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May 31, 1990

JOSEPH F. TENNES, Plaintiff,

Suzanne B. Conlon, United States District Judge.

The opinion of the court was delivered by: CONLON


 Plaintiff Joseph Tennes is a former employee of the Commonwealth of Massachusetts at the Chicago regional office of its Department of Revenue ("the Chicago office"). The Chicago office is primarily involved in conducting tax audits and insuring compliance with Massachusetts tax laws by out-of-state corporations doing business in Massachusetts. The Chicago office audits corporations in the midwest.

 Tennes began working for the Commonwealth in 1983. The Commonwealth fired him in 1986 at the age of 58. In his complaint, Tennes alleges that the firing violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA" or "the Act"). Tennes contends that his direct supervisor, audit chief Donald Lamb, harbored age bias and influenced the decision to fire him. Two other individuals made the decision to fire Tennes: multistate chief Bernard Crowley, Lamb's immediate supervisor, and deputy commissioner Stephen Shiffrin. Crowley made the initial decision to fire Tennes. Shiffrin held a hearing on the issue of Tennes' discharge and refused to reinstate him.

 At trial, Tennes prevailed under the ADEA against defendants the Commonwealth of Massachusetts, and Stephen W. Kidder, the Commissioner of the Department of Revenue (collectively "the Commonwealth"). On January 25, 1990, the court entered judgment on the jury verdict that the Commonwealth violated the ADEA. The Commonwealth moves for judgment notwithstanding the verdict and, in the alternative, for a new trial. Tennes moves to amend the judgment order to include back pay in the amount of $ 124,497.76, liquidated damages of an additional $ 124,497.76, reinstatement, and injunctive relief. Finally, Tennes petitions for his attorneys' fees and costs.

 I. The Commonwealth's Motion for Judgment Notwithstanding The Verdict

 The Commonwealth moves for judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b). In ruling on the motion, the evidence and all reasonable inferences that may be drawn from that evidence must be viewed in a light most favorable to Tennes. Cygnar v. City of Chicago, 865 F.2d 827, 834 (7th Cir. 1989).

 A. The Jury Finding of Pretext

 Using an indirect method of proof first established in McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and reaffirmed in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), Tennes was required to establish a prima facie case of age discrimination by proving:

1) Tennes was in the protected age group (40 or older);
2) Tennes' job performances met the Commonwealth's legitimate expectations;
3) despite his performance, he was discharged; and

 See, e.g., La Montagne v. Am. Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). If Tennes met this burden, the Commonwealth could avoid liability by demonstrating that the true reason for the discharge was a legitimate business reason. Young v. Will County Dep't of Public Aid, 882 F.2d 290, 293 (7th Cir. 1989). The Commonwealth has the burden of production, but the burden of persuasion rests with Tennes. La Montagne, 750 F.2d at 1409. If the Commonwealth articulated some legitimate nondiscriminatory reason for the discharge, the burden shifted to Tennes to prove by a preponderance of the evidence that the reasons offered by the Commonwealth were a pretext for discrimination. Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 20 (7th Cir. 1987).

 In its answers to special interrogatories, the jury concluded that Tennes was meeting his employer's reasonable expectations. The jury concluded that age was a determining factor in Tennes' termination. In addition, the jury found that the Commonwealth's stated reasons for discharging the plaintiff -- poor performance and failure to be at his job or explain his whereabouts on August 7 and 8, 1986 -- were a mere pretext for age discrimination.

 The Commonwealth asserts that the jury could not reasonably conclude that the reasons for the firing were a pretext for age discrimination. In order to infer pretext, the jury necessarily concluded (1) that Lamb criticized Tennes on the basis of Tennes' age, and (2) that the decisions made by Crowley or Shiffrin were based, at least in part, on misleading or distorted information provided by Lamb. The Commonwealth contests both of these conclusions.

 1. Evidence of Lamb's age-bias

 Statements by Lamb are the basis of liability in this action. Lamb made disparaging remarks to the effect that Tennes was too old for his job, that he should color his hair, that he was losing his memory, that his sexual ability was probably impaired, among others. Lamb criticized Tennes for unsatisfactory performance in four memoranda entitled "formal corrective action" ("the corrective memoranda"). Tennes asserted at trial that Lamb's criticisms were insignificant or false.

 The Commonwealth contends the jury could not reasonably infer that Lamb was biased against Tennes because of his age. The Commonwealth argues that Lamb issued favorable evaluations of Tennes contemporaneously with his age-related remarks. Only after Tennes complained about Lamb's age-related remarks did Lamb criticize Tennes' job performance. The Commonwealth asserts that these circumstances cannot support an inference of age-bias.

 In order to prove that the Commonwealth's stated reasons for his firing were pretextual, Tennes had to prove that the reasons were false and provide some proof of motive and intent to discriminate on the basis of age. Holly v. City of Naperville, 603 F. Supp. 220, 230 n. 4 (N.D. Ill. 1985). Tennes provided evidence that Lamb's criticisms were unfounded. The jury could reasonably infer that Lamb's age-related remarks reflected his state of mind regarding Tennes' age. The alleged discriminatory action -- the corrective memoranda and the firing -- took place after Tennes asked Lamb to stop making age-related remarks. The jury could infer that Lamb stopped making overt discriminatory statements while committing discriminatory acts. Statements prior to the corrective memoranda and the firing are a reasonable indication of Lamb's motive and intent.

 The Commonwealth asserts that undisputed facts adduced at trial defeat any inference of discriminatory intent. Tennes testified that most auditors in the Chicago office joked about his age. Even before Lamb joined the Chicago office, Tennes would answer greetings by stating that he was "not old for a bad man" or "not bad for an old man." However, the evidence suggested that Lamb's comments were unsolicited and sarcastic.

 The Commonwealth points out that at the time Tennes received critical memoranda from Lamb, Tennes did not believe the memoranda reflected age discrimination. After Tennes allegedly missed work without justification, Lamb supposedly asked for suspension rather than discharge. After the discharge, Tennes believed Lamb was sincere and sympathetic. Tennes did not initially conclude that he was the victim of age discrimination.

 However, Tennes' claim of age discrimination is not based upon a process of elimination. See, Holly, 603 F. Supp. at 232. Tennes offered substantial evidence that he received disparate treatment. Viewing inferences in Tennes' favor, other auditors received less severe disciplinary action than Tennes when they failed to complete assignments, arrived at work late or left work early. Lamb wrote the corrective memoranda after Tennes asked Lamb to curb his age-related remarks. Tennes presented evidence that Lamb's complaints were vague, insignificant or unsupported. In addition, after Tennes was fired, Lamb prepared and circulated an "affidavit" for signature by co-workers stating that Lamb had never made age-related remarks. Many auditors refused to sign the document. Lamb's behavior permits an inference that after Tennes was fired, Lamb attempted to conceal his age-biased motivation.

 2. Decisions by Crowley and Shiffrin

 Crowley's decision to fire Tennes was influenced by Lamb's input. Crowley admitted that he considered information supplied by Lamb when he determined to fire Tennes. Lamb's contribution included (1) the corrective memoranda; (2) the report that Lamb had tried to call Tennes on August 7, 1986; and (3) reports about the incident of Tennes' absence on August 7 and 8, 1986. Tennes provided evidence that these reports were false or insignificant. The jury was entitled to conclude that Lamb's information influenced Crowley's decision to fire Tennes. The Commonwealth argues that Crowley made objective findings contributing to his decision to fire Tennes. However, the jury could reasonably conclude that Crowley's "objective findings" were not the sole determining factor behind the firing. See, La Montagne v. Am. Convenience ...

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