Age Discrimination Cases

Robert L. Scott vs. Boston Housing Authority & another. No. 00-P-354. Suffolk. February 15, 2002. - October 24, 2002. Present: Jacobs, Kass, & Berry, JJ. Boston Housing Authority. Anti-Discrimination Law, Age. Employment, Discrimination. Practice, Civil, Instructions to jury, Special verdict, Judgment notwithstanding verdict. At the trial of a complaint alleging age discrimination in employment, the judge erred in instructing the jury that they were required to find for the plaintiff if they found that the plaintiff had proved that the defendant’s reason for terminating the plaintiff’s employment was not believable or was not the real reason for the nonrenewal of the plaintiff’s contract; however, the error was not of reversible dimension, because the jury, in their answers to special verdict questions put to them by the judge, in substance made findings that the defendant wilfully had acted with a discriminatory animus. [290-294] Berry, J., concurring. At a civil trial, the judge did not err in denying the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, where the jury’s finding, on the evidence, was not irrational. [294-295] Civil action commenced in the Superior Court Department on September 26, 1988. Following review by this court, 42 Mass. App. Ct. 1106 (1997), the case was tried before Peter M. Lauriat, J. Wilbur E. Commodore for the defendants. Frederick T. Golder for the plaintiff. Robert A. Firth. Kass, J. On the basis of a jury verdict, the trial judge ordered entry of a judgment that the Boston Housing Authority (BHA) and its general construction superintendent, Robert A. Firth, had acted in violation of G. L. c. 15IB, § 4, by failing to renew the plaintiff Robert L. Scott’s contract with that agency. The unlaw-fui discrimination, as found by the jury, was based on age. Aggregate damages assessed against the defendants under the judgment came to $751,436. The appeal, lodged on behalf of both defendants, falls into two parts: first, that the defendants were entitled to allowance of their timely motion for judgment notwithstanding the verdict or a new trial on the ground that there was no evidentiary support for the jury’s answer to a decisive special verdict question; and second, that the defendants were entitled to their motion for judgment notwithstanding the verdict because the evidence, taken in the light most favorable to the plaintiff, did not support a rational inference by the jury that the defendants had discriminated against Scott on account of age. We affirm. 1. Procedural history. There had been two previous trials. At the first trial, the jury found for the defendants on the age discrimination claims; were deadlocked on a race discrimination claim; and found for the plaintiff against Firth for tortious interference with Scott’s contractual relationship with the BHA. The judge in that first trial allowed a motion for judgment notwithstanding the verdict on the count for tortious interference. The case then proceeded to a second trial confined to the issue that the first jury could not resolve, the race discrimination claim. This time, the jury returned a verdict for the defendants on that account. On appeal, we vacated the verdicts and judgment in the first trial because the trial judge, in response to a communication from the jury that they were deadlocked on the claim of race discrimination, had engaged in a discussion with the jurors, had responded to their questions, and had supplemented his instructions with neither the parties nor their counsel present. We expressed our concern that the irregularity of the colloquy between the judge and the jury might have infected the integrity of the jury verdicts and, as noted, we ordered that the judgment in the first trial be vacated. We affirmed the judgmerit in the second trial. That took race discrimination out of the case, leaving age discrimination and tortious interference for the third trial. Our memorandum of decision in the appeal was unpublished; the orders are reported at 42 Mass. App. Ct. 1106 (1997). 2. Facts. The BHA first hired Scott in 1976 as a contract laborer, i.e., he was not placed on the BHA payroll but entered into a six-month contract with the BHA to work as a glazier (his trade) in the rehabilitation of apartments operated by the BHA. At the end of the six months, the crew of which Scott was a part was let go because the BHA had ran out of money for rehabilitation work. Two or three weeks later Scott was given a new contract to do window glazing work. By October, 1981, Scott’s contract with the BHA provided that he work in the capacity of “foreman/glazier.” That contract was, again, for six months. The next contract, dated April 1, 1982, provided that the BHA “desires to engage the contractor in the capacity of crew supervisor” for a period of one year. Until 1987, the BHA continued to renew Scott’s annual contracts. During 1986, he was assigned to supervise work at the Bromley-Heath project. By letter dated January 27, 1987, the executive director of the Bromley-Heath Tenant Management Corporation wrote to Scott that “due to the unavailability of sufficient funds,” Scott’s services as a crew supervisor would be terminated effective January 30, 1987. Through the intercession of David Gillis, the acting director of the BHA’s “force account,” Scott was rehired in February, 1987, for a six-month term. Thereafter, there was no renewal. When Scott’s employment by the BHA ended, he was 48 years old. At the time the BHA did not re-up with Scott, the general construction superintendent of the BHA was Robert A. Firth. He had arrived on the scene in 1986. Firth’s avowed reason for casting Scott adrift was that the BHA’s rehabilitation fund was in one of its periodic states of depletion; cuts needed to be made. Notwithstanding the money shortage, Firth was able to keep as construction supervisors his brother-in-law, James Mordant, age 38, and his cousin, Paul Gallant, and he found jobs at the BHA for two other brothers-in-law, one as assistant general construction superintendent, and another as a laborer. In 1987, the year in which Scott’s engagement by the BHA ended, the BHA retained or initiated contracts with construction supervisors aged 46 (two such persons), 47, 57, and 61. 3. The jury charge and the jury verdict. The jury returned their verdict on the basis of seventeen written special verdict questions. Subsequent case law has recommended against putting employment discrimination cases to a jury on the basis of special questions that stratify jury deliberations into a structure of analysis originally expounded in connection with criteria for deciding such cases on a motion for summary judgment. See Lipchitz v. Raytheon Co., 434 Mass. 493, 508 (2001); Ventresco v. Liberty Mut. Ins. Co., 55 Mass. App. Ct. 201, 209 (2002). In the light of subsequent decisional history, the special questions were wrong in a significant respect. In a trilogy of cases, the Supreme Judicial Court has illuminated that the central issue in employment discrimination cases is whether the employment decision, e.g., discharge, failure to promote, failure to hire, was the result of discriminatory animus. To put it another way, the real reason for the employment decision must be based on unlawful considerations of age, sex, race, color, religion, or sexual orientation. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117-119 (2000). Lipchitz v. Raytheon Co., supra at 504-506. Weber v. Community Teamwork, Inc., 434 Mass. 761, 775 (2001). The judge, concerning what by way of shorthand we may call the “pretext” point, instructed the jury as follows: “If you find the plaintiff has proven that the defendant’s reason is not believable, or not the real reason for the non-renewal of the plaintiff’s contract, then you must find in favor of the plaintiff on his age discrimination claim” (emphasis added). In light of the trilogy of cases cited above, this was error. Unless a court expresses that a decision shall have prospective effect only, common law decisions of our courts apply to past as well as future proceedings or transactions. Payton v. Abbott Labs, 386 Mass. 540, 565-570 (1982). That error, even had it been objected to, was not of reversible dimension, however, because it was washed away by the jury’s answer to two of the subsequent written special verdict questions put to them by the judge. By the first written question, the jury were asked whether Scott had presented a prima facie case of discrimination on the basis of age. They answered, “Yes.” Second, the jury were asked: “Did the [BHA] articulate, and present evidence in support of a legitimate, non-discriminatory reason for not renewing Mr. Scott’s contract in August of 1987?” They answered, “No.” In support of its motion for judgment notwithstanding the verdict, the BHA focused particularly on the inconsistency of that response with the evidence. It urged that it had articulated, and submitted evidence in support of, a legitimate, nondiscriminatory reason for not giving Scott a new contract in 1987, namely, that the BHA was out of money for the rehabilitation projects on which Scott had been working. The record supports the BHA. Contracts between Scott and the BHA that contained express provisions that they were subject to funding had been admitted in evidence. This was evidence that the rehabilitation work rested on uncertain financial footings. Firth testified that the reason the contracts with Scott came to an end was that funds for the particular work that Scott had been doing had dried up. That testimony was corroborated by a letter placed in evidence from the executive director of the Bromley-Heath Tenant Management Corporation, informing Scott of the “phasing out of the Vacancy Rehab Program at Bromley-Heath” because of funding shortfall. Scott had administered work under that program. If we give meaning to the words of the second question, which faithfully reflected the inquiry to be made in stage two of the framework of analysis for employment discrimination cases, the BHA had articulated and had presented evidence of a legitimate, nondiscriminatory reason for not renewing Scott’s contract. Whether the jury believed that evidence and thought this was the real reason for not renewing Scott’s contract was a question for a later phase of the inquiry. The point was emphasized in Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766 (1986): “We reiterate that the employer’s burden following a prima facie showing of discrimination is ‘only a responsibility to produce evidence. Once the employer has proposed a reason and presented supporting facts, the presumption of discrimination is dispelled. . . . The employer need not persuade the trier that it was correct in its belief’ (citations omitted, emphasis in original). Trustees of Forbes Library v. Labor Relations Comm’n, [384 Mass. 559,] 566 [1981]. The reasons given for a decision may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail.” See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-255 (1981), and Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000), similarly stating that at the second phase of the framework of analysis, the employer’s burden is the introduction of admissible evidence of the nondiscriminatory reason that the employer had for its action regarding the plaintiff. That phase does not involve a credibility assessment of that evidence. Reeves v. Sanderson Plumbing Prod., Inc., supra. As the special verdict questions were constructed, once the jury answered the second question “no,” they were to skip the third question and proceed to assessing damages. The third question asked: “Has Mr. Scott proven that the reason given by the defendant [BHA] for not renewing his contract in August of 1987 was a false reason or not a real reason?” At this juncture we must consider the consequences of the failure to instruct that the plaintiff must prove not only that the BHA’s proffered reason for not renewing his contract was not a real reason for failing to renew his employment, but also that the BHA had acted with a forbidden discriminatory purpose. We must also consider the consequences of the jury having answered question two in a manner that (as they were instructed) involved a credibility assessment of the BHA’s evidence of a legitimate, nondiscriminatory reason for its employment action. We are persuaded by the jury’s answer to the fourth and fifth special verdict questions that the jurors combined the questions and that they found that the BHA had discriminated against Scott on the basis of age, i.e., with discriminatory animus. The fourth question asked the jurors to find the compensation due Scott “for each of the following losses or harms, if any, caused by the [BHA’s] discrimination against Mr. Scott because of his age.” The fifth question was: “Did the defendant [BHA] know or have reason to know that its conduct with respect to Mr. Scott in August of 1987 was in violation of the law against age discrimination?” The jurors answered, “Yes.” In their responses to the fourth and fifth questions, the jury in substance made findings that the BHA wilfully had acted with a discriminatory animus. In light of those answers, the error in the jury instructions and the jury’s mistaken answer to question two were without consequence. The answers to questions four and five tell us (a) what the jury would have had to say about whether it thought the BHA’s proffered reason a real reason; and (b) that it had tied Scott’s nonrenewal to unlawful age discrimination. 4. The motion for judgment notwithstanding the verdict based on insufficiency of the evidence. At the close of the plaintiff’s evidence, the BHA moved for a directed verdict. Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). The judge denied the motion with the remark, “There is slim evidence to support the Plaintiff’s claim at this point. But on the theory that it has been tried twice before, and I do not wish to see it tried a fourth time, if at all possible, I’ll let the case go forward. And we’ll try and see where it goes from here.” When the jury returned their verdict, the BHA moved for judgment notwithstanding the verdict. The question before a court in the case of a motion for a directed verdict and in the case of a motion for judgment notwithstanding the verdict is the same: whether anywhere in the evidence, applying it in the light most favorable to the plaintiff and without weighing the Credibility of the witnesses or otherwise considering the weight of the evidence, any combination of circumstances could be found from which a “jury could reasonably return a verdict in favor of the plaintiff, i.e., whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the plaintiff’s case.” Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89-90 (1987). See Forlano v. Hughes, 393 Mass. 502, 504 (1984); Waite v. Goal Sys. Intl., Inc., 55 Mass. App. Ct. 700, 701 (2002). In his direct case, the plaintiff Scott testified, in summary, that he had been let go at age 48 and that others, younger than he, had been retained doing construction supervision work. In addition, the general construction superintendent, Firth, had found work for his younger brothers-in-law and cousin. Evidence no better than the plaintiff’s say-so is an extraordinarily weak basis for taking the case to the fact finder, but it is evidence and, if credited, might carry the day. The plaintiff’s evidence at this stage tends to be viewed with considerable tolerance. See Abraham v. Woburn, 383 Mass. 724, 727-730 (1981). The BHA’s case enhanced the inferences that could be drawn in favor of the plaintiff. Although the BHA introduced evidence in support of its insufficient funds defense, the agency’s evidence also permitted the inference — with a good deal less stretching — that there was money enough to hire Firth’s relatives. As the evidence stood at the close of the case, the jury were entitled to disbelieve the BHA’s reason for not renewing the plaintiff’s contract. The BHA introduced evidence that it had retained, as construction supervisors, men aged 61, 57, 47, and 46 — older or close to Scott’s age of 48. Nevertheless, Scott was let go and some younger men in his line of work were retained until 1992, when the BHA ended the force account program. It is likely that had we been fact finders, we would have found that not rehiring Scott had everything to do with nepotism and nothing to do with age discrimination, but the jury’s finding of age discrimination, on the evidence, was not irrational. Abraham v. Woburn, supra. Judgment affirmed. The components of the judgment were as follows: (1) For lost wages and benefits, $248,000. Those damages were doubled because the jury found that the defendants knew or had reason to know that their conduct with respect to Scott violated the law against age discrimination. See G. L. c. 151B, § 9. Total compensatory damages, therefore, came to $496,000. (2) For emotional distress, $65,000, doubled under G. L. c. 151B, § 9, to $130,000. (3) On account of counsel fees, $121,875, and legal costs of $3,561. At the third trial, the jury found for Firth on Scott’s claim of tortious interference. There was evidence that the BHA used the contract labor device to avoid putting construction trade workers, for whom there was fluctuating need, on a permanent payroll, which included benefits. We infer from the record that the Bromley-Heath Tenant Management Corporation acted as an agent for the BHA in the administration of work at the BHA’s Bromley-Heath project. A decidedly condensed version of the classic framework for analyzing employment discrimination cases, first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), and then applied in Massachusetts in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138-139 (1976), would be as follows. Step one: the prima facie case (the plaintiff is a member of a protected class, performed at an acceptable level, was fired, and replaced with someone of similar qualifications). Step two: the employer gives a lawful reason for why it fired the plaintiff. Step three: the plaintiff may show that the reason the employer gave for firing the plaintiff was a pretext. Step four (as clarified by the recent trilogy of cases): the plaintiff must show that the real ground for discharge was discriminatory animus. Cases that applied and fine tuned the analytical framework are collected in Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 297-301 (1991). Many of the cases describe the defendant’s obligation in phase two as having to produce “credible” evidence to support its articulated reason for the employment action taken against the plaintiff. See, e.g., Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 442 (1995); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). The addition of the adjective “credible” is likely to be confusing to jurors who, untutored in exquisite legal distinctions, will reasonably understand that deciding whether credible evidence has been received means deciding whether they believe, i.e., credit, that evidence. Special verdict question number two asked simply: did the BHA present evidence of a legitimate reason for its action? The trial judge delivered his charge to the jury in speech, as is customary, and also reduced his instructions to writing, providing the jury with copies to take into their deliberations. In both the oral and written forms, the judge charged the jury that there is a three-stage order of proof. If the plaintiff proves his prima facie case, the judge told the jurors, “then the burden shifts to

Matthew Adamczyk vs. Augat, Inc. (and a companion case). Nos. 99-P-329 & 99-P-1000. Barnstable. February 27, 2001. October 3, 2001. Present: Greenberg, Beck, & Rapoza, JJ. Anti-Discrimination Law, Age, Termination of employment. Practice, Civil, Summary judgment. Limitations, Statute of. On motions for summary judgment at the trials of civil complaints alleging age discrimination by a corporation when it closed a plant, claims brought more than nine months after the corporation’s written notice to the plant workers establishing the date of the closure and the employees’ release dates were time-barred, because the notice was sufficiently clear, and additional information in the notice raising the possibility of continued employment through employee transfers to another facility did not toll the statute of limitations. [720-724] Plaintiffs in age discrimination in employment cases failed to demonstrate that the applicable statute of limitations was equitably tolled by the actions of their employer. [724] Civil actions commenced in the Superior Court Department on July 11, 1997, and April 6, 1998, respectively. The cases were heard by Gerald F. O’Neill, Jr., J., on motions for summary judgment. Denise A. Chicoine for the plaintiffs. Mary Jo Johnson {Lisa Stephanian Burton with her) for the defendant. Dorothy O’Brien & Matthew P. Bunnell vs. Augat, Inc. Greenberg, J. By a memorandum dated December 20, 1995, the defendant, Augat, Inc. (Augat), notified all employees, including the plaintiffs in these two consolidated appeals, that “[a] target date of September 30, 1996 has been established as the closure date for the Mashpee plant.” In separate Superior Court actions, the plaintiffs complained that Augat selected the Mashpee facility for closure because its work force consisted of a significant number of older workers. The same Superior Court judge granted summary judgment in favor of Augat in each case, and the plaintiffs appeal. 1. The procedural history. The plaintiffs Matthew P. Bunnell and Dorothy O’Brien filed individual age discrimination charges with the Massachusetts Commission Against Discrimination (MCAD) six days apart: Bunnell on September 24, 1996, and O’Brien on September 30, 1996. The plaintiff Matthew Adam-czyk’s complaint to the MCAD followed on October 11, 1996. Approximately 124 other employees filed similar charges with the MCAD around the same time, claiming that the decision to close the facility was made in violation of G. L. c. 151B, § 4(1B). On February 12, 1997, the MCAD notified Adamczyk, O’Brien, and other employees over the age of forty that it was transferring the investigation of all charges to the Federal Equal Employment Opportunity Commission (EEOC). The MCAD retained jurisdiction of the charges brought by Bunnell and other employees who were under forty years of age. On May 22, 1997, plaintiffs’ counsel requested withdrawal of charges pending before both the MCAD and the EEOC. However, on July 31, 1997, the EEOC issued a dismissal and notice of suit rights to all of the Augat employees with pending complaints, including the plaintiffs Adamczyk and O’Brien. Upon investigation, the EEOC determined that “it is unlikely further investigation of this charge would result in a finding that there is a reasonable cause to believe that [the statute] was violated.” EEOC’s preliminary investigation report concluded that Augat presented “legitimate, non-discriminating reasons for deciding which facility to close.” On Adamczyk’s complaint to the Superior Court, a judge ruled that his claim was time-barred under G. L. c. 151B, § 4(1B), because he did not file a timely discrimination charge with the MCAD. Shortly thereafter, the same judge dismissed the O’Brien and Bunnell complaint for the same reason. As to Bunnell, the judge also ruled that he could not make a prima facie case of age discrimination under G. L. c. 15 IB because he was under the age of forty. 2. The facts. The facts are, to a large extent, not in dispute. On December 20, 1995, Augat announced its decision to close the Mashpee facility at a plant-wide meeting attended by its employees. At that meeting, all employees of the Mashpee facility, including the three plaintiffs, were informed that, as of September 30, 1996, the Mashpee facility would officially close; two of its product lines would be sold to another company, and remaining operations would be consolidated with Augat’s Sanford, Maine, and Lugano, Switzerland, operations. That same day, Sam Smookler, then vice-president and general manager of Augat’s interconnection products division, distributed a memorandum and a letter to all employees explaining why Augat had decided to close the Mashpee facility. Augat had formed a task force in March of 1995 to study different options to improve profitability and, after several months of study, the task force had concluded the Mashpee facility should be closed. The memorandum noted that the Mashpee facility produced the two product lines scheduled to be sold and stated that a significant portion of the Mashpee facility’s remaining production capabilities were duplicative of production capabilities at other Augat plants. The memorandum stated, in pertinent part: “A target date of September 30, 1996 has been established as the closure date for the Mashpee plant. . . . [Djetailed plans for the transition will be reviewed with each affected employee. Employees at the Mashpee plant are being notified today of our decision to close the plant. . . . [W]e will make every effort to provide job transfer opportunities to other [Augat] facilities for those interested.” The accompanying letter also stated in pertinent part: “As your release date approaches you will be contacted by Human Resources for a detailed review of your benefits and the continuation options that exist as well as outplacement assistance . . . .” On February 1, 1996, in light of the pending plant closure, Augat sent additional letters that were individually addressed to each employee at the Mashpee facility. These February 1, 1996, letters reaffirmed that the plant was closing and that their employment with Augat would end. Adamczyk and O’Brien, like most Augat employees, received a notice stating that their “release dates” from Augat were to occur by September 30, 1996. Bunnell, who worked in the small systems and test department, received notice confirming that his department either would be discontinued by Augat or sold to a new owner — either way, his employment with Augat was scheduled to end. Bunnell’s, O’Brien’s, and Adamczyk’s last dates of employment were September 9, September 30, and October 11, 1996, respectively. 3. Analysis. We commonly apply Federal law construing Federal antidiscrimination statutes in interpreting G. L. c. 15IB. See, e.g., School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 423 Mass. 7, 11 n.8 (1996). Some Federal courts have held that a limitations period for a discrimination claim starts to run once the facts that support the claim “are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994). See Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748-749 (1st Cir. 1994). Failure to comply with the six-month limitations period results in barring the claimant from proceeding with a civil employment discrimination claim. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). See also Williams v. Raytheon, 220 F.3d 16, 20 (1st Cir. 2000). The plaintiffs’ argument is that the December 20, 1995, memorandum and accompanying letter contained equivocal language regarding the prospective date of termination. They characterize Augat’s representations as “misleading” and contend that their claims were filed within six months of September 30, 1996, the official date of the Mashpee plant’s closing or, in the alternative, within six months of the dates of their respective terminations (“release dates”). From the material submitted by Augat in support of its summary judgment motions, a different picture emerges. Augat points out that the December 20, 1995, memorandum and the accompanying cover letter state with certainty that the Mashpee plant will close on September 30, 1996, and that the plaintiffs received specific release dates. The question is whether the additional information in the memorandum raising the possibility of employee transfers to another facility tolled the statute of limitations. We conclude that, under these circumstances, Augat’s notice to the plaintiffs of the plant closure was sufficiently clear and that the prospect of continued employment did not toll the statute of limitations. Because we affirm the dismissal of the plaintiffs’ claims based on their untimeliness, we need not reach plaintiff Burnell’s additional appeal of the judge’s ruling that age discrimination claims could not be brought by plaintiffs under forty years of age. “[T]he proper focus [for determining when a statute of limitations period commences] is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 423 Mass. at 11 n.8 (emphasis in original), quoting from Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). In the Ricks case, a professor alleged national origin discrimination under Title VII and 42 U.S.C. § 1981, arising from the college’s decision to deny him tenure. When the college notified him that tenure had been denied, it gave him a final, one-year terminal contract. At issue was whether the statute of limitations began to run when the college notified him of the tenure decision or, as he argued, one year later, on the actual date of his termination. The Supreme Court held: “In sum, the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.” Id. at 258. (Emphasis in original.) “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Id. at 257. Here, the plaintiffs allege that Augat selected its Mashpee facility for closure because it determined that the Mashpee work force consisted of a significant number of older workers. Like the tenure decision in Delaware State College v. Ricks, supra, the alleged discriminatory act was the selection and announcement of the Mashpee facility for closure, not the plaintiffs’ termination dates. In opposition to the defendant’s motions for summary judgment, the plaintiffs furnished the documents that they received on December 20, 1995. Although these materials contain Augat’s statements holding out the possibility of jobs in other plants, when read in context, they do not create the uncertainty the plaintiffs profess. For example, the plaintiffs note that Augat’s letter informed them that “continuation options . . . exist.” This quoted fragment, however, is part of a full paragraph that, far from leading employees to believe that they might be retained, reinforces the impending closure of the plant. The subject of the letter was the benefits that each employee would receive due to the closing. For its part, Augat’s statement that it would attempt to provide job opportunities cannot be construed as an equivocal termination notice. Contrast Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 399 (1994). In Wheatley, an employee who had been “declared surplus” by management claimed age discrimination under G. L. c. 151B. Id. at 396 n.6. The notice consisted of a single conversation and a letter stating that he would be terminated “if he were unable to secure another position within AT&T [after ninety days].” Id. at 396. The plaintiff argued that, in granting AT&T summary judgment, the judge erred because it was a question of fact whether the termination notice was sufficiently “unequivocal” to trigger the statute of limitations. The Wheatley court agreed and held that the plaintiff reasonably refrained from filing an age discrimination charge during the ninety-day “transition period” because “[t]he filing of such a charge may prejudice any pending reconsideration of the [termination] decision.” Id. at 399 n.8, quoting from Ricks, 449 U.S. at 266 n.2 (Stevens, J., dissenting). By contrast, in the instant case, all of the employees received more than one letter affirming the pending termination of the entire plant’s work force. There was no analogous transition period. The situation is, therefore, distinguishable. An employee in this situation could not reasonably expect that reassignment assistance meant that the employer might change the decision regarding the closure. (See Simmons vs. Allsteel, Inc., U.S. Dist. Ct., No. 95-C-3049 [N.D. Ill. Nov. 12, 1999], where the alleged discriminatory act was the employer’s decision permanently to close a particular facility. A delay in the implementation of the closure decision was held not to toll the running of the statute of limitations. Instead, the period began to run as soon as the plaintiffs were notified of the allegedly discriminatory decision.) In the instant cases, there is no genuine issue as to the date of the alleged discriminatory act or as to the plaintiffs’ cognizance of their prospective termination dates. See Ching v. Mitre Corp., 921 F.2d. 11, 14-15 (1st Cir. 1990) (statute triggered when employee notified of decision to terminate); Watson v. Eastman Kodak Co., 235 F.3d 851, 857 (3rd Cir. 2000) (statute triggered by receipt of letter of pending termination despite implementation delay and expressed possibility that plaintiff could transfer to another division); Simmons vs. Allsteel, supra at 11 (statute triggered by announcement of decision to close plant and not tolled until plaintiffs were actually released). See also Cooper v. Saint Cloud State Univ., 226 F.3d 964, 967 (8th Cir. 2000) (statute triggered by notice of decision to terminate despite conditional nature of termination). Finally, we note that in Wheatley, there was a genuine issue of material fact about the expiration of the limitations period, because the employee’s summary judgment materials demonstrated that he became aware of the employer’s alleged discriminatory act by a memorandum issued ten days after his actual termination indicating, for the first time, that work formerly performed by the plaintiff had been transferred to younger employees. Here, no such dispute exists. There is nothing to the plaintiffs’ argument that the statute of limitations should be “equitably tolled.” The plaintiffs have failed to demonstrate that Augat made affirmatively misleading statements to lull them into not asserting their claims. Courts apply the principle of equitable tolling sparingly in employment discrimination cases. See Jensen v. Frank, 912 F.2d 517, 521 (1st Cir. 1990); Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996); Shafnacker v. Raymond James & Assocs., 425 Mass. 724, 728 (1997). See also Morris v. Government Dev. Bank of Puerto Rico., 27 F.3d at 750. So far as it appears from the record appendix, there is no probative evidence that Augat affirmatively misled the plaintiffs with respect to the plant closure or that the plaintiffs were unaware of the alleged age discrimination. See Kale v. Combined Ins. Co., 861 F.2d 746, 752 (1st Cir. 1988); Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1212-1213 (7th Cir. 1993). See also Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 288 (8th Cir. 1988); Wagner v. Sperry Univac, 458 F. Supp. 505, 512 (E.D. Pa. 1978), aff’d, 624 F.2d 1092 (3d Cir. 1980), to the same effect. Judgments affirmed. The plaintiffs sought class action certification pursuant to Mass.R.Civ.P. 23(a), 365 Mass. 767 (1974). However, a Superior Court judge ruled that they failed to satisfy the prerequisites and denied the requested certification. The MCAD also issued a finding. On December 29, 1998, the MCAD addressed the complaints of the thirty-seven former employees under forty years of age who originally filed charges of discrimination, including Bunnell. The MCAD’s December 29, 1998, notice to Bunnell concluded that he presented no claim under G. L. c. 15 IB for age discrimination because (hose protections do not extend to persons under forty: “an individual must be forty years of age or older at the time of an alleged discriminatory employment action to be covered” under the age discrimination provisions of chapter 151B. . The plaintiffs also contend that the judge erred in ruling that their breach of good faith and fair dealing claims were preempted by G. L. c. 151B. We agree with the Superior Court judge’s determination that in this instance, the claims for the breach of the covenant of good faith and fair dealing are preempted by G. L. c. 151B. See, e.g., Green v. Wyman-Gordon Co., 422 Mass. 551, 555, 558 (1996). The entire sentence reads as follows: “As your release date approaches you will be contacted by Human Resources for a detailed review of your benefits and the continuation options that exist as well as outplacement assistance.” Even if we construe the December 20, 1995, notice as equivocal, additional notices were given on February 1, 1996. These notices informed the plaintiffs of the Mashpee plant closure and made no mention of the possibility of other employment within the company. Timely charges with the MCAD would then have required filing by the plaintiffs no later than August 1, 1996, which did not occur.

WOLFF v AUTOMOBILE CLUB OF MICHIGAN Docket No. 120283. Submitted December 5, 1991, at Detroit. Decided April 21, 1992, at 9:25 a.m. Leave to appeal sought. Robert F. Wolff brought an action in the Wayne Circuit Court against the Automobile Club of Michigan and the Auto Club Insurance Association, claiming wrongful discharge from employment. The jury returned a verdict for the plaintiff, finding breach of contract and age discrimination, and the court, Lucile A. Watts,. J., granted the defendants’ motion for remittitur, finding that the jury’s verdict did not reflect the plaintiff’s failure to mitigate damages. The defendants appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. Viewed in a light most favorable to the plaintiff, the evidence was sufficient to support the jury’s verdict. The trial court properly denied the defendants’ motion for a judgment notwithstanding the verdict. 2. The trial court did not abuse its discretion in admitting the testimony of four former' employees of the defendants concerning the circumstances under which each was hired. Any prejudicial effect was outweighed substantially by its probative value. 3. Whether the plaintiff was constructively discharged from the member advisor position he took after he had been terminated from his position as a commissioned sales representative was a question for the jury. Accordingly, the trial court properly denied the defendants’ motion for a judgment notwithstanding the verdict with respect to this issue. 4. Whether the defendants proved that the plaintiff was unreasonable in not seeking other employment was a question the jury; accordingly, it was an abuse of discretion for the trial court to enter remittitur, because the jury properly could have found that the plaintiff did not act unreasonably. References Am Jur 2d, Civil Rights §§ 226 et seq.; Constitutional Law § 770; Job Discrimination §§ 98 et seq., §§ 1337 et seq., §§ 2076 et seq., § 2112, §§ 2171 et seq. See the Index to Annotations under Age Discrimination; Equal Employment Opportunity. Affirmed in part and reversed in part. Civil Rights — Employment Discrimination — Age Discrimination — Disparate Treatment — Evidence. The finder of fact in an action for wrongful discharge in which age discrimination based on disparate treatment is alleged may consider whether the transfer of the plaintiff’s work to another job classification evidences age discrimination where the members of the two job classifications perform similar duties but the average age of persons with the job classification to which the plaintiff’s work was transferred is significantly less than the average age of persons with the job classification from which the work was transferred. Law Offices of John W. Mason, P.C. (by John W. Mason), for the plaintiff. Fox & Grove, Chartered (by Kalvin M. Grove and Steven L. Gillman), and Finkel, Whiteñeld & Selik (by Robert J. Finkel), for the defendants. Before: Holbrook, Jr., P.J., and Brennan and Cavanagh, JJ. Per Curiam. Plaintiff brought this wrongful discharge suit against his former employers, Automobile Club of Michigan and the Auto Club Insurance Association (which hereinafter will be treated as a single defendant). Following trial, the jury returned a verdict in favor of plaintiff on claims of breach of contract, age discrimination, and mental distress, for a total award of $300,500. The trial court granted defendant’s motion for remittitur and reduced the award by $80,000. Defendant appeals as of right from the jury verdict. Plaintiff cross appeals as of right from the order of remittitur. Plaintiff worked for defendant for thirty-one years, from 1952 until 1983, as a commissioned sales representative (csr) before he was terminated for failing to meet defendant’s sales quota. He then worked for defendant for approximately IV2 months as a member advisor before taking an early retirement. Plaintiff was fifty-seven years old when he retired. In 1951, Park Zickel, the general manager of defendant at that time, approached plaintiff and offered him a job as a csr. Zickel told plaintiff that in the thirty-six years that Zickel had worked for defendant, he had been paid a seven-percent commission on all new sales of auto insurance and a seven-percent commission on all renewals. Zickel never said anything about reserving the right to change the method of compensation, and plaintiff never expected the method to be changed. Zickel also said that the only people that were ever fired were those who withheld company funds. When plaintiff was hired by defendant, the sales manual characterized the csr position as a "well-paid career position.” It also stated that "though the major portion of [a csr’s] income comes from the creditable handling of existing accounts, he is expected to prospect and solicit new business and establish and maintain an acceptable ratio of new business to the existing business he is assigned.” There was no express statement that a csr was terminable at will. Plaintiff started working for defendant in 1952. He immediately began to sell automobile insurance and memberships to the Auto Club, and his "book of business” began to grow. A book of business is the list of customers to whom a csr sold an insurance policy. Plaintiff received a seven-percent commission on the original sale of an automobile insurance policy and seven percent each time it was renewed. As plaintiff’s book of business grew, so did his income. In 1978, defendant instituted a new system of pay for the csrs. Instead of paying on a commission basis, defendant paid csrs a fixed sum of money for each sale, or "unit compensation.” Plaintiffs income began to decline. In 1980, defendant established a new category of workers, called member advisors, who performed many of the same functions as the csrs. Like csrs, member advisors sold automobile insurance, other insurance, and memberships. Member advisors serviced their customers in the same manner as did csrs. Member advisors were different from csrs in that they worked regular hours, were paid a salary, were not required to recruit new customers, and were not subject to a production quota. In September 1981, defendant implemented a new minimum production system that required selling specified numbers of new memberships and life insurance policies each month. Failure to meet the new quota resulted in an oral warning, a written warning, probation, and then termination. Plaintiff did not meet the quota in the final months of 1981. Plaintiff then expressed his interest in the new position of general agent developed by defendant. The general agent position would have permitted plaintiff to establish his own office and to service his own book of business without being subject to the quota system. However, plaintiff eventually turned down the general agent position because of start-up costs, defendant’s requirement that he waive any legal action against defendant, his uncertainty of what the job responsibilities were, and his lack of trust of defendant. After plaintiff turned down the general agent position, he received a letter terminating his employment as a csr, effective January 15, 1983. The letter also offered him a job as a member advisor n at a salary of $26,000, which was approximately $6,000 less than his 1982 salary as a csr. Despite his reservations about the job, plaintiff accepted the member advisor position, pending notice of the details of defendant’s early retirement program. Plaintiff received information of the retirement plan in January 1983, and he chose to retire. In his complaint, plaintiff alleged breach of contract, age discrimination, unjust enrichment, promissory estoppel, and conversion. The jury awarded plaintiff $300,000 damages for loss of income due to age discrimination and breach of contract, and $500 for mental distress. i The dispositive issue on appeal is whether the trial court erred in denying defendant’s motion for judgment notwithstanding the verdict with respect to plaintiff’s claim of age discrimination. Defendant argues that plaintiff failed to establish as a matter of law the disparate treatment theory of age discrimination. Defendant maintains that the production standards were applied equally to all csrs. Defendant claims that it is inappropriate to prove disparate treatment by comparing the csrs to the member advisors, because of the differences in the responsibilities of the positions. Plaintiff, on the other hand, states that a reasonable jury could conclude that he was discharged because of his age. We agree with plaintiff. We examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the plaintiff when reviewing a trial court’s failure to grant a defendant’s motion for judgment notwithstanding the verdict. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986); Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186; 466 NW2d 717 (1991). If reasonable minds could differ concerning whether the plaintiff has met his burden of proof, a judgment notwithstanding the verdict is inappropriate. Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 179; 475 NW2d 854 (1991). We will not disturb a trial court’s decision on a motion for judgment notwithstanding the verdict absent a clear abuse of discretion. Michigan Microtech, supra, pp 186-187. A prima facie case of age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., can be made by showing either intentional discrimination or disparate treatment. Schipani v Ford Motor Co, 102 Mich App 606, 617; 302 NW2d 307 (1981). Because plaintiff attempted at trial to prove disparate treatment, he was required to show that he was a member of a protected class and that he was treated differently than persons of a different class for the same or similar conduct. Reisman v Wayne State University Regents, 188 Mich App 526, 538; 470 NW2d 678 (1991). A prima facie case of age discrimination can also be made by showing that plaintiff (1) was a member of the protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by a younger person. Ewers v Stroh Brewery Co, 178 Mich App 371, 380; 443 NW2d 504 (1989). Because defendant failed to claim that it was making cutbacks because of economic necessity, plaintiff did not have a greater burden of proof. Compare Matras, supra, p 684. Viewing the evidence in a light most favorable to plaintiff, we find that he established a prima facie case of age discrimination under the Reisman standard. Plaintiff was a member of a protected class, because he was fifty-seven years old when he was discharged. The parties differ regarding whether there was sufficient evidence that plaintiff was treated differently than persons of a different class who were engaged in the same or similar conduct. Defendant argues that plaintiff was treated no differently than other csrs. Although this might be true, we believe that the member advisors were the comparable group of employees for age discrimination purposes. First, the average age of the member advisors was more than twelve years less than the average age of the csrs. Second, the csrs were treated differently than the member advisors for the same or similar conduct. Although both groups sold insurance and memberships and serviced customers, and the member advisors typically performed the duties of the csrs when the csrs left the company, including handling the books of business of the former csrs, the member advisors, unlike the csrs, worked regular hours, were paid a salary, and were not required to recruit new customers. Nevertheless, from the similarity of job responsibilities, it may be legitimately inferred that the member advisors and the csrs were comparable groups for determining whether the csrs were treated differently for the same or similar conduct. Evidence was presented at trial that showed that the csrs were treated differently than the member advisors. Even though the member advisors and the csrs both sold insurance, the csrs were subject to a quota and were demoted to member advisor n positions if they failed to meet it. We believe that reasonable minds could differ concerning whether the plaintiff met his burden of proof. Alternatively, plaintiff met his burden of proof under the Ewers standard of a prima facie case of age discrimination. Plaintiff was a member of a protected class. Plaintiff was discharged (see Issue iv). A reasonable juror could conclude that plaintiff was qualified for the position, having built a considerable book of business. Plaintiff was then replaced by a younger person working as a member advisor. Age might not have been the main reason for plaintiff’s discharge, but a reasonable jury could find that age was one of the reasons that made a difference in defendant’s determining whether to discharge plaintiff. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for judgment notwithstanding the verdict. ii Because we find that sufficient evidence was presented at trial to justify sending the age discrimination claim to the jury, we need not address the contract issues raised by defendant. The jury awarded plaintiff damages for loss of income on the basis of age discrimination and breach of contract. Even if we were to find merit in defendant’s arguments concerning the breach of contract claim, the age discrimination claim would still support the jury’s award of damages for loss of income. iii We next consider whether the trial court improperly admitted the testimony of four former employees concerning the circumstances of how each individual was hired by defendant. Defendant moved to exclude the testimony of these four individuals, contending that any testimony about oral statements made to them at their own times of hire was irrelevant because it did not shed light on plaintiffs hiring experience. The trial court summarily denied defendant’s motion. Defendant argues on appeal that this testimony was prejudicial, confusing, and misleading regarding the issue whether a contract existed between plaintiff and defendant. We disagree. The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Reisman, supra, p 543; Brunson v E & L Transport Co, 177 Mich App 95, 104; 441 NW2d 48 (1989). Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible. MRE 402. Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Dunn v Nundkumar, 186 Mich App 51, 55; 463 NW2d 435 (1990). In this case, the testimony of the other employees concerning the promises made to them when they were hired, if substantially similar to what plaintiff testified he was promised, would have the tendency to corroborate plaintiffs testimony. See Schippers v SPX Corp, 186 Mich App 595, 597; 465 NW2d 34 (1990). Any danger of prejudice in admitting this evidence, because what was promised to these witnesses was not necessarily promised to plaintiff, did not substantially outweigh its probative value. Defense counsel had the opportunity to highlight the differences between plaintiffs hiring experience and those of the other employees by pointing out that they were hired at different times by different people. Thus, the trial court did not abuse its discretion in admitting the testimony of the four former employees. IV Defendant further contends that the trial court erred in denying its motion for judgment notwithstanding the verdict with respect to plaintiffs claim of constructive discharge. Defendant argues that plaintiff submitted insufficient evidence to establish that defendant made plaintiffs working conditions so intolerable that he was forced to leave the job. Plaintiff responds that the issue was a proper question for the jury. Plaintiff states that the fact that defendant offered and he accepted a lesser job does not preclude the jury from finding constructive discharge. We utilize the standard of review set forth in Issue i. In Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985), this Court ruled that constructive discharge may be found where working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. A finding of constructive discharge depends on the facts of each case. Id. In Jenkins, the plaintiff was told to either accept a new position or resign. The new position not only paid the same salary as plaintiffs former job, but also included a car and an expense account. Nevertheless, this Court held that a reasonable factfinder in that case could find constructive discharge because the new job was not the substantial equivalent of the position from which the plaintiff was discharged. The new position was a demotion and the job responsibilities were severely reduced. In the present case, plaintiff was terminated from his position as a csr and then offered a job as a member advisor. Viewing the evidence again most favorably toward plaintiff, we note that accepting the member advisor position required plaintiff to relinquish his book of business and receive $6,000 less than what he earned the previous year. The member advisor position carried less status than the csr position. Under these circumstances, a reasonable jury could find that plaintiff was constructively discharged. Moreover, the fact that plaintiff initially accepted the member advisor position for IV2 months does not preclude him from claiming constructive discharge, especially because he accepted the position on a temporary basis so as to take advantage of the early retirement program. After receiving details of the program, he decided to retire. Consequently, the trial court did not abuse its discretion in denying defendant’s motion for judgment notwithstanding the verdict against plaintiff’s claim of constructive discharge. v Turning to the issue before us on cross appeal, we next consider whether the trial court abused its discretion in granting defendant’s motion for remittitur. The trial court reduced the jury verdict by $80,000 and ruled that the jury’s verdict did not reflect plaintiff’s failure to mitigate his damages. The trial court determined that plaintiff could have earned wages over the eight-year period before he turned sixty-five years old, and thereby reduced the jury verdict $10,000 for each year. MCR 2.611(E)(1) authorizes a trial court to reduce a jury verdict when the amount awarded is greater than the highest amount of damages that the evidence at trial would support. A trial court’s decision on a motion for remittitur is reviewed for an abuse of discretion. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989); Byrne, supra, p 183. The jury awarded plaintiff $300,000 in lost wages. Unlike the trial court, we find that this amount is not greater than the highest amount of damages that the evidence at trial supported. Plaintiff’s expert testified that plaintiff suffered damages in the amount of $696,056. Defendant’s expert calculated that plaintiff could have earned $353,188 if he had worked until he reached sixty-five years of age. Although it is undisputed that plaintiff did not seek employment after leaving defendant’s employ, the question whether defendant carried its burden of proving plaintiff was unreasonable in not seeking other employment was within the province of the jury. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendant argues that plaintiff should have accepted either the member advisor ii position or the general agent position to mitigate his damages. However, the member advisor position could reasonably be considered a demotion (see Issue iv). Mo