues related to the prima facie stage of the case. She also determined that the verdict was against the weight of the evidence and that the case “should be presented at a new trial, if the judgment notwithstanding the verdict is set aside.”
Discussion. The issues presented by Waite on appeal are whether he sustained his burdens of proof on pretext and replacement and whether a new trial is warranted.
a. Pretext. In Wheelock College, supra at 139, the court indicated that a plaintiff could meet his burden of proving unlawful discrimination by establishing that “the [employer’s] facially proper reasons given for its action against him were not the real reasons for that action.” In Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000), the court stated that proof of unlawful discrimination “may be ac
To the extent that we can determine from the abbreviated record before us,
Contrasting with Goal’s articulated reasons was the testimony of Garret, who had been retained by Murphy for his “good advice,” to the effect that he was satisfied with Waite’s performance with Essential, that he was delighted with Waite’s sales figures, that Waite’s experience in selling was important to him, and that what he saw of Waite’s paperwork “was okay.” Garret also testified that the cancellation clause used by Waite in his agreements was quite common, and that he had not authorized Waite to use an agreement that had different terms than were used by the other salespeople. He further stated that when Murphy had consulted with him before the acquisition, Murphy was not particularly interested in finding out about any backgrounds of any salesperson. Also, Waite in his testimony denied ever meeting with Murphy or having any direct conversation with him before he was terminated. This evidence, viewed in a light most favorable to the plaintiff, was sufficient to support a finding that at least one of the reasons advanced by Goal was false. Where the evidence was sufficient to establish a prima facie case of discrimination, that falsity alone would permit a jury to infer that Goal was covering up a discriminatory animus which was the determinative cause of Waite’s discharge. See Lipchitz v. Raytheon Co., 434 Mass. at 501, 504, 506-507 (“From such proof [that at least one reason was false] the fact finder could infer that [the employer’s] discriminatory animus was the determinative cause of the adverse employment decision”); Abramian v. President & Fellows of Harvard College, 432 Mass. at 118.
b. Replacement by person with similar qualifications. Although Murphy testified that, as of the date of Goal’s acquisition of Essential, Goal had only three open sales positions in the eastern region that were filled by Essential’s three highest performers who, along with Goal’s sales people, assumed
Accordingly, we conclude that it was error to allow the motion for judgment notwithstanding the verdict and to enter the ensuing judgment for the defendant.
c. Motion for a new trial. The judge’s alternative and conditional order for a new trial was based upon her conclusion that “[tjhere is no affirmative evidence ... to support the contention that Waite’s discharge was the result of age discrimination.” She opined that the verdict therefore was against the weight of the evidence. The standard for determining whether a new trial should be ordered is different from that applicable to a motion for a directed verdict or to a judgment notwithstanding the verdict. See Smith & Zobel, Rules Practice § 59.3 (1977 & Supp. 2002). When ruling on a motion for a new trial a judge is obliged to determine credibility and weigh conflicting evidence, ibid., and must consider the probative force of all the evidence. See Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59-61 (1948). Our duty is to determine whether the judge abused her discretion in granting a
Order allowing defendant’s mo-for judgment notwithstanding the verdict vacated.
Conditional order for a new trial affirmed.
The jury awarded the plaintiff $75,000 in lost earnings and $26,701 in punitive damages, plus attorney’s fees. The judge’s memorandum of decision indicates that the parties had stipulated to a reduction of $15,000 in any compensatory damages awarded based upon mitigation by Waite of his damages.
The conditional ruling was entered in accordance with Mass.R.Civ.P. 50(c)(1), 365 Mass. 814 (1974).
The record does not reveal the ages of two of the retained Essential salespersons.
See Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 440-443 (1995), for an articulation of the now familiar approach to actions under G. L. c. 151B, § 4, where there is no direct evidence of discrimination. In summary and in context, that formulation, in the first stage, imposes upon the employee a burden of establishing a prima facie case of discrimination by showing that (1) he is within a protected class of persons (over forty years of age) (G. L. c. 151B, §§ 1[8] and 4[1B]); (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer attempted to fill his position by hiring another individual with qualifications similar to his. In the second stage, the employer can rebut the presumption established in the first stage by articulating a legitimate, nondiscriminatoiy reason or reasons for
The parties did not provide us with a full transcript of the three-day trial. Instead, their respective appendices contain only portions of the testimony, presented in disordered and poorly labeled fashion and with occasional interspersion of one witness’s testimony or portions of the judge’s instructions within the partial transcript of another witness’s testimony.