ROBERT S. WHALEN vs. NYNEX INFORMATION RESOURCES COMPANY.

NOLAN, J. The plaintiff appealed from a judgment of a Superior Court judge dismissing his complaint and entering judgment for the defendant on the plaintiff's claim of handicap discrimination in employment. The plaintiff claims on appeal that the judge erred by granting the defendant's motion

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to strike his demand for a trial by jury. The plaintiff argues also that the judge erred in concluding that he failed to establish a prima facie case of handicap discrimination.

The plaintiff commenced this action in the Superior Court alleging that the defendant had refused to hire him for the position of premise sales representative on the basis of his handicap. [Note 1] The judge granted summary judgment for the defendant on two of the plaintiff's three counts, allowing the plaintiff's claim under G. L. c. 151B, Section 4 (16) (1992 ed.), to remain. [Note 2] The judge also granted the defendant's motion to strike the plaintiff's demand for a jury trial. After a two-day bench trial, the judge determined that the plaintiff had failed to establish a prima facie case of employment discrimination on the basis of a handicap and entered judgment for the defendant. The plaintiff then filed a timely notice of appeal in the Appeals Court. The Appeals Court affirmed the decision of the Superior Court after concluding that the plaintiff did not have a right to a trial by jury for a handicap discrimination claim filed pursuant to G. L. c. 151B. 36 Mass. App. Ct. 148 (1994). We granted the plaintiff's application for further

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appellate review. Although we conclude that a trial by jury is a matter of State constitutional right in cases of employment discrimination on the basis of a handicap, the judge's error in striking the plaintiff's claim for a trial by jury was not prejudicial because the plaintiff failed to produce sufficient evidence to establish a prima facie case of handicap discrimination pursuant to G. L. c. 151B.

1. Right to a trial by jury. The issue whether a plaintiff is entitled to a trial by jury on a claim of handicap discrimination in employment is an issue of first impression in the Commonwealth. We have stated that art. 15 of the Massachusetts Declaration of Rights "preserves the `common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted' in 1780." [Note 3] Department of Revenue v. Jarvenpaa, 404 Mass. 177, 185-186 (1989), quoting Opinion of the Justices, 237 Mass. 591, 596 (1921). In addition, we have concluded that "the Legislature may grant a right to a trial by jury to one who is aggrieved by a violation of a statute." Nei v. Burley, 388 Mass. 307, 312 (1983).

In Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 226 (1994), an opinion released after the opinion of the Appeals Court in this case, we held that art. 15 protects a plaintiff's right to a trial by jury on a claim of employment discrimination based on sex. [Note 4] As in Dalis, a plaintiff's handicap discrimination

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claim filed pursuant to G. L. c. 151B, Section 4 (16), is "analogous to common law actions sounding in both tort and contract." Dalis v. Buyer Advertising, Inc., supra at 223. We conclude, therefore, that the plaintiff is constitutionally entitled to a trial by jury for his claim of employment discrimination based on his handicap. See art. 15; G. L. c. 151B, Section 4 (16).

2. Prima facie case of handicap discrimination. The plaintiff claims that the judge erred in concluding that he failed to establish a prima facie case of handicap discrimination. We disagree.

We have recognized a distinction between employment discrimination cases where the plaintiff alleges "disparate treatment" and those cases involving a claim of "disparate impact." See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993), citing Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 227 (1978). In a "disparate treatment" case, "proof of the employer's discriminatory motive is critical." Cox v. New England Tel. & Tel. Co., supra at 384-385. We have adopted, therefore, a framework of shifting burdens of persuasion and production of evidence that is "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). See Cox v. New England Tel. & Tel. Co., supra. This framework of shifting burdens, however, does not apply in a "disparate impact" case because "discriminatory motive is not an essential part

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of the proof." Smith College v. Massachusetts Commission Against Discrimination, supra.

The present case is one of alleged "disparate treatment." In an employment discrimination case involving "disparate treatment," the plaintiff has the initial burden of establishing a prima facie case. See Blare v. Husky Injection Molding Sys. Boston, Inc., ante 437, 441 (1995); Tate v. Department of Mental Health, ante 356, 361 (1995). To establish a prima facie case of "disparate treatment" on the basis of a handicap, a plaintiff must produce some evidence that: (1) he is handicapped; (2) he is a qualified handicapped person and he applied for a position for which the employer was seeking applicants; (3) the employer rejected the plaintiff for the position in spite of his qualifications; (4) after the employer rejected the plaintiff, the position remained open and the employer continued to seek applicants. See Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 441, 445; Tate v. Department of Mental Health, supra. See also Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 135 & n.5 (1976). The plaintiff does not have to prove each of the four elements to establish a prima facie case in order to avoid a directed verdict. See P.J. Liacos, Massachusetts Evidence Section 5.6.1 (6th ed. 1994); 9 J. Wigmore, Evidence Section 2494 (Chadbourn rev. ed. 1981). Rather, the plaintiff must produce evidence that, if believed, would be sufficient to establish facts that would entitle him to judgment. See P.J. Liacos, supra at 220 (stating that evidence must be such that "jury could reasonably find either way" as to existence of fact); 9 J. Wigmore, supra.

A "qualified handicapped person" is one who "is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap." G. L. c. 151B, Section 1 (16). See Cox v. New England Tel. & Tel. Co., supra at 381-384. The issue on further appellate review is whether the plaintiff offered sufficient evidence that he was a qualified handicapped person. If he did, the case should be remanded for a jury trial. If he did not,

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despite the judge's erroneous ruling on the jury trial issue, there is no need to remand this matter to the Superior Court for trial. We conclude that the evidence was insufficient on the issue whether the plaintiff was a qualified handicapped person.

The defendant used a three-part testing process to screen applicants for the position of premise sales representative. [Note 5] The defendant considered hiring only those applicants who had passed all three tests. The third test replicates situations that confront premise sales representatives. The test measures skills such as oral communication skills, factfinding, quality of reasoning, and problem-solving ability. The evidence was that the test was a valid predictor of success on the job. The plaintiff failed the third test. [Note 6] Thus, the plaintiff's evidence on the issue of qualified handicapped person was insufficient to submit the case to the jury. The judge's error in striking the plaintiff's demand for a jury trial was not prejudicial because the evidence was insufficient to establish a prima facie case of handicap discrimination.

Judgment affirmed.