Search of Mythological Creatures:
the Yeti, the Loch
Ness Monster, the Sasquatch
and Direct Evidence of
The Tale of Two Dons
Harvey A. Schwartz
Rodgers, Powers &
18 Tremont Street
Boston MA 02108
Now that the furor appears to be receding concerning pretext-only,
pretext-plus, and sort-of-pretext – as a result of such decisions as Abramian
v. President & Fellows of Harvard College, 432 Mass. 107 (2000) and
Lipchitz v. Raytheon Company, 434 Mass. 493 (2001), with help from Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) – it is time to take
a closer look at that old standby: not-a-bit-of-pretext or
we-just-don’t-like-folks-like-you evidence. I thought it would be interesting to
survey reported Massachusetts decisions and see how judges are dealing with that
chimerical creature called "direct evidence of discrimination."
"Direct evidence" is a fairly hard to handle fellow and judges often seem to
confuse him with his evil twin, "stray comments." In fact, the two appear to be
virtually indistinguishable, if one is to believe what judges write. Here is an
example from my own experience.
Seven or eight years ago I had two age discrimination cases working their way
through the justice system. Both involved men fired from their jobs at age 57.
Coincidently, both men were named Donald. Both men had pretty good performance
records for many years with their employers, a few spots on their records here
and there, but nothing deserving of getting the boot. As the years went by, both
men were treated increasingly poorly by their employers. One Don was pretty much
ostracized at work as his younger manager and his equally-young buddies hung out
together, ignoring the older guy. The other Don received the back of the hand
from his employer more overtly. He was given the only office without air
conditioning, some of the equipment assigned for his use was old and unworkable,
while younger men got new equipment. In fact, he had to do his own janitorial
work, unlike the younger men in his position.
And then there were the comments made to the men. Donald No. 1's boss teased
him about "getting too old to work two machines at the same time." The boss
mentioned, in a casual conversation about plans for a fellow employee’s
retirement party, that few people stayed on at the company until retirement.
Donald No. 2 received that classic chestnut of age discrimination cases, the
question "is your bag [briefcase, wrench, baseball bat] getting too heavy for
you?" He was also told that he sure "had been around for a long time."
I used to get one Don’s facts mixed up with the other Don’s. The cases seemed
pretty much indistinguishable. Both seemed to be pretty good discrimination
claims, not the best but not the weakest. What a surprise that both Dons had
summary judgments entered against them. Not to worry, I said. We’ll get them
flipped on appeal. I was half right.
On appeal, Don No. 2 was told by the Appeals Court that what was said to him
about his bag and his longevity at the company were simply stray comments,
although the court did at least acknowledge that "[i]t is possible to spot an
allusion to age in those remarks. It is equally possible to take the comment as
an allusion to a degree of familiarity with the job that had bred contempt for
accuracy and detail." (Note to Appeals Court: when an inference is "equally
possible" that means on summary judgment that the plaintiff prevails.) Summary
judgment was confirmed against Don Tardanico in Tardanico v. Aetna Life & Cas.
Co., 41 Mass. App. Ct. 443 (1996).
Don No. 1 did better in the Supreme Judicial Court. Rather than rejecting the
statements made to him as poor, lost strays, they turned out to be powerful
evidence of pretext. Don Blare was a happy man as a result of Blare v. Husky
Injection Molding Sys. Boston, 419 Mass. 437 (1995).
I sure would not have predicted that outcome. In fact, I thought Don
Tardanico had the stronger case. But that is the basic problem with those alter
egos of direct evidence and stray remarks. A statement that is one person’s
direct evidence of discrimination is discarded as another person’s stray remark.
Lets take a look at how Massachusetts judges have treated this odd pair.
The legal standard
The Mother of Direct Evidence of Discrimination is Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989). There, the Supreme Court said (without the
majority actually using the words "direct evidence," although the concurring and
dissenting opinions uttered them) that there is, "of course," a second way a
plaintiff can prevail in a discrimination claim other than the McDonnell
Douglas/Burdine burden-shifting method. A plaintiff who proves that her
employer used an "illegitimate criterion" in making an employment decision meets
her burden of proof by that alone and there is no need to get involved in any
burden-shifting, three-stage analysis. The direct evidence the Supreme Court
alluded to there was truly DIRECT evidence, deserving of being referred to in
all-caps. The Court’s example of such evidence was,
In saying that gender played a motivating part in an employment
decision, we mean that, if we asked the employer at the moment of the
decision what its reasons were and if we received a truthful response, one
of those reasons would be that the applicant or employee was a woman.
490 U.S. at 249.
Nonetheless, in the burden of proof ping pong match between
employee-advocates and employer-defenders, (ping) the Price Waterhouse
Court opened an escape hatch for employers, who could avoid liability by
showing that even though the bad reason was a motivating factor,
they would have made the same decision even if they had not considered the bad
reason. Congress bounced the burden of proof ball back to the employees’ side of
the table with (pong) the Civil Rights Act of 1991, Pub. L. No. 102-166, which
amended Title VII, 42 U.S.C. § 2000e-5(g)(2)(b) to provide that the employee
wins on a showing that a protected characteristic is a "motivating factor" in an
employment decision, even if he would have been fired anyway. However, (ping)
even though the employee wins by showing that the illegal reason was one of the
factors considered in the employment decision, (pong) if the employer proves it
would have made the same decision anyway, the employee receives declaratory and
injunctive relief (not including reinstatement) and attorneys fees, but not
money damages. (Ping).
The Supreme Judicial Court recognizes this distinction between discrimination
cases proven by direct evidence and those proven by indirect evidence, the
former using the "mixed motives" standard, the latter using the three-stage
burden-shifting method of proof. The key Massachusetts case distinguishing
between the two kinds of evidence – direct evidence and inferential evidence –
is Wynn & Wynn, P.C. v. Mass. Comm'n Against Discrimination, 431 Mass.
655 (2000). There, the SJC (quoting from Johansen v. NCR Comten, Inc., 30
Mass. App. Ct. 294, 301 (1991) which in turn quoted from Price Waterhouse v.
Hopkins, supra at 252) said,
If a plaintiff in an unlawful discrimination case shows that an
impermissible motive played a part in an employment decision, an employer
may not prevail by showing, as in McDonnell-Burdine, a legitimate
reason for its decision; the employer instead must show that its
legitimate reason, standing alone, would have induced it to make the same
431 Mass. at 666. The SJC, apparently using the same thesaurus as did the
Supreme Court in Price Waterhouse, coined the parenthetical legal
standard of "direct (strong) evidence." Id. The term refers, the Court
said, to "evidence that if believed, results in an inescapable, or at least
highly probable, inference that a forbidden bias was present in the workplace."
431 Mass. at 667.
So, now that "direct (strong) evidence" is the plaintiff-employee’s
ace-in-the-hole sure-thing winner, what is this creature, and how do courts
distinguish it from that nemesis "stray remarks?"
Examples of direct evidence
The Wynne court referred to direct evidence cases as "a rare class of
cases." They weren’t kidding. Few Massachusetts judges have had the gumption to
brand a plaintiff’s proof as constituting "direct (strong) evidence" of
discrimination. Here are a few examples.
Wynn & Wynn, P.C. v. Mass. Comm'n Against Discrimination, 431 Mass.
655 – The examination has to begin with Wynn & Wynn, where the MCAD
hearing officer found the evidence to be "direct evidence of discrimination"
and the SJC accepted that. The case involved a female law clerk, who was
pregnant when hired as a clerk, who was not hired as an associate after
graduation from law school. The direct evidence there consisted of proof that
the managing partner "ultimately responsible" for the clerk’s hiring had said
that he would not have hired her as a law clerk had he known that she was
pregnant, and that her priorities were "elsewhere," presumably with raising a
family instead of the practice of law. The managing partner then said he was
going to tell the clerk that there were no available openings even though that
was not true.
Brownlie v. Kanzaki Specialty Papers, 44 Mass. App. Ct. 408, 415
(1998) – In this age discrimination case against a paper company, owned by a
Japanese firm, the Appeals Court said, admittedly in a footnote, that the
plaintiff had provided "direct evidence of discrimination." 44 Mass. Ap.. Ct.
at 415 n6. The evidence consisted of the following. The Japanese company had a
mandatary retirement policy, at age 60, in Japan, although that policy was not
officially in effect in the United States. Nonetheless, on his sixtieth
birthday, the plaintiff, who was vice president for sales, was relieved of all
sales responsibility and demoted. When the plaintiff complained, his manager
said, "You've been doing a good job, but I want a younger man." Shortly after
that he was fired.
Northeast Metropolitan Regional Vocational School District School
Committee v. Massachusetts Commission Against Discrimination, 31 Mass.
App. Ct. 84 (1988) – A woman brought a gender discrimination claim after she
was not hired as a school superintendent. The chairman of the search
committee, had told her, "we don't want a woman in that position." Another
committee member said to her, "I don't know why you even applied. What we need
is a big, strong man with a big, strong voice who can come to the committee
and fight." Despite that, the trial judge found the plaintiff failed to meet
her burden of proof because the statements were made by just two members of
the 12-member search committee. The Appeals Court rejected that argument,
saying, "While it is true that the committee was comprised of twelve members
and there was direct evidence of sexual bias exhibited by only two of its
members, this is not fatal to the complainant's case."
Butner v. Dep't of State Police, 2001 Mass. Super. LEXIS 320 – Judge
Fabricant denied a summary judgment motion by the State Police in a pregnancy
discrimination claim by female troopers. She found the following to be direct
evidence of gender discrimination. "Contrary to the Department's assertions,
the evidence offered, considered in the light most favorable to the
plaintiffs, indicates that the Colonel never established any standard of
fitness to perform ‘all duties’ of a member of the Department, never adopted
any list of tasks essential for all troopers to be able to perform, and never
applied any such standard to the members of the Department generally. Rather,
from the evidence offered, a jury could find that the Department instructed
Health Resources to evaluate pregnant troopers based on a standard never
applied to any other troopers. On that basis, a jury could conclude that the
ability to perform all items on the task list was not necessary to meet the
requirement of c. 22C, § 10, and that the Department's assertion to the
contrary is false." Further, the court said, there was direct evidence of
discriminatory animus in the form of statements (not reported in the decision)
of various Department personnel, up to and including the Colonel.
Haley v. Dunkin Donuts, 2001 Mass. Super. LEXIS 17 – In non-jury trial
of an age discrimination claim, Judge Toomey found that "there was offered
compelling direct evidence that the employers discriminated against Haley
because of his age." The evidence included the plaintiff’s manager having
complained to him about hiring an older driver, immediately after which the
manager created a new form entitled "Employee Profile, Driver," one of the
categories of which focused on the applicant's age and assigned it a "rating."
The favorability of the rating was in inverse proportion to the age of the
applicant. That is, the younger one was, the more points one was awarded
toward employment. The manager then said that age was a consideration in
hiring drivers because the employer desired hires who were strong and would
remain with the company for upwards of thirty years. Finally, the manager told
the plaintiff he would likely be discharged because the employer needed a
"healthier, stronger and younger man to take the building into the
twenty-first century." The manager noted that within ten years the plaintiff
would be sixty-five years of age and that it was time he sought other
Soriano v. Lawrence Police Dep't, 2000 Mass. Super. LEXIS 640 – Judge
Gants, denying the police department’s summary judgment motion in a national
origin discrimination claim, labeled a statement by a city councillor involved
in a promotion decision that "I don't want a Spanish captain" as "direct
Pub Ventures v. Massachusetts Comm'n Against Discr., 1994 Mass. Super.
LEXIS 294 – Judge Gershengorn found the plaintiff offered "direct evidence of
discrimination" in a gender discrimination claim against Applebys Restaurants
by the restaurant’s only female bartender. The restaurant manager had told
her, simply, that "broads don't belong behind the bar." When she complained,
he told her that she was "defensive about being female.
In contrast to these examples of what judges have considered to be "direct
evidence," examples of what have been dismissed as "stray remarks" appear, at
first blush virtually indistinguishable. Here are some examples of such "stray
remarks" and comments that courts said could perhaps be viewed as evidence of
discriminatory animus, but were not "strong" enough to be direct evidence.
Johansen v. NCR Comten, 30 Mass. App. Ct. at 299 – The SJC said,
giving an example, that an expression of conviction by an executive who has
personnel responsibilities that "new young blood" is needed, followed by the
discharge of persons over forty and their replacement by persons under thirty,
does not constitute direct evidence but, at best "makes for powerful evidence
of age discrimination, [with] some inferential
reasoning required to link it to the discharge of a particular person."
Duprey v. Raytheon Co., 1996 Mass. Super. LEXIS 662 – Summary judgment
for the employer was allowed in this age discrimination claim, even though
there was evidence that the supervisor had said the company was "hiring
younger people" and the plaintiff's supervisor referred to various older
employees with the phrase, "When is he going to retire?"
Fajkowski v. Mitre Corp., 1993 Mass. Super. LEXIS 157 – Judge Cowin,
while on the Superior Court gave the following litany of stray remarks.
Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir. 1984) (company
president's description of two older employees as "old ladies" and approving
references to younger employees as "young turks" were not probative of age
discrimination); Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir. 1980)
(statements by supervisor that employer's "future lay in its young" personnel
held to be merely "truisms" not probative of discriminatory purpose);
Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1330 (7th Cir.
1989) ("[Stray] remarks, . . . when unrelated to the decisional process, are
insufficient to demonstrate that the employer relied on illegitimate criteria,
even when such statements are made by the decision-maker in issue");
Gartland v. Hermetic Seal Corp., supra (supervisor's statement
that "we should get bright young people in" and that he wanted to "get rid of
deadwood" did not permit inference that plaintiff's discharge was motivated by
age bias); Long v. Chesapeake and Ohio Ry. Co., 42 Fair Empl. Prac.
Cas. (BNA) 990, 998 (E.D. Va. 1986) aff'd w/o op., 825 F.2d 407 (4th Cir.
1987) (employees' allegations that union officers referred to them as "old
women," "dead wood," "deteriorating" and "stagnant" held insufficient to
establish that union acted with age-based motivation); Berkowitz v. Allied
Stores of Penn-Ohio, Inc., 541 F. Supp. 1209, 1218-19 (E.D. Pa.
1982)(executive's remark that 57-year old plaintiff had "been around since the
dinosaurs roamed the earth" held insufficient to permit inference that stated
reasons for discharge were pretextual).
It is difficult to find an empirical basis for when this Dr. Jeykl/Mr. Hyde
evidence is considered dispositive and when it is irrelevant. One explanation
for the scarcity of reported cases with direct evidence may be the truism that
while most cases with any merit settle, cases with "strong" evidence nearly
always settle and thus are never reported. On the other hand, keep in mind my
Tale of the Two Dons and remember that plaintiffs’ attorneys view such evidence
through rose- (or, to be more candid, green-) colored glasses, while defense
counsel are selectively myopic to statements that hurt.