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Ventresco v. Liberty Mutual Insurance Company6/13/2002
motive or intent. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 12 &án.18 (1998).
Liberty's reliance on Abramian v. President & Fellows of Harvard College, supra, and Lipchitz v. Raytheon Co., supra, is misplaced. In Abramian, during its deliberations, the jury sent a question to the judge stating that they were "confused after reviewing instructions" and specifically asking whether they were "bound" to find discrimination if they found pretext. 432 Mass. at 115. The judge responded, "The answer to your question is 'Yes,'" and thereby explicitly and improperly directed the jury to find discrimination if they found pretext.
In Lipchitz, the judge began his instructions by stating that the burden with respect to pretext was on the plaintiff "to prove by a fair preponderance of the evidence that the reasons given by the defendant were not the real reasons for failing to promote herá.á.á. but were a pretext for gender discrimination," but then went on to state that the plaintiff could satisfy this burden by proving "that the employer's articulated reason or reasons was not the real reason or reasons for the hiring decision." 434 Mass. at 499án.11. The court found that the "entire import" of the judge's instruction on the plaintiff's burden to establish liability "was whether she had proved 'pretext,' not whether she had proved that [the defendant] had refused to promote her 'because ofá.á.á. sex,'" and that the error was "compounded by the additional instruction that if [the plaintiff] established that the reasons given by [the defendant] were not its 'real reason,' she had established [the defendant's] liability and the jury were to move on to the question of assessing damages." Id. at 502-503.
Here, by contrast, the judge started by telling the jury that the plaintiff was required to prove pretext but then went on to explain that the precise question the jury were called upon to decide was "not whether [the defendant's course of action] was the correct decision or a smart or intelligent decision, but whether it was a pretext for illegal discrimination." Viewing the instructions as a whole, the judge did not direct the jury to find discrimination if they found pretext alone.
We therefore reject Liberty's claim that, in instructing the jury, the judge committed error requiring reversal. We note, however, that the Supreme Judicial Court has expressly cautioned trial judges against continuing to draw jury instructions from the McDonnell Douglas "analytical framework," which was "established in the context of summary judgment 'to give judges a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case,'" Lipchitz v. Raytheon Co., supra at 508, quoting from Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979), but has been "problematic" when used as a basis of jury instructions. Lipchitz v. Raytheon Co., supra at 507.
2. Lost pension benefits. Lost pension benefits are recoverable in an action under G.áL. c.á151B. See Talbert Trading Co. v. Massachusetts Commn. Against Discrimination, 37áMass. App. Ct. 56, 65 (1994). See also Lindemanná& Grossman, Employment Discrimination Law 1817 (3dáed. 1996) ("lost pension and other fringe benefits may be recoverable as part of front pay"). Nevertheless, Liberty claims that the evidence was insufficient to support the jury's award of such lost pension benefits in this case because there was no evidence that, but for his layoff, the plaintiff would have remained employed at Liberty until he was sixty-five years old, and Liberty presented substantial evidence to the contrary. Liberty also claims that the jury relied on impermissible specul
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