In Search of Mythological Creatures:

the Yeti, the Loch Ness Monster, the Sasquatch

and Direct Evidence of Discrimination


The Tale of Two Dons


Harvey A. Schwartz

Rodgers, Powers & Schwartz LLP

111 Devonshire Street, Suite 400

Boston, MA 02109

(617) 742-7010

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 decision.
  • 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 employment.
  • 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 evidence."
  • 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.