BLACK NIGHT:

The Supreme Judicial Court Loses Its Way In Knight v. Avon Products

Jonathan J. Margolis

Rodgers, Powers & Schwartz

Massachusetts Lawyers Weekly

Some people will lie, cheat or steal to get what they want. Juries figure that out. All too often, appellate judges—reading from a cold record and insulated by long tenure—do not. In Knight v. Avon Products, Inc., 438 Mass. 413 (2003), a Berkshire County jury found that an employer lied when it said that it fired the plaintiff for legitimate reasons, and that the real cause for her dismissal was age discrimination. A judge of the Superior Court refused to upset the verdict. The Supreme Judicial Court, however, overrode the trial judge and jury and ordered judgment for the defendant. The primary ground for doing so was a new, judicially-created doctrine that a difference of less than five years between the plaintiff and her replacement is presumptively too small to find age discrimination under Chapter 151B. This presumption lacks statutory support and is of questionable logic. Worse, it was employed to reverse the decision of a jury, despite Article 15 of the Declaration of Rights, which holds jury verdicts “sacred.”

Mary Shea Knight was hired as a district manager by Avon Products, the cosmetics company, in 1993. She was forty-four. At the time she started work with Avon, she owned and operated stores in Pittsfield and Lenox that sold cosmetics. The evidence allowed the jury to find that she told Avon executives about the stores at the time she was hired. She agreed to close the Lenox store and to turn operation of the Pittsfield store over to her daughter, who was disabled and needed a place to work. At Avon, the plaintiff’s performance ratings were positive. Indeed, after only a year on the job, she was inducted into the company’s “Circle of Excellence” for placing her district among the top ten percent in the region. Her supervisor told her that she had “a great future” with the company.

In October 1994, a year after starting with Avon, the plaintiff began to experience health problems. These seem not to have been disabling, but at one point she told her supervisor that she feared cancer of the thyroid. Shortly after that conversation, the plaintiff was told that there would soon be an opening in Pittsfield; she was asked to manage that district temporarily, along with Northampton. About a month later, the plaintiff was instructed to train Mar-E Bean, a 24-year old woman, as a district manager. When the plaintiff asked what district Bean was assigned to, she was told that the younger woman would be a “floater;” as far as the plaintiff knew all district managers had territories assigned. The plaintiff trained Bean for several weeks; the company then announced that Knight was to take over Pittsfield and Bean the Northampton district (apparently, Knight was agreeable to that arrangement). This happy state of affairs lasted for only about six weeks, when the plaintiff was notified that her employment was being terminated. The ostensible reason was that the company had just discovered that she owned a store that sold competing products—this despite evidence that she had told three supervisors about her store. To take over in Pittsfield, Avon appointed a woman twenty-eight months younger than the plaintiff, whom the plaintiff’s manager had previously said was not qualified for the position.

At trial, Knight contended that she was really replaced by the 23-year old Bean. Judge Ford, the judge who presided over the trial, agreed that that was plausible; in rejecting the defendant’s motion for JNOV he wrote that the jury could have reached such a conclusion.

Why, then, was Ms. Knight deprived of her judgment? Primarily because the SJC engaged in result-oriented jurisprudence. The justices seem to have decided that Ms. Knight had a weak case and did not deserve to win. The decision was then constructed to see that she did not. Much mischief ensued.

The result-oriented nature of the decision can be seen in the way that the court recited the facts. It started with those most favorable to the plaintiff—which is what we would expect in a case that came before the SJC on motions for JNOV and new trial, Fontaine v. Ebtec Corp. 415 Mass. 309, 312 (1993). Curiously, however, the court then related Avon’s version of events. Where the jury has found for the plaintiff, the verdict should be upset only when no reasonable person could have reached the same conclusion, Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993); once the facts have been found, the losing party’s story is irrelevant. That the SJC took the time to set out the defendant’s account is one indication of the way it viewed the case.

Having noted the factual versions of both sides, the court approached the primary issue that Avon had raised: its contention that the plaintiff had failed to show age discrimination, because the difference in her age and that of her replacement was too small to be cognizable.

The decision asserts that, “Age, unlike gender or race, is a relative term and not an immutable characteristic.” Like many statements that appeal in their simplicity and apparent logic, that one is wrong. Gender and race are not clear categories. Consider a transgendered individual who suffers more than “ordinary” men or women, the woman who does not appear to be as feminine as her competitor and is disfavored, or a male who is less “manly” than another employee. What do we do with Bill Richardson, the governor of New Mexico? Is he Hispanic, because of his features and heritage, or Anglo, because of his name and accent? How many black ancestors does it take to render a person African-American?

Nor is the relative nature of age confined to the calendar. People often look or act much older or younger than their years. Did Mary Shea Knight have gray hair while her replacement’s hair was still brown or blonde? Did Ms. Knight have less spring in her step than the younger woman who replaced her? Reading from the record, the SJC did not know, but the jurors—who saw and heard the witnesses —would have.

Based upon its debatable view of age discrimination, the court established a presumption that a gap of less than five years between plaintiff and replacement is too small for the plaintiff to prevail. It justified this age-gap presumption on this ground:

We recognize that a line has to be drawn somewhere. Otherwise, the byproduct of an essentially undefined standard could be inconsistent and possibly capricious jury verdicts with a lack of predictability for those claiming to be aggrieved, employers, and attorneys for both sides.

Contrary to what the court implies, Chapter 151B does draw a line: it outlaws discrimination based on age. But even on its own terms, the court’s reasoning does not stand up to analysis. In many areas of the law we run the risk of inconsistent jury verdicts, a lack of predictability and even capriciousness (although I am not sure what the court meant by that word). We know that a broken leg may bring substantially different verdicts in seemingly similar cases, but we have accepted that for centuries. The same is true in race- and sex-discrimination cases. It is difficult to say exactly when harassment becomes actionable, but we have developed a sense of what conduct is too weak to win a worthwhile verdict and what behavior demands quick settlement before the legal roof falls in. A few years ago, we were bombarded by contentions that almost any comment could be misconstrued into a suit for sexual harassment; as reality has taken hold, we hear far fewer of those horror stories. Over time, the range of verdicts for a particular set of facts becomes apparent, and parties condition their behavior on the basis of that range.

Why, then, should age-discrimination claims incur a bright-line test? The court does not explain, and its failure to do so suggests that the reason for drawing a bright line is because it could—that the assertedly mutable characteristic of age is amenable to precise testing, unlike race and sex discrimination claims.

The court gives no reason for picking five years as its standard. Federal cases show a wide disparity in what is considered a significant difference in age. Actually, there is no reasoned way in which to select a particular figure; five years just happened to appeal to the particular justices on the court.

Nor does the SJC explain why the standard set by a number of Appeals Court cases—that the plaintiff simply be younger than the replacement—would not continue to work. Cases such as Mitchell v. TAC Technical Services, Inc., 50 Mass. App. Ct. 90, 92 (2000), Powers v. H.B. Smith, Inc., 42 Mass. App. Ct. 657, 661 (1997) and Tardanico v. Aetna Life & Casualty Company, 41 Mass. App. Ct. 443 (1996) have not spawned a flood of claims by individuals marginally older than those who replaced them, and the court gives us no reason to think that that would be likely to change if it had rejected Avon’s argument.

Indeed, the SJC recognized that it could not really set a bright-line test: the statute outlaws all discrimination based on age, and G.L. c. 151B, §9 commands that the statute be “construed liberally for the accomplishment of [its] purposes.” So, the court established the five-year mark as a presumption:

[A] plaintiff may still present a triable claim if there is other evidence that the termination occurred in circumstances that would raise a reasonable inference of unlawful age discrimination.”

All very well, but Ms. Knight had such evidence: that, as the jury found, Avon’s reason for firing her was a pretext. As we know from Blare v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 440-45 (1995), and later cases, pretext, by itself, permits the fact-finder to infer unlawful motive—and motive is at the heart of unlawful discrimination.

Yet Ms. Knight did not keep her judgment or at least get a new trial, because the SJC made the error of assigning the age-difference presumption to the first part of the three-stage analysis created in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and adopted by Massachusetts in Wheelock College v. M.C.A.D., 371 Mass. 130, 134-37 (1976). Under that formula, the plaintiff must first show a prima facie case; when she does so, the employer then has the burden of producing a lawful reason for its action; the plaintiff is then permitted to show that the asserted reason was not the true one.

The court assigned its newly-created presumption to the first stage of McDonnell Douglas: it held that a prima facie case of age discrimination requires a showing that the plaintiff is over forty, did her job satisfactorily, suffered an adverse job action, and was replaced by a person substantially younger—or can show by other evidence that she was a victim of discrimination. Having done that, the court then limited the proof that could be used to show unlawful motive at that stage.

Specifically, the court refused to permit evidence of pretext to rebut the age-difference presumption; according to the SJC, pretext is limited to the third stage of the McDonnell Douglas process. That conclusion controverts logic and precedent.

If pretext can establish “that the basis of the employer's decision was unlawful discrimination,” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000), then pretext must also raise “a reasonable inference of unlawful age discrimination,” which is what the court held necessary to rebut the age-difference presumption. More important, the McDonnell Douglas test was never intended to segregate particular kinds of evidence, or to assign them to a specific stage of the inquiry. That is demonstrated in Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978), the case that the SJC relied on to explain the reasoning behind the pretext standard it adopted in Blare. In Furnco, the Supreme Court observed that

A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.

438 U.S. at 577. In Blare, the SJC quoted from the succeeding sentences of the same paragraph to explain why pretext is sufficient to get a case to the jury:

[W]e know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration.

419 Mass. 446. The United States Supreme Court did not restrict evidence of pretext to the third stage of McDonnell Douglas; there is no reason for the SJC to do so.

In deciding that certain evidence might rebut the age-difference presumption but that other kinds of proof—such as pretext—may not, the SJC exalts a formalistic view of McDonnell Douglas that was never intended: “The method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Const. Corp. v. Waters, supra, 438 U.S. at 577. The formalism of Knight v. Avon’s analysis contrasts poorly with the flexibility that the court has shown in the past toward plaintiffs attempting to explore motives that, as forum after forum has noted, are almost always hidden.

The SJC’s flawed approach in Knight v. Avon Products is especially unfortunate, because it came in an age-discrimination case. In the United States, we suffer from an almost universal prejudice against age—a bias that affects even those of us who are old enough to be protected by anti-discrimination statutes. We exalt the new and the young; we look for fresh, new ideas, often oblivious to the fact that those ideas were thought of thirty or forty years ago, only to be put aside then because they did not work. As I suggested to a jury, our attitude is

Get a new car, get a new house,

Get a new boat, even get a new spouse.

In Knight v. Avon Products, the Supreme Judicial Court did nothing to rebut that prejudice; indeed, the court made it easier for employers to practice age discrimination. Employers now have a road map for replacing older workers: simply make sure that the replacement is less than five years younger than the person let go; if no claim is made, after 300 days the replacement can then be cast aside with impunity.

The court also erred in substituting its judgment for that of the jury, making precisely the kind of determination that jurors are better at than judges. Indeed, Knight v. Avon’s most lasting effect may be to undermine further the jury system that has been under attack from a wide variety of interested parties. It is time, indeed past time, for judges to acknowledge the confidence that our system places in ordinary citizens to decide cases, even difficult ones—and to recognize that that confidence was well-placed.