Frank L. LOEB, Plaintiff, v. TEXTRON, INC., Et Al., Defendants

BOWNES, Circuit Judge

(concurring and dissenting).

Because of errors made by the district judge in instructing the jury, I agree that *1024 the case must be reversed and remanded. Since I do not fully concur with certain aspects of the majority opinion, I set forth my own views.

I.

My overriding concern is that the majority opinion may be read as an attempt to dilute the force of McDonnell Douglas in discrimination cases. That case has been the lodestar, continually looked to by the Supreme Court in this area. See, e. g., Franks v. Bowman, 424 U.S. 747, 772 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976); International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977); United Air Lines v. McMann, 434 U.S. 192 , 98 S.Ct. 444 , 54 L.Ed.2d 402 (1977); Lorillard v. Pons, 434 U.S. 575 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1978); Furnco Construction Corp. v. Waters, 438 U.S. 567 , 98 S.Ct. 2943 , 57 L.Ed.2d 957 (1978). McDonnell Douglas first established the requirements of a prima facie case, emphasizing that the format therein described was appropriate to accommodate both the strong policy reasons for allowing plaintiff to proceed on the basis of a prima facie case and the further logical reason that the employer was the person best able to explain legitimate reasons for failing to hire (or firing) an otherwise qualified person who was within the protected class. While I agree that the precise formulation spelled out McDonnell Douglas need not be transmitted verbatim to the jury, I surely see no error in so doing. Furthermore, if the majority opinion can be read to suggest that the jury need not be informed of the role played by the prima facie case in the McDonnell Douglas matrix, I must demur.

■ Inherent rational grounds underlie the McDonnell Douglas prima facie case rule. As noted by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 359 n.45, 97 S.Ct. 1843, 1867 , 52 L.Ed.2d 396 (1977), “[p]resumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof.” The Supreme Court has utilized the prima facie case to meet the problems of proof in discrimination cases. The important role of the prima facie case should, therefore, be communicated to the jury. Failure to do so slights both the logic and the underlying policies giving rise to it. These reasons do not vanish once defendant has adduced sufficient rebuttal evidence to protect against a directed Verdict. Some instruction to the jury on the prima facie case is necessary for a full appreciation of what is involved in discrimination cases. So long as a trial court does not fall into the mistake of placing upon defendant an improper burden, its commenting on shifting burdens imports no error. Certainly, it will not be difficult for a trial judge to explain to a jury what a prima facie case means and what is necessary to rebut it.

The difficulties involved in instructing a jury in a products liability case, where liability is alternately premised on the three theories of strict liability, negligence, and warranty are no less complex than the shifting burdens outlined in McDonnell Douglas. Nor would such an instruction be beyond the ability of the average juror to adequately comprehend and appreciate. This important aspect of discrimination cases should not be sidestepped or hidden from the jury on the unsupported theory •that it might be too complex or confusing.

II.

I also think it important to set out precisely what burden shifts to the defendant once the plaintiff has made out a prima facie case. Although it has been stated that once the plaintiff has made out a prima facie case, the “burden of proof” shifts to the defendant, an analysis of the Supreme Court cases compels the conclusion that this does not mean proof by a preponderance of the evidence. In Furnco Construction Corp. v. Waters, supra, 438 U.S. at 577 , 98 S.Ct. at 2950, the Court discussed the McDonnell Douglas, test, explaining that once a prima facie case had been made out, “the burden which shifts to the employer is merely that of proving that he based *1025 his employment decision on a legitimate consideration, and not an illegitimate one such as race” (emphasis added). While this language suggests that the burden which shifts to the defendant is that of proof, rather than merely going forward, the Court’s action in our case of Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169 (1st Cir.), vacated and remanded, 439 U.S. 24 , 99 S.Ct. 295 , 58 L.Ed.2d 216 (1978), introduces a slightly different twist. In our opinion, we stated that the McDonnell Douglas standard required defendant “to prove absence of discriminatory motive.” 569 F.2d at 177 . In vacating the judgment, the Court found that this placed a heavier burden on defendant than either McDonnell Douglas or Furnco required. In harmonizing Furnco with the Court’s action in Sweeney , I conclude that the burden which shifts to defendant once a prima facie case has been set forth is that of “proving,” “articulating,” or “showing” a legitimate, nondiscriminatory reason for its action. 1 The burden which shifts to defendant is that of rebutting the inference established by plaintiff’s prima facie case. The burden of proof remains with the plaintiff; the burden which shifts to defendant is that of meeting the presumption or inference of improper motive which flows from plaintiff’s prima facie case. See International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 359 and n.45, 97 S.Ct. 1843 . Defendant is not required to prove a negative, i. e., absence of discriminatory motive, but rather is required to produce sufficient evidence to show the existence of a legitimate reason for the action. It is clear that defendant need not prove that the nondiscriminatory reason is not pretextual; this is the burden which shifts back to plaintiff once defendant has presented a legitimate, nondiscriminatory reason. Once a prima facie case is made out, the defendant must rebut it. The quantum of evidence will vary from case to case. More than a scintilla, but less than a preponderance is required.

III.

My next point of clarification is with that portion of the majority opinion, ante at 1011 and 1019-1020, where the burden which is placed on plaintiff is that of proving that he would not have been fired “but for” age. With the following gloss, I concur. The “but for” analysis has been used at least on one occasion by the Supreme Court in a Title VII case, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976), where the Court discussed the burden on plaintiff in showing defendant’s reasons to be pretextual.

The use of the term “pretext” in this context does not mean, of course, that the Title VII plaintiff must show that he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies; as the closing sentence to the quoted passage makes clear, no more is required to be shown than that race was a “but for” cause. See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 [ 95 S.Ct. 2362, 2375 , 45 L.Ed.2d 280 ] (1975).

Id. at 282 n.10, 96 S.Ct. at 2580. As I think this makes clear, the burden on plaintiff once defendant denies discriminatory motive is that of showing that the legitimate motive advanced by defendant is pretextual. In other words, plaintiff need not— once having established a prima facie case — canvass the entire waterfront and eliminate every other possible motive for the discharge. He must simply meet defendant’s alleged valid reason by showing it to be a pretext. To the extent that the majority opinion can be understood to place a heavier burden on plaintiff than this, I suggest that it places plaintiff under an impermissible handicap.

IV.

The majority addresses the question of the propriety of future damages in lieu of reinstatement in the Damages portion *1026 the opinion and suggests that it may be permissible to order such payments. Ante at 1023. I believe this to be in error. The majority cites two cases from the Fifth Circuit in support of this proposition, Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th Cir. 1967), and Goldberg v. Bama Mfg. Corp., 302 F.2d 152 (5th Cir. 1962). Contrary to the suggestion of my brethren, neither case is authority for the proposition that a damages award for lost future earnings can be made: both cases involved the possibility of a damages award for past lost wages. 2 The voluntary payment of $100 in Atlas referred to by the majority was for reimbursement for lost wages. 377 F.2d at 115 n.5. And in Bama, though there is one ambiguous statement, 302 F.2d at 156 , to the effect: “[s]uch an award might also include damages in lieu of reinstatement[ ]”, the case makes it clear that the damages being discussed are reimbursement for lost wages. Id. at 155-6 & nn.1 & 2. See also Mitchell v. Stewart Brothers Construction Co., 184 F.Supp. 886, 902-3 (D.Neb.1960); Mitchell v. Dyess, 180 F.Supp. 852, 854 (S.D.Ala.1960). The speculative nature of future earnings was specifically recognized in Stewart, 184 F.Supp. at 903 , a case cited by Bama at 302 F.2d 155 n.1 .

The Age Discrimination in Employment Act treats damages as follows:

(b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (e) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, that liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. § 626 (b). The statute speaks clearly in terms of “unpaid wages” as the measure by which damages are to be determined. 3 In Lorillard v. Pons, supra, 434 U.S. at 582, 98 S.Ct. at 871, the Court, in discussing the interface between FLSA and ADEA, observed that the “selectivity that Congress exhibited in incorporating provisions and in modifying certain *1027 FLSA practices strongly suggests that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA.” Damages under the FLSA have been restricted to unpaid wages and other compensation and an equal amount as liquidated damages. 4 Vasquez v. Eastern Air Lines, Inc., 579 F.2d 107 , 109 & cases cited therein (1st Cir. 1978). There is no warrant in either the statute or the case law for interpreting the FLSA as a basis for an award of future monies. The legislative history of the ADEA reveals congressional awareness of the problem substantial money damages might pose. Senator Javits, a floor leader for the Age Discrimination in Employment Act, stated: “The enforcement techniques provided by [the ADEA] are directly analogous to those available under the Fair Labor Standards Act; in fact [the ADEA] incorporates by reference, to the greatest extent possible, the provisions of the Fair Labor Standards Act.” 113 Cong.Rec. 31254 (1967). There is no provision in the FLSA for an award based on loss of future earnings; I think, therefore, that such an award is inconsistent with the ADEA. The Supreme Court impliedly adopted this view in observing “Congress must have meant the phrase ‘legal relief’ [in 29 U.S.C. § 626 (b)] to refer to judgments ‘enforcing . liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation.’ ” Lorillard v. Pons, supra, 434 U.S. at 583 n.11, 98 S.Ct. at 871.

Damages in age discrimination cases are not premised on the exact formulations permissible in an ordinary tort case. “Put more plainly, money damages in a case under the Age Discrimination Act must be liquidated as of the date of judgment.” Monroe v. Penn-Dixie Cement Corp., 335 F.Supp. 231, 235 (D.Ga.1971). See also Bishop v. Jelleff Associates, 398 F.Supp. 579, 597 (D.D.C.1974); Schulz v. Hickok Mfg. Co., Inc., 358 F.Supp. 1208, 1217 (D.Ga.1973). Cf. Brennan v. Ace Hardware Corp., 495 F.2d 368, 373 (8th Cir. 1974) (citing and following the language from Monroe, supra, 335 F.Supp. at 235 ). Nor is Mitchell v. De Mario Jewelry, 361 U.S. 288 , 80 S.Ct. 332 , 4 L.Ed.2d 323 (1960), to the contrary. That case involved a narrow point of statutory construction, namely, whether the 1949 amendment to the FLSA which added a proviso prohibiting the Secretary of Labor from seeking unpaid overtime wages on behalf of any employee, 29 U.S.C. § 217 , Oct. 26, 1949, c. 736, § 15, 63 Stat. 919 , also extended an interdict on the Secretary’s bringing suit for lost wages for retaliatory discharge under 29 U.S.C. § 215 (a)(3). The Court found that the Secretary could institute suit for lost wages. 361 U.S. at 294-95 , 80 S.Ct. 332 . Nothing in the case intimates that damages for speculative losses in the future can be awarded under the statute.

The law is clear, I believe, that damages must be liquidated as of the date of judgment.

. In vacating and remanding Sweeney, 569 F.2d 169 , the Supreme Court observed that “words such as ‘articulate,’ ‘show,’ and ‘prove,’ may have more or less similar meanings depending upon the context in which they are used . . .” Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24 , 99 S.Ct. 295 , 58 L.Ed.2d 216 (1978).

. To the extent that the two Fifth Circuit cases can be read for the proposition that an award of future damages might be permissible — a view which I vigorously dispute — there are two distinguishing points between those cases and the case at bar. Both Atlas and Bama antedated amendments to the FLSA allowing a private right of action. See 29 U.S.C. § 216 (b), Nov. 1, 1977, Pub.L. 95-151, § 10 (a), (b), 91 Stat. 1252 . In both of the cited cases, the Secretary of Labor brought the action. A private action carries with it the ever-present hope of substantial money awards, a factor not present in enforcement actions brought by the Secretary. I think the legislative history reflects that Congress did not intend substantial money damages to be a factor in any age discrimination cases. See Vasquez v. Eastern Air Lines, 579 F.2d 107 (1st Cir. 1978). The fact that the two cases entailed retaliatory discharge also distinguishes the principles governing the courts’ findings. As noted by the Supreme Court, “[i]n effectuating the policies of the Act the proper reach of equity power in suits by the Secretary under the wage provisions of the statute [1. e., 29 U.S.C. §§ 216 & 217], and that in suits under the discharge provisions [ 29 U.S.C. § 215 ], are attended by quite different considerations . .” Mitchell v. De Mario Jewelry, 361 U.S. 288, 295 , 80 S.Ct. 332, 337 , 4 L.Ed.2d 323 (1960). The enforcement provisions of the ADEA refer to 29 U.S.C. §§ 216 & 217. I am not sure to what extent cases brought under § 215 are instructive for cases alleging discriminatory rather than retaliatory discharge.

. ADEA lifted language directly from the FLSA regarding “unpaid minimum wages” and “unpaid overtime compensation” (emphasis added). We must assume the words “minimum” and “overtime” are superfluous and irrelevant to the ADEA.

. The trial court’s award for back pay and liquidated damages was clearly within the meaning and intent of the statute.