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Ventresco v. Liberty Mutual Insurance Company6/13/2002
position within Liberty but that, if he failed to do so, his employment would be terminated and he would receive Liberty's thirty-nine week severance package.
The plaintiff thereafter did attempt to obtain another position within Liberty but was unable to do so. His employment with Liberty was accordingly terminated on Septemberá16, 1996. Kallio's position was also eliminated at this same time and he retired.
Liberty eventually filled the new accounting position with a man who was thirty-five years old and the new trafficking/production position with a woman who was twenty-nine years old. Liberty also created a new operations manager position within the LCS department and appointed to the position a woman who was thirty-five years old and whose prior position had also been eliminated in the reorganization of the department.
Following the termination of his employment with Liberty, the plaintiff was employed first as a senior production manager by CFI Design Group and then, starting in July, 1998, as a project manager by Fidelity Investments. While the plaintiff's basic annual salary at Fidelity was approximately $7,200 less than his salary had been at Liberty, the plaintiff was eligible to receive annual bonuses at Fidelity of up to fifteen percent of his salary. The plaintiff could also qualify for pension benefits at Fidelity but only up to $300 per month at age sixty-five. At the time he left his employment at Liberty, the plaintiff was fully vested in Liberty's pension plan and, whereas he was then entitled to a monthly payment of $1,122 at age sixty-five, he would have been entitled to a payment of approximately $2,330 per month if he had remained at Liberty until age sixty-five. Accordingly, the plaintiff lost substantial pension benefits as a result of the termination of his employment with Liberty, which he could not recover at Fidelity.
1. Jury instructions. Citing Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000), Liberty claims the judge erred in instructing the jury that the plaintiff was entitled to prevail if he proved "pretext," rather than discrimination. In Abramian, the Supreme Judicial Court held that, in an indirect evidence case such as the present one, proof that the reason the employer has articulated for its action is false or a pretext may permit, but does not require, the fact finder to infer discrimination. Id. at 117-118. Hence, it is error for the judge to instruct the jury that, if they find that the employer's articulated reason for its action is a pretext, then they are required (as distinct from permitted) to find that the employer engaged in discrimination. Id. at 118.
It is well settled, however, that "reversible error will not be found merely by 'consideration of fragment [of an instruction] which may be open to criticism.'" Lipchitz v. Raytheon Co., 434 Mass. 493, 507 (2001), quoting from Haven v. Brimfield, 345 Mass. 529, 533 (1963). Rather, " he trial judge maintains discretion in charging the jury, and a charge is to be read as a whole in determining whether the jury were properly instructed." Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86, 100 (1999), citing O'Connor v. Raymark Indus., Inc., 401 Mass. 586, 592 (1988).
In the present case, the judge submitted four special questions to the jury, only the first of which dealt with liability. That question was, "Did the defendant, Liberty Mutual Insurance Companyá.á.á. discriminate against the plaintiff, James V. Ventrescoá.á.á. by terminating his employment because of age?"
The judge drew her instructions with respect to this question primarily from the order of proof originally described i
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