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Ventresco v. Liberty Mutual Insurance Company6/13/2002
n McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Supreme Judicial Court in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130 (1976). Thus, the judge instructed the jury that, to prevail on his claim of age discrimination, the plaintiff was required to prove by a preponderance of the evidence that (1)áhe is a member of the protected class, i.e., over forty years of age (see G.áL. c.á151B, §§á1,á4); (2)áhe was performing his job at an acceptable level of performance; (3)áhis employment was nevertheless terminated; and (4)áLiberty either did not treat age neutrally in deciding to eliminate his position or, alternatively, he was qualified for another position which was given to a younger person with similar or inferior qualifications and he did not apply for the position because Liberty, by acts or deeds, indicated to him that he would not be considered for the position.
The judge then further instructed the jury that, since Liberty had produced a nondiscriminatory reason for its action, the plaintiff must also prove "one further element of his claim, namely, that the reason given by the defendant, or reasons given by the defendant, was not the real reason for the termination of his employment. That is that the defendant's asserted reasons are false or a pretext." The judge then did state, as Liberty complains, that " f you find that the plaintiff has proven that the reasons given by the defendant are not believable or not the real reasons for the decision, then you must return a verdict for the plaintiff." She also stated that the plaintiff "bears the burden of proof on the ultimate issue of discrimination, and therefore must produce evidence that more likely than not, the articulated reason was a pretext."
Immediately after making these statements, however, the judge further stated that " he burden is on the plaintiff to prove that, but for his age, his employment would not have been terminated." The judge then instructed the jury that a critical issue in the case was the defendant's intent and that such intent could be proven by direct or circumstantial evidence and, further, that if the jury found that the defendant was motivated in part by unlawful bias and in part by a legitimate reason, then the defendant must prove that it would have made the same decision regardless of the plaintiff's age. The judge then stated the following:
"When assessing a plaintiff's claim that the reason given by the defendant is a pretext, you should focus on the motivation of the employer, not its business judgment. While an employer's judgment or course of action may seem poor or erroneous or mistaken, the relevant question is simply whether the given reason was a pretext for illegal discrimination, not whether it was the correct decision or a smart or intelligent decision, but whether it was a pretext for illegal discrimination" (emphases added).
The judge further explained:
"The employer's stated legitimate reason must be reasonably articulated and non-discriminatory, but it does not have to be a reason that you, the jury, would act on or approve. An employer is entitled to make its own policy and business judgments and may, for example, fire an adequate employee to hire one who will be even better, as long as that is not a pretext for discrimination" (emphasis added).
Thus, while the judge told the jury that they were required to find for the plaintiff if they found pretext, she also told the jury that, by pretext, she meant pretext for discrimination. Read as a whole, these instructions were adequate to inform the jury that the plaintiff was required to prove that Liberty had acted with a discriminatory
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