MARTHA C. LIPCHITZ vs. RAYTHEON COMPANY [Note 1]

SPINA, J. Martha C. Lipchitz brought this civil action in 1995 against her employer, Raytheon Company, alleging that she was denied a promotion to the position of corporate medical director (CMD) because of her gender in violation of G. L. c. 151B,s. 4 [Note 2]. The jury returned a verdict for the plaintiff and awarded her $500,000 in compensatory damages, including $30,000 in back pay, $150,000 in front pay, and $320,000 for emotional distress. Raytheon filed several posttrial motions, all of which were denied, except for Raytheon's motion for remittitur [Note 3]. The plaintiff moved for attorney's fees and costs and received an award of $225,000 and $20,681, respectively.

Raytheon appealed, and we granted its application for direct appellate review. Raytheon claims that the jury were improperly instructed that the plaintiff was only required to prove "pretext" rather than "pretext for discrimination," and that it was entitled to an instruction that gender was "the determinative factor" in the promotion decision. We do not adopt Raytheon's argument as to how a jury should be instructed on the question of pretext. We conclude, however, that Raytheon was entitled to an instruc-

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tion that the plaintiff had the burden of proving the elements of discriminatory animus, and that discrimination was "the determinative cause" of the adverse employment decision as we later define that term. We vacate the judgment and remand the case to the Superior Court for a new trial.

We further recommend that in discrimination cases based on indirect evidence, judges abandon the use of jury instructions that rely on the terms "pretext" and "pretext for discrimination," and that are framed in terms of shifting burdens.

1. Background Facts.

In 1975, Lipchitz began working as a physician in the medical department of Raytheon's largest manufacturing plant located in Andover. The department was responsible for performing physical examinations and providing on-site general and emergency medical services for the plant's 5,000 to 7,000 employees. In 1980, Lipchitz was promoted to manager of the Andover plant's medical services department, in which capacity she supervised the plant's medical department and staff. In addition to her regular administrative duties (including, for example, coordinating and monitoring the medical care of individuals receiving workers' compensation, attending meetings, and writing reports), she also took the initiative to study health and safety issues affecting Raytheon's employees, such as substance abuse, and developed teaching modules for plant supervisors on those subjects. At the time of trial in 1997, Lipchitz continued to be employed by Raytheon in this position.

From 1980 until 1993, Lipchitz reported directly to Andover plant managers, and had a "dotted-line" supervisory relationship with the CMD, Stephen Alphas [Note 4]. Throughout those years, Lipchitz received highly favorable written performance reviews, the vehicle by which recommendations for merit increases generally were made. Lipchitz's favorable evaluations resulted in a salary that was at the upper end of the salary grade for her

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position, as well as frequent bonuses and, eventually, stock options [Note 5].

In addition to the performance evaluations, Lipchitz wrote annual or biennial self-evaluations in which she catalogued her contributions and accomplishments, and noted her strong desire to advance into a corporate position. The only corporate position available to a practicing medical doctor was the CMD position, and as the years went by Lipchitz made known her desire to fill that position when Alphas retired. Her performance evaluations noted both her desire for advancement and her capacity for a management position.

In 1988, after he underwent bypass surgery, Alphas continued in the CMD position but his superiors raised with him the question of who would succeed him. In 1989, Alphas hired Harry Azadian as a full-time plant physician. Azadian was a long-time acquaintance and colleague of Alphas and had been working one day a week at Raytheon since 1977. Lipchitz presented evidence to suggest that both the decision to offer Azadian the full-time position and the manner in which he was hired reflected Alphas's expectation that Azadian would be his successor. There was additional evidence to suggest that this view was shared by Azadian.

A job description for the position was written in 1990 and required that the CMD be -[b]oard [c]ertif[ied] in an appropriate area of specialization." Azadian was board certified as a general surgeon; Lipchitz was not board certified. Alphas, the outgoing CMD, had not been board certified.

Raytheon argued that its reason for passing over Lipchitz in favor of Azadian was primarily difficulties over the years between Lipchitz and Alphas, the CMD, as well as between her

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and various managers within the Andover plant [Note 6]. Lipchitz had pushed hard for certain opportunities she deemed necessary for her professional advancement, but the response she received from Andover plant managers was negative and, on occasion, patronizing [Note 7]. At the same time, she tended to rebuff requests from Alphas and other managers to take on additional responsibilities, requests that might have been viewed by them as ways to earn opportunities for advancement. Her superiors perceived her as unwilling to take on extra work without asking for additional compensation, and unwilling to be a "team player [Note 8]." These perceptions were reflected in notations made on documents relevant to, and contemporaneous with, the promotion decision. Testimony regarding the difficulties with her superiors was corroborated by Lipchitz's desk diary in which she had recorded her disagreements with various managers and supervisors over the years. These difficulties were not mentioned in Lipchitz's annual reviews or in her self-evaluations.

Alphas retired in January, 1994, and Azadian was promoted shortly after. Rather than receive a full promotion to CMD and a salary increase to that position's salary grade, Azadian was appointed the acting CMD and his salary remained unchanged. The vice-president of human resources testified that Azadian was appointed to this provisional position because Alphas's retirement was the opportunity he had been awaiting to consider reorganizing the medical department or outsourcing medical services. It was possible that such a change would eliminate the CMD position. Testimony revealed, however, that as acting CMD, Azadian had all the authority of the CMD, and he

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expressed his belief that his title and salary had been on hold because of the litigation [Note 9].

2. Sufficiency of the Evidence on Liability.

After the close of the plaintiffs evidence, Raytheon moved for a directed verdict. On appeal, it argues that there was insufficient evidence to support a finding of pretext at the third stage of the now-familiar order of proof originally set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by us in Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130 (1976).

The plaintiff presented sufficient evidence from which a reasonable jury could find that at least one of Raytheon's reasons was false and from this it properly could have inferred that she was not promoted because of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000). The reasons Raytheon presented for its decision were Lipchitz's lack of board certification, and the personal and work style difficulties she had with members of management. However, where Lipchitz's performance evaluations included comments suggesting that she was qualified to hold a management position, the jury could have found that the question of board certification was not the reason Lipchitz had not been promoted, and in other circumstances, the lack of board certification might have been accommodated [Note 10]. In addition, the jury could have credited Lipchitz's contention that the difficulties she had with Alphas, the CMD, and her Andover managers were not the result of her personality and work style and therefore, were the result of gender bias. If the jury found Lipchitz to be a credible witness, and discredited the testimony of Raytheon's witnesses, the jury could reasonably have

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believed that, had she been a man, her strict adherence to her principles and the official lines of command and her determination about advancing her career, might have been viewed with admiration rather than resentment.

"The ultimate issue of discrimination, raised by the [parties'] conflicting evidence as to the defendant['s] motive, is not for a court to decide on the basis of [briefs and transcripts], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses." Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 (1995). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998). Viewing the evidence in its light most favorable to the plaintiff, the evidence was sufficient to support a finding that at least one of the reasons advanced by Raytheon was false, from which the jury could have inferred that the plaintiff was denied a promotion because of her gender. See Abramian v. President & Fellows of Harvard College, supra at 118. The motion for a directed verdict was properly denied.

We do not address Raytheon's argument that the verdict was against the weight of the evidence because we are remanding for a new trial due to errors in the jury instructions.

3. Jury Instructions.

(a) Pretext. Raytheon submitted a written request for an instruction that Lipchitz had the burden of proving that Raytheon's reasons for not promoting her were a "pretext for discrimination." It renewed the request after the judge charged the jury and before the jury retired to deliberate. See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). The issue was preserved for appellate review. Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 678-679 (1980).

Raytheon argues that the judge's failure to give its requested instruction ("pretext for discrimination") and to use instead the term "pretext," without more, lowered Lipchitz's burden in the third stage. [Note 11]" Raytheon additionally argues that the jury's inability to reach a consensus on question 4, one of the special

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questions that the judge asked the jury to answer, is evidence of this flaw in the instructions [Note 12]. Lipchitz counters that because Massachusetts is a "pretext only" jurisdiction, Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 443, Raytheon was not entitled to an instruction that she prove "pretext for discrimination" because it would have been an incorrect statement of the law.

The phrase "pretext for discrimination" implies that the plaintiff must prove not only that a reason given by the employer

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for the adverse decision was false, but that the reason was given to cover a discriminatory animus. Our decisions do not require this. See Abramian v. President & Fellows of Harvard College, supra at 118. Cf. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). If the employee were able to prove by direct evidence that discriminatory animus motivated the decision, she would not have to rely on the indirect method of proving animus by disproving at least one of the employer's articulated, nondiscriminatory reasons. Compare Rynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655 (2000), with Buckley Nursing Home, Inc. v. Massachusetts Comm'n Against Discrimination, 20 Mass. App. Ct. 172(1985).

In an indirect evidence case, if the fact finder is persuaded that one or more of the employer's reasons is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive or state of mind. See Riffelmacher v. Police Comm'rs of Springfield, 27 Mass. App. Ct. 159, 165 (1989). Permitting, but not requiring the fact finder to draw the inference strikes the proper balance by holding the plaintiff to her ultimate burden without requiring her to produce direct evidence of discriminatory animus, a form of evidence that, we recognize, rarely exists. See Wheelock College v. Massachusetts Comm'n Against Discrimination, supra at 137. Cf. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 615-616 (1983). That inference, combined with the evidence adduced to meet the employee's burden of proof under the first stage of McDonnell Douglas, permits the fact finder to conclude that the employee has satisfied her ultimate burden of proving that the decision was made "because of" the unlawful discrimination as G. L. c. 151B, s. 4(l), requires [Note 13]. See Abramian v. President & Fellows of Harvard College, supra at 118.

(b) Discriminatory animus. Although a "pretext for discrimination" instruction was not required, we agree that the instruc-

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tions on the issue of pretext, given without the benefit of any instructions on discriminatory animus, were, for the reasons that follow, erroneous. (The special verdict form the jury were asked to complete also reflected the error.)

The statute sets out four elements: membership in a protected class, harm, discriminatory animus, and causation. See note 13, supra. See also Dahill v. Police Dep't of Boston, ante 233, 243 (2001) (membership in protected class and causation); Abramian v. President & Fellows of Harvard College, supra at 117 (animus); MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996) (harm). It was undisputed that Lipchitz was a member of a protected class because she was a woman, and was harmed by an employment decision when Raytheon bypassed her for promotion. We therefore turn our attention to the element of discriminatory animus.

As we have said, in an indirect evidence case, we permit the fact finder to infer discriminatory animus (and causation) from proof that the employer offered a false reason for the adverse employment decision. Permitting the fact finder to infer discriminatory animus from proof that the employer has advanced a false reason does not, however, eliminate the plaintiff's burden to prove this essential element. See School Comm. of Boston v. Labor Relations Comm'n, 40 Mass. App. Ct. 327, 334 (1996). Stated differently, the "indirect evidence" moniker derives from the type of evidence (pretext) that may establish one or both statutory elements (discriminatory animus and causation) [Note 14]. Cf. Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299-300 (1991). Pretext does not thereby become the element.

Here, the entire import of the instruction on Lipchitz's burden

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to establish liability was whether she had proved "pretext," not whether she had proved that Raytheon had refused to promote her "because of . . . [her] sex." G. L. c. 15113, s. 4 (1). See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986). Cf. Carter v. Comm'r of Correction, 43 Mass. App. Ct. 212, 226 (1997). The instruction transformed "pretext" into an essential element of the plaintiff's case. The error was compounded by the additional instruction that if Lipchitz established that the reasons given by Raytheon were not its "real reason", she had established Raytheon's liability and the jury were to move on to the question of assessing damages [Note 15]. See Abramian v. President & Fellows of Harvard College, supra at 117-118. The only "instruction" the jury received on discriminatory animus was given in connection with special question 4, an advisory question, which the judge described to the jury as having "no effect" on the verdict [Note 16].

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The judge should have instructed that Lipchitz was required to prove that Raytheon acted with a discriminatory intent, motive or state of mind. As we said in Abramian v. President & Fellows of Harvard College, supra, decided two years after the trial in this case, juries should be instructed that this element of proof may be satisfied by circumstantial evidence, such as the inference of discriminatory animus that may be drawn from proof that one or more of the reasons advanced by the employer is false.

(c) Causation. Raytheon also requested an instruction, that Lipchitz had to persuade the jury that her gender was "the determining factor in the decision not to promote her to Acting CMD," and that "but for" a motive to discriminate . . . she would have been promoted" (emphasis added). Raytheon argues that without this instruction, the jury were ill-equipped to weigh the factors involved in the promotion decision if they were persuaded that some of its reasons were legitimate and some were discriminatory. Lipchitz contends that Raytheon was not entitled to this instruction because it is only applicable in cases in which plaintiffs present strong, direct evidence of discrimination and further, that if the instruction was necessary, that Raytheon should bear the burden of proof. See Wynn & Wynn, PC. v. Massachusetts Comm'n Against Discrimination, supra at 670. This issue was preserved for review. See Flood v. Southland Corp., 416 Mass. 62, 66 (1993). We agree with Raytheon that in indirect evidence cases the plaintiff must prove that the defendant's discriminatory animus was the determinative cause, which we describe below, in bringing about the adverse decision.

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Under the plain language of G. L. c. 151B, s. 4, liability attaches when an adverse employment decision is made "because of" discrimination [Note 17]. We have never had occasion to decide whether jurors must be instructed on the statute's causal link. Such a requirement is, however, implicit in our decisions. See, e.g., Dahill v. Police Dep't of Boston, supra (plaintiff must prove causation); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 294 (1997) (ruling for defendant was proper where judge found that retaliation was not "a determinative factor" in discharge); MacCormack v. Boston Edison Co., supra at 662 n.11 (evidence would not have been sufficient to meet "but for" burden of causation); Brunner v. Stone & Webster Eng'g Corp., 413 Mass. 698, 705 (1992) ("but for" causation is "essential element of [plaintiff's] case"); DiBenedetto v. Commonwealth, 398 Mass. 395, 400 (1986), cert. denied, 479 U.S. 1092 (1987) (discrimination was "not a causative factor" in hiring decision); Trustees of Forbes Library v. Labor Relations Comm'n, 384 Mass. 559, 562-563 (1981) (retaliation must have been "but for cause") [Note 18]; Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 226-227 (1978) (sex must have been "a determinative cause"). See also Buckley Nursing Home, Inc. v. Massachusetts Comm'n Against Discrimination, supra at 179. Cf. Drinkwater v. School Comm. of Boston, 406 Mass. 756, 762 (1990) (upholding race-conscious hiring plan against charge of reverse discrimination in part

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because "race was only a factor" officials were to consider [emphasis added]). In addition, we have approved jury instructions that have included language describing this causal link. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), supra at 12 n.18 ("plaintiff has the burden to prove . . . that but for plaintiff's handicap, the defendant would not have terminated the plaintiff"); DiBenedetto v. Commonwealth, supra at 401 jury instructed that they must be convinced that "but for" discrimination, plaintiff would have been hired) [Note 19].

The failure to alert the jury to the requirement that Lipchitz prove a causal link between Raytheon's alleged discriminatory animus and its decision to not promote her, was error [Note 20]. It was prejudicial because here, the evidence suggested several reasons for Raytheon's decision to pass over Lipchitz, some of which the jury could have found credible, some of which the jury might have found not credible.

We note, however, that to meet her burden of proof that discrimination was the determinative cause of the promotion decision, Lipchitz was not required to disprove every reason articulated by the defendant or suggested in the evidence. See

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Dartt v. Browning-Ferris Indus., Inc. (Mass.), supra at 9. She could meet her burden by persuading the fact finder that it was more likely than not that at least one reason was false. But see Wheelock College v. Massachusetts Comm'n Against Discrimination, supra at 137 (remanding for rehearing because commissioner had only addressed three of the four reasons offered by defendant). From such proof the fact finder could infer that Raytheon's discriminatory animus was the determinative cause of the adverse employment decision.

The plaintiff is correct that reversible error will not be found merely by "consideration of [a] fragment [of an instruction] which may be open to criticism." See Haven v. Brimfield, 345 Mass. 529, 533 (1963). Reversible error may lie, however, where the error of a "fragment" reflects the error of the instructions read as a whole. We are presented here with a jury charge that failed to instruct the jury adequately on two necessary elements under the statute. The error was compounded by the judge's incorrect instruction that, if Lipchitz proved that Raytheon had lied, she had prevailed in the litigation. See Abramian v. President & Fellows of Harvard College, supra at 117-118. Considered as a whole, Lockwood v. Boston Elevated Ry., 200 Mass. 537, 544 (1909), the charge failed to "clearly, adequately, and correctly explain[] to the jury the principles that ought to guide and control their action." Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 678-679 (1980), and cases cited. The failure to instruct on these elements was prejudicial and the case must be retried. See Tuttle v. McGeeney, 344 Mass. 200, 207-208 (1962).

4. Issues on Remand.

We take this opportunity to discuss issues that are likely to arise at retrial [Note 21].

(a) Jury instructions. Jury instructions drawn directly from the order of proof originally described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), have been problematic. Decided in the context of the Federal anti-discrimination law, McDonnell Douglas represented an enormous step forward in employment discrimination law by providing plaintiffs who

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lacked "smoking gun" evidence a method to present - and prove - their cases, and we have used its order of proof in analyzing cases brought under our own anti-discrimination statute since 1976. See Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 138 (1976). However, this "analytical framework" was established in the context of summary judgment "to give judges a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case." Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979). It "was not written as a prospective jury charge," id., and is ill-suited to the task: By the time of trial, a plaintiff will have discovered the employer's reasons for the adverse action, and may present them in his or her case-in-chief, together with evidence that one or more of the reasons is false.

We see no reason to burden the jury with terms like "mixed-motive" and "pretext" or with rules regarding shifting burdens, all of which "have taken on lives of their own, independent of their connection to the underlying theories of liability that gave them birth." See Miller v. Cigna Corp., 47 F.3d 586, 599 (3d Cir. 1995) (Greenberg, J., concurring in part). See also Model Civil Jury Instructions for the District Courts of the Ninth Circuit s. 11.5.1 (1997 ed.); Model Civil Jury Instructions for the District Courts of the Eighth Circuit s. 5.01 (1999 ed.). The burden shifting rules involve questions of law more appropriately left to the trial judge to decide. See, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52-53 (2d Cir. 1998). We encourage trial judges to craft instructions that will focus the jury's attention on the ultimate issues of harm, discriminatory animus and causation in accordance with this opinion.

(b) Admissibility of "statistical" evidence in claims of individual disparate treatment. Raytheon argues that the plaintiff's evidence regarding the gender composition at its highest ranks was statistical evidence that was both inadmissible and irrelevant. It argues that the evidence lacked the necessary foundation of labor market statistics reflecting the gender composition of those seeking such positions, and that it was irrelevant because the evidence related to non-medical positions.

The evidence indicated that until 1993, there were no women

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in the corporate ranks of the company. Such numbers are relevant, and may be properly introduced in a disparate treatment case, see Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 769-770 (1986), because to the extent they suggest that the highest ranks of an employer's organization are closed to members of a protected class, they may support an inference that the particular decision was tainted by an unlawful bias. See Buckley Nursing Home, Inc. v. Massachusetts Comm'n Against Discrimination, 20 Mass. App. Ct. 172, 179 (1985) (aberrant hiring practice "supplemented by the statistical proof" supported conclusion that explanation for failing to hire plaintiff "was only a pretext for unlawful discrimination"). A defendant is free to rebut the evidence, as Raytheon did here, by introducing its own labor market statistics.

The judgment is reversed, the verdict set aside, and the case is remanded to the Superior Court for a new trial.

So ordered.