Graff v. Eaton

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.



                                No. 88-146


Nancy Graff                                  Supreme Court

     v.                                      On Appeal from
                                             Washington Superior Court
Milton Eaton, Individually
and as Secretary of Vermont                  October Term, 1989
Agency of Development and
Community Affairs, and State
of Vermont



James L. Morse, J.

William W. Pearson, John H. Tarlow and Andre D. Bouffard of Downs Rachlin &
   Martin, Burlington, for plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, Montpelier, Richard W. Norton, Special
   Assistant Attorney General, Rutland, and Geoffrey A. Yudien, Assistant
   Attorney General, Montpelier, for defendants-appellees


PRESENT:  Allen C.J., Peck and Gibson, JJ. and Barney, C.J. and Springer,
          D.J., (Ret.), Specially Assigned


     GIBSON, J.   Plaintiff appeals from a jury determination that
defendants did not discriminate against her on the basis of gender when she
was not hired on a flextime schedule as editor of Vermont Life magazine.  We
reverse and remand for a new trial.
     Plaintiff was hired as acting editor of Vermont Life in June 1983,
shortly after the acrimonious dismissal of the prior editor.  She began her
editorship on a part-time basis, but it gradually evolved into a full-time
commitment.  Pleased with her performance as acting editor, then Secretary
of the Agency of Development and Community Affairs, Milton Eaton,
encouraged plaintiff to apply for the permanent position.  At first,
plaintiff declined to do so, citing her desire to care for her infant son;
eventually, she changed her mind.  The Vermont Life advisory board found
plaintiff to be the most qualified candidate, and Eaton offered her the job
of permanent editor.
     Plaintiff conditioned her acceptance on the State giving her a flexible
work schedule.  Although a certain degree of flexibility was inherent in the
editor's position, a flextime schedule had never been officially sanctioned
for any of the previous editors, all of whom had been men.  Eaton refused to
grant plaintiff a flextime schedule, stating that it was inappropriate in
light of the recent managerial instability following the prior editor's
dismissal.  At one point during the discussions, plaintiff claims Eaton
stated that if he gave her flextime, every female state employee with small
children would also want a flexible schedule.  Eaton testified that he did
not recall making the remark.  Because the conflict over flextime was never
resolved, plaintiff never accepted the State's offer.  Eventually, a male
was chosen as the magazine's editor and no flextime schedule was provided.
     Plaintiff filed suit against Milton Eaton, individually and in his
representative capacity, the Vermont Agency of Development and Community
Affairs, and the State of Vermont, claiming that, in violation of Vermont's
Fair Employment Practices Act, 21 V.S.A. {{ 495-496, the Agency refused to
hire her on a flextime schedule because of prohibited sex stereotyping.
Following a two-week trial, the jury returned a verdict for defendants.  On
appeal, plaintiff claims that (1) the jury instructions improperly allocated
the burdens of proof, and (2) defendants' closing argument was improper and
prejudicial.
     Plaintiff first contends that the trial court erred by failing to
instruct the jury that once a plaintiff proves that gender was a motivating
factor in the employment decision, an employer may avoid liability only by
proving that it would have made the same decision even if it had not taken
the plaintiff's gender into account. (FN1) We agree and conclude that the
omission requires that we reverse and remand the case.
     The Fair Employment Practices Act, which makes it unlawful for an
employer "to discriminate against any individual because of [her] . . .
sex," 21 V.S.A. { 495(a)(1), is patterned on Title VII of the Civil Rights
Act of 1964, 42 U.S.C. {{ 2000e-2000e-17, State v. Whitingham School Board,
138 Vt. 15, 17, 410 A.2d 996, 997 (1979); "[t]he standards and burdens of
proof under state law are identical to those existing under federal law."
Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048, 1053 (D. Vt. 1985).
Nevertheless, in contrast to the federal act, (FN2) jury trials are permitted in
actions under the Vermont act; therefore, we need not follow every nuance of
federal court pronouncements on Title VII in FEPA actions.  See, e.g.,
Stork v. International Bazaar, Inc., 54 Wash. App. 274, 282-83, 774 P.2d 22,
26-27 (1989) (citing undue complexity and potential jury confusion, court
declined to adopt federal method of allocating burden of proof for cases
brought under state age discrimination law patterned after Title VII).
     Under current federal law, "[t]he critical inquiry . . . is whether
gender was a factor in the employment decision at the moment it was made."
Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989).  When the plaintiff
proves that a discriminatory reason, such as gender, played a motivating
factor in an employment decision, the burden of persuasion then falls upon,
and remains with, the employer to prove "by a preponderance of the evidence
that it would have made the same decision even if it had not taken the
plaintiff's gender into account."  Id. at 258.  Placing the burden of proof
on the employer in such situations is appropriate because, once the
plaintiff has shown that an illegal, discriminatory motive was a factor in
the employer's decison, the reason for applying the McDonnell Douglas
formula (FN3) --to uncover the motives involved in the employment decision--no
longer exists.  See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564,
1568-69 (2d Cir. 1989).  In Price Waterhouse, the Court ruled that the
following evidence was sufficient proof of a discriminatory motive to place
the burden of persuasion on the employer: (1) the employer heavily relied on
stereotypical comments submitted by colleagues in connection with the
plaintiff's application for partnership; (2) female candidates for
partnership in previous years had been evaluated in sex-based terms; and (3)
the decisionmaker's spokesman told the plaintiff after the decision had been
made that, in order to improve her future chances for partnership, she
should "walk more femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry."  490 U.S.  at 235-36.
     In the instant case, plaintiff presented evidence that gender was a
motivating factor in Eaton's decision not to hire her.  In addition to
testifying that preceding male editors had enjoyed flexible work hours, (FN4)
plaintiff testified that defendant Eaton told her: "Nancy, if I give you
flextime, then every woman in state government with small children will want
flextime." (FN5) The jury should have been instructed that if it found that
plaintiff had shown by a preponderance of the evidence that gender was a
motivating factor in the refusal to hire plaintiff on a flextime schedule,
then defendants must show by a preponderance of the evidence that the same
decision would have been made even absent the discriminatory motive.  See
Grant, 880 F.2d  at 1569 (citing Price Waterhouse, court held that it was for
jury to decide whether evidence, if believed, showed that age played a
motivating role in decision).  Instead, the court gave, in relevant part,
the following instruction:
               The Defendant has come forward with evidence
          claiming that it did not accept plaintiff's condition of
          employment for one or more legitimate, that is,
          nondiscriminatory, reasons.  In order to prevail,
          plaintiff must prove to you by a preponderance of the
          evidence that the reasons claimed by the defendant are a
          pretext.  That is to say, the reasons the defendant is
          using are a cover-up of a discriminatory reason.  If you
          decide the defendant's reasons are a cover-up of a
          discriminatory reason, then your verdict shall be for
          the plaintiff.  If not, then your verdict shall be for
          the defendant.
               To put it another way, if you find that there are
          mixed reasons for plaintiff's not being hired, legiti-
          mate and discriminatory, then you are to decide a
          simple question.  If plaintiff would have been denied
          the editorship given her condition of employment, with-
          out any influence from the fact that she was female,
          then the plaintiff has not proven her claim and your
          verdict shall be for the defendant.
               On the other hand, if you decide her gender did
          prevent her condition of employment from being accepted,
          regardless of other reasons, then your verdict shall be
          for the plaintiff.
     At no time did the trial court indicate to the jury that, if it were to
find plaintiff had shown that gender was a motivating factor in the
employment decision, then defendants had to prove that they would have made
the same decision even absent the discriminatory motive.  By failing to
mention defendants' burden of proof, these instructions were erroneous and
prejudicial.
     Because of the erroneous instructions, we cannot affirm the jury
verdict in this case unless we conclude that, as a matter of law,
plaintiff's evidence was insufficient for the jury to determine that gender
was a motivating factor in defendants' decision not to hire her on a
flextime schedule.  We cannot so conclude.  As the Court in Price
Waterhouse pointed out, stereotypical remarks made at work do not
necessarily prove that gender was a motivating factor in a particular
employment decision; "[t]he plaintiff must show that the employer actually
relied on her gender in making its decision."  490 U.S.  at 251.  Such
stereotypical remarks, however, "can certainly be evidence that gender
played a part."  Id. (emphasis in original). (FN6) Certainly, comments such as
the one offered into evidence here, which implies that an impermissible
criterion was a factor in the employment decision, are sufficient evidence
for the jury to conclude that the employer's decision was, at least in part,
discriminatory, thereby placing the burden of persuasion on the employer to
prove that the same decision would have been made absent the discriminatory
motivation.
     If the jury believed that Eaton made the alleged statement, it
reasonably could have considered the statement proof that gender was a
factor in his refusing to hire plaintiff on her terms.  Eaton's alleged
statement implies that he would not hire a woman, Graff, on a flextime
schedule because other women would want the same type of schedule.  This, in
turn, indicates that he might have given a male candidate such a schedule
had it been requested because it would not have set a precedent for female
state employees with children.  Based on the court's instruction, the
verdict could well have resulted from a conclusion by the jury that gender
was a motivating factor in defendants' employment decision but that
plaintiff did not meet her charged burden of showing that the discriminatory
factor actually led to the decision.  Assuming the jury found that mixed
motives were present, the verdict might have gone the other way if the court
had properly placed the burden on the employer.  We cannot allow the jury's
verdict to stand.
     Defendants point out that Eaton never admitted making the statement
that no previous male editor was ever given a guaranteed flextime schedule,
and that the man eventually hired to fill the position was not given a
flextime schedule.  According to defendants, no flextime schedule was ever
approved because there were legitimate reasons for not providing such a
schedule to the incoming editor.  These considerations do not affect our
holding.  It is for the jury to determine whether the evidence is credible
and whether it played a motivating role in the employment decision.  Grant,
880 F.2d  at 1569; Perry v. Kunz, 878 F.2d 1056, 1061 (8th Cir. 1989).
Defendants had an opportunity to present all of their evidence before the
jury, which was then free to conclude that plaintiff had not been given the
job for reasons other than her gender.  Nonetheless, the submission of
Eaton's alleged statement entitled plaintiff to a charge informing the jury
members that if they believed the statement and determined that it met
plaintiff's burden of showing that a discriminatory motive was a factor in
the employer's decision, defendants then had the burden of showing that the
same decision would have been made absent the discriminatory motive.
     We need not address plaintiff's second claim of error regarding
defendants' closing argument.
     Reversed and remanded.

                              FOR THE COURT:




                              _____________________________________
                              Associate Justice




FN1.    We reject defendants' contention that plaintiff's objection to the
jury instructions was not sufficiently distinct to preserve her argument
concerning the proper placement of the burden of proof in "mixed-motive"
cases -- cases where there is evidence that both legal and illegal motives
factored in the employment decision.  In her objection to the instructions
at trial, plaintiff specifically cited a mixed-motive case and referred to
her trial memorandum, which addressed the mixed-motive issue.

FN2.    The consensus has been that there is no right to trial by jury
under Title VII because the remedy it provides -- reinstatement and award of
back pay -- is essentially equitable.  Grandison v. United States Postal
Service, 696 F. Supp. 891, 895-96 (S.D.N.Y. 1988).  But cf. Beesley v.
Hartford Fire Ins. Co., 723 F. Supp. 635, 652 (N.D. Ala. 1989) (jury trial
guaranteed by Seventh Amendment when employee seeks "compensatory damages"
under Title VII).  The correctness of jury instructions, however, is often
at issue in Age Discrimination in Employment Act cases, which may be tried
by jury and which adopt Title VII case law regarding allocations of the
burden of proof.  See, e.g., Nelson v. Green Ford, Inc., 788 F.2d 205, 207
(4th Cir. 1986).

FN3.     Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),
the plaintiff first must establish a prima facie case by showing that (1)
she belongs to a protected class, (2) she applied and was qualified for a
job, (3) she was rejected, and (4) after her rejection, the employer
continued to seek applicants with similar qualifications.  See State v.
Whitingham School Board, 138 Vt. 15, 19, 410 A.2d 996, 997-98 (1979)
(following McDonnell Douglas approach).  Once a prima facie case is
established, the employer must show that the employment decision was based
on legitimate, nondiscriminatory considerations.  Id.  If the employer is
able to do so, the plaintiff is then required to prove by a preponderance of
the evidence that the considerations proffered by the employer are a mere
pretext.  Id.  The burden of persuading the factfinder that the defendant
intentionally discriminated against the plaintiff remains with the plaintiff
at all times.  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981).

     We note that when the McDonnell Douglas formula is applied in federal
age discrimination cases with juries as the factfinders, the jury need only
be told that the plaintiff must prove, by a preponderance of the evidence,
that age was one of the determinative factors in the employer's decision.
See, e.g., Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1180 (6th Cir.
1983).  The McDonnell Douglas formula was intended to aid the judge in
organizing the evidence presented, not to be given as a prospective jury
charge; accordingly, the jury need not ever hear phrases like "prima facie
case" or "shifting burden of proof."  See, e.g., Nelson v. Green Ford,
Inc., 788 F.2d 205, 207 (4th Cir. 1988); Hagelthorn v. Kennecott Corp., 710 F.2d 76, 85 (2d Cir. 1983).

FN4.    One may argue that there was no evidence that any preceding male
editor had ever been allowed a flextime schedule.  Plaintiff readily
conceded that no previous editor had asked for or been given the same
flextime schedule she sought -- two mornings off per week with time to be
made up in the evenings or on weekends.  She did testify, however, that she
sought merely what preceding male editors had been given: the flexibility to
take off ten of the forty conventional state hours (7:45 a.m. to 4:30 p.m.)
and make up the time during nonconventional hours.  For example, it was
undisputed that one former editor came to work at 9:30 every morning and
worked until 6:00 or 6:30 in the evening.  Plaintiff testified that she
wanted only the same flexibility, but in larger blocks on two weekdays.

FN5.    Upon hearing Mr. Eaton's remark, plaintiff did not immediately
confront her potential employer with a charge of sexist stereotyping.  On
this point, she testified:
          I remember not only what he said, but what I felt when
          he said it.  He knew when he said it that it was a
          sexist thing for him to say.  And I was ashamed at my
          response.  I considered for one minute confronting him
          on it, and then I wanted the job.  And so I said I'm
          going to ignore it.  I'm going to disassociate myself
          from all those other women and not stand up for them.
          I'm going to go for this job.

FN6.    We are aware of the case of Gagne v. Northwestern Nat'l Ins. Co.,
881 F.2d 309 (6th Cir. 1989), an age discrimination case in which the court
affirmed summary judgment for the employer.  In Gagne, the employee had
received a series of oral and written reprimands for mishandling several
cases during the year before she was fired for unsatisfactory work
performance.  Id. at 313.  Although the employee claimed that the supervisor
had said something to her once to the effect that he "needed younger blood,"
the employee herself "characterized the comment at issue as an isolated
remark uttered by her supervisor during a meeting attended by a number of
employees, and indicated that the statement was made facetiously and was not
directed at any particular individual."  Id. at 314.  Such circumstances
differ from this case considerably.