James P. Ostrowski v. Atlantic Mutual Insurance Companies
968 F.2d 171, 1992 U.S. App. LEXIS 14224, 59 Empl. Prac. Dec. (CCH) 41,613 (1992)
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Rule of Law:
In a mixed-motive employment discrimination case under the ADEA, if a plaintiff presents sufficient evidence that a forbidden animus was a 'motivating factor' in an adverse employment decision, the plaintiff is entitled to a jury instruction that shifts the burden of proof to the employer to show it would have made the same decision even without the discriminatory factor.
Facts:
- Atlantic Mutual Insurance Companies hired James P. Ostrowski as claims manager in 1981, and he consistently received excellent performance reviews from his supervisor, Richard Pennington, through 1986.
- In 1987, Ostrowski hired Dominic Tringali, an attorney in his 60s. Pennington criticized the hire, stating Tringali 'should have retired years ago.'
- In the summer of 1988, Ostrowski hired Lionel DaCosta, also in his 60s. Pennington again reacted negatively, stating DaCosta 'should have stayed retired' and 'is not Atlantic type material.'
- Shortly thereafter, Pennington told another supervisor, Thomas Silika, and his own superior, Klaus Dorfi, that he 'wanted to fire Mr. Ostrowski because of the hiring of Lionel DaCosta and Dominic Tringali,' noting their ages. Dorfi expressed agreement with Pennington's criticism of Ostrowski's hiring practices.
- Starting in 1987, Ostrowski began receiving poor performance reviews from Pennington, which Atlantic attributed to his management style and insubordination.
- Atlantic placed Ostrowski on probation in November 1988 on Pennington's recommendation.
- In February 1989, Ostrowski rated an employee named Erika Krotman, age 64, as 'superior.' Pennington criticized the evaluation, stating, 'Erika is 64 years old.... I can’t see how she can be superior.'
- In April 1989, on Pennington's recommendation and before his probationary period ended, Atlantic fired Ostrowski.
Procedural Posture:
- James P. Ostrowski sued his former employer, Atlantic Mutual Insurance Companies, in the United States District Court for the Southern District of New York.
- Ostrowski alleged retaliation under the Age Discrimination in Employment Act (ADEA).
- The case was tried before a jury.
- The jury returned a verdict in favor of the defendant, Atlantic Mutual.
- The district court entered a final judgment dismissing Ostrowski's claim.
- Ostrowski, as appellant, appealed the judgment to the United States Court of Appeals for the Second Circuit, arguing the district court gave improper jury instructions. Atlantic Mutual was the appellee.
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Issue:
In an ADEA retaliation case, does a district court err by failing to give a 'Price Waterhouse' burden-shifting jury instruction when the plaintiff presents sufficient evidence for a jury to find that a retaliatory animus was a motivating factor in their termination?
Opinions:
Majority - Kearse, J.
Yes. A plaintiff in an ADEA case is entitled to a burden-shifting instruction where the evidence is sufficient to allow a trier of fact to find that both forbidden and permissible motives were involved in the employment decision. The trial court's failure to give such an instruction creates a risk that the jury would mistakenly believe the plaintiff bears the entire burden of proof. Here, Ostrowski presented ample evidence that retaliatory animus was a motivating factor, including direct statements from his supervisor, Pennington, expressing disapproval of hiring older workers and a desire to fire Ostrowski for that specific reason. This evidence, which included corroboration from another manager and agreement from a higher-level executive, was sufficient to allow a jury to find that age-based animus played a motivating part in the decision to terminate him. Therefore, the district court was required to instruct the jury that if it found the forbidden animus was a motivating factor, the burden would shift to Atlantic to prove by a preponderance of the evidence that it would have fired Ostrowski anyway for legitimate reasons.
Analysis:
This decision clarifies the application of the 'Price Waterhouse' mixed-motive framework to ADEA cases tried before a jury. It establishes that the plaintiff's threshold for receiving a burden-shifting instruction can be met with strong circumstantial evidence tied directly to the discriminatory animus, such as statements by decision-makers, and does not require a literal confession of discriminatory intent. The ruling distinguishes the role of the judge, who determines only if there is sufficient evidence to warrant the instruction, from the role of the jury, which weighs the evidence and determines if the plaintiff has actually shown that a forbidden motive existed. This holding strengthens protections for plaintiffs in mixed-motive cases by ensuring juries are properly instructed on complex burden-shifting standards.
