passed over in favor of highly qualified individuals who were perceived to have superior interpersonal skills. To support its explanation, Hobart presented testimony by Wachholz that May's reputation disqualified him from consideration for any managerial posts. With respect to the single case in which May was allegedly replaced by a much younger employee -- Scott Schumm, age 34 -- Wachholz testified that Schumm was regarded as highly qualified and very good at working with others. He stated that Schumm cannot be viewed to have been improperly favored over Mr. May, as Mr. May was not even considered for the post because of his allegedly poor reputation.
Hobart further presented testimony by David Geiger. Geiger testified that May was generally viewed as a divisive force who was at odds with his peers within the company as well as with management at Hobart headquarters in Ohio. Geiger offered as specific examples three "poison pen" letters written by May, as well as an incident in which May allegedly accused his counterpart from another region of stealing a sale from him.
With respect to the "Food Retail" (as opposed to "Foodservice") positions for which Mr. May was not considered, Hobart presented evidence that candidates were categorized at the outset as being on one side of the business or the other. Because of his qualifications and experience, the plaintiff was put in the Foodservice category, thereby removing him from consideration for Food Retail jobs. Hobart claims that "virtually all" Foodservice personnel were precluded from Food Retail consideration, and vice versa.
Finally, Hobart presented evidence that in every case except for that of Scott Schumm, the persons selected for the Regional Manager posts were 40 or older, and therefore members of the ADEA protected class. The Mid-Atlantic Regional Manager, Mr. John Vollette, was six months older than May. Furthermore, when it came to choosing two sales representatives from three candidates, employees aged 65 and 52 were retained over one who was 42 years old. Some testimony was presented that the percentage of employees over 40 years of age was the same after the RIF as it was before.
Based on the above, it seems clear that Hobart met the limited burden of production and explanation required to drop the initial presumption of discrimination from the case. I emphasize that at that point in the case Hobart did not have a burden of persuasion with respect to its proffered non-discriminatory explanation for firing May. Rather, the company only had to raise a genuine issue of fact as to discrimination. Burdine, 450 U.S. at 254. Hobart successfully met this burden.
Plaintiff's evidence of pretext : Once Hobart met its burden of providing an explanation and supporting evidence of a non-discriminatory motive, May had two ways to proceed. One was to argue that defendant might have had some legitimate motivations for firing him, but that it would not have done so except for plaintiff's age. The case would then have proceeded as a "mixed-motive" case, with the plaintiff having to prove that discrimination played a determinative role, but not having to prove that the avowed legitimate motives were absent. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (in mixed-motive case "plaintiff must show that the employer actually relied on her gender in making its decision"). The alternative was to proceed under pretext analysis, in which the plaintiff tries to show that the employer's stated legitimate reasons for dismissal are false. Plaintiff thereby proves indirectly, through inferences drawn from the employer's lack of credibility, that he was the victim of intentional discrimination. Burdine, 450 U.S. at 256. May proceeded under pretext analysis, and emphasized evidence that Hobart's explanation for his firing was not worthy of credence.
As a threshold matter, May argued that he was qualified for a Foodservice or a Food Retail Regional Manager position, citing prior experience as a Regional Manager and written evaluations from his supervisor at the time, Bert Natalicchio. He further showed that the job description for the reorganized Food Retail Regional Manager job was identical to that for the Regional Manager position that May had previously held. To undermine Hobart's contention that people were rigidly categorized as either "foodservice" or "food retail" personnel for RIF reorganization purposes, May presented evidence that two less experienced individuals aged 39 and 34 were listed as being able to go into either side of the business.
The bulk of May's evidence pertains to his own record at the company. In an effort to undermine Hobart's assertions that he was a difficult employee, he presented personnel evaluations showing him to be the highest rated manager in his sector, and among the best in the country. He also showed that he had received Hobart's highest award for sales performance in 1982, 1987, 1988 and 1989. Moreover, May argues that an inability to get along with others was never specifically mentioned in any of his evaluations, and that he was never personally confronted about such a problem. He explains the reference to tact and diplomacy as development needs in his February 24, 1989 evaluation as being contradicted by other statements in the same document, and as having been down-played by his superior, Mr. Natalicchio.
Jeff Livezy, who had been a Branch Manager in Mr. May's sector, testified that the plaintiff had been an excellent manager about whom he had never heard any complaints from co-workers. Mr. Livezy also testified that in his experience as a member of the Sector Staff, a group consisting of Mr. May's peers and superiors, he had never heard any formal or informal criticism of Mr. May's behavior.
I reiterate that for JNOV purposes the evidence must be reviewed in the light most favorable to Mr. May. Furthermore, my role in ruling on this motion is not to make my own determination of who, as a factual matter, has the preponderance of the evidence. At issue is a question of law: does the plaintiff's evidence reach the minimum level required for the jury to have reached its verdict? In this case, I find sufficient evidence -- not a lot of evidence, to be sure, but enough to reach the threshold of sufficiency -- for a jury reasonably to conclude that Hobart's explanation for dismissing May was not credible. The documentary evidence shows that in many respects May was a valued employee who performed his job well. Furthermore, Mr. Livezy's testimony and the written evaluations provide at least some basis for believing that May got along better with others than Hobart claims. This is not to say that the testimony of Hobart's witnesses did not strongly support its explanation. The relative weight that the jury accords to each side's evidence, so long as each side meets the "minimum quantum" requirement, will not be second-guessed at this point. Similarly, it is not the court's province to substitute its own judgments about the credibility of live witnesses for those that the jury might have made in arriving at its conclusion. With these constraints, and based on the evidence in the record, I find that a reasonable jury could have found Hobart's explanation to be a pretext for its true motives in dismissing May.
The jury's inference of discrimination : This motion thus raises the difficult question of whether the finding of pretext, coupled with other evidence of discrimination, is legally sufficient to justify the jury's inference that Hobart dismissed Mr. May because of his age. The answer depends on two factors: (1) the permissible scope of inference from the evidence of pretext; and (2) whether those permissible inferences comport with the legal standards set forth in the jury instructions.
The extent to which a showing of pretext alone creates a permissible inference of discrimination is fairly settled, although recently the Supreme Court has cabined the strength of that inference. Substantial precedent indicates that proof of pretext can satisfy a discrimination plaintiff's entire burden. For example, in Burdine the Supreme Court held that the burden of proving pretext
merges with the ultimate burden of persuading the court that [plaintiff] has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.
Burdine, 450 U.S. at 256. The passage appears to state that a plaintiff may prove discrimination by persuading the factfinder that the employer's explanation is pretext. Indeed, it can be read to say that proof of pretext not only allows an inference of discrimination, but that it compels such a finding. Yet it is not clear that Burdine actually established the latter rule. The case holds that "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 253. This seems in some tension with equating pretext evidence with discrimination evidence. Furthermore, the authority that Burdine cites for the passage at issue requires evidence of actual discrimination, not merely of pretext. Id. at 256 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)).
The Supreme Court recently settled the issue in St. Mary's Honor Center, et al. v. Hicks, 125 L. Ed. 2d 407, 61 U.S.L.W. 4782, 113 S. Ct. 2742 (June 22, 1993). The Court resolved any ambiguity left in the wake of Burdine and McDonnel Douglas and held that a finding of pretext does not, as a matter of law, compel a finding in the plaintiff's favor. Id. at 4784, 4786. In its Supplemental Memorandum, Hobart argues that Hicks therefore requires a plaintiff to put forth evidence of discrimination that goes beyond evidence of mere pretext. Hobart is only half right: for a plaintiff to get a judgment as a matter of law, he or she must present evidence of actual discrimination. After Hicks, however, it is still permissible for a jury to infer discrimination from pretext; it simply is not required. Id. at 4784 & n.4.
Therefore, under current law, a factfinder may infer discrimination from proof of pretext. Indeed, I so instructed the jury at trial:
Since Hobart has offered some evidence for [its] reasons as to why Mr. May was not retained, you must return a verdict in Hobart's favor unless you find that Mr. May has established, by a preponderance of the evidence, that the reasons Hobart has given for Mr. May's not being retained are a mere pretext; i.e., that these reasons are not the true reasons and are just a coverup for what was in truth discrimination by Hobart against Mr. May based on Mr. May's age. Mr. May may demonstrate that Hobart's explanation is mere pretext by showing either that a discriminatory reason is more likely to have motivated Hobart than the reasons advanced, or that the reasons advanced by Hobart are simply unworthy of belief.