King v. General Electric Co.

CUDAHY, Circuit Judge,

dissenting:

If there was any error in this trial, it favored the defendant, not the plaintiffs. As the majority concedes, once the plaintiffs proved to the satisfaction of the first jury that a pattern and practice of age discrimination existed at the Bloomington plant, General Electric should have shouldered the burden to show that the plaintiffs were not victims of its discriminatory policy. Franks v. Bowman Transportation Co., 424 U.S. 747, 772 , 96 S.Ct. 1251, 1268 , 47 L.Ed.2d 444 (1976).

GE fired all of the plaintiffs before us in 1984 (so 1985 is a non-issue). As to the period when these plaintiffs were dropped from the rolls, there was evidence that the manager of the plant said that changes would have to be made, especially with the older employees, because they were set in their ways and not ready to take on new things. Tr. Vol. 7 at 152. He repeated similar statements from the witness stand. 1 One of his deputies was more blunt: “We’re going to get rid of these old farts and get some new blood in here.” Id. at 143. Much of the rest of the anecdotal evidence had the same damning character.

*629 The majority never comes to grips with the case the plaintiffs presented. This is not a case in which the jury was called upon to infer a pattern or practice from a number of isolated instances of discrimination. Instead, the plaintiffs presented direct evidence that the policy-makers of the company decided to lay off older workers as a matter of policy. . They backed their case with strong statistical evidence — evidence that the majority criticizes only for its failure to include a period after the plaintiffs were fired. I am at a loss to see why the finer points of the McDonnell-Douglas analysis are of much relevance when the jury could smell the smoke from the recently fired gun.

Elsewhere the majority opinion seems to contradict itself by saying that the 1985 Sobin evidence was weak as to pattern and practice. Maj. op. at 626. But the majority opinion later criticizes consolidation of the Sobin plaintiffs on the ground that the 1983-84 conclusion was significantly aided by the presumably non-probative 1985 material. Maj. op. at 627. It seems to me that this period-by-period analysis has all been waived, since the defendant failed to ask for any special verdicts as to specific periods. Actually, the only real error the majority opinion can ascribe to the consolidation of the cases is that the Sobin plaintiffs failed to allege a pattern or practice. But there is no rule that prescribes how discrimination must be proved. International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 , 97 S.Ct. 1843, 1866 , 52 L.Ed.2d 396 (1977).

These plaintiffs have presented a strong case, bolstered by direct evidence and sustained by two juries. Some of the procedure may have been unorthodox, but, as I have noted, this has been to the benefit of the defendant. I therefore respectfully dissent.

. "[W]e had a lot of people who had been around a lot of years, who had gotten into some bad habits, who had forgotten the sense of urgency, had forgotten customers, were really tied into and many on a treadmill doing the same thing over and over and over every day. It had gotten old. They had lost interest. They had other priorities_” Tr. Vol. 11 at 1158.