source: Caselaw Access Project

author: BLUMENFELD, Senior District Judge.

license: Public Domain

text:
    Roland NORDQUIST v. UDDEHOLM CORPORATION.
    Civ. No. H-83-847 (MJB).
    United States District Court, D. Connecticut.
    Aug. 15, 1985.

      Gregg D. Adler, Kestell, Pogue & Gould, Hartford, Conn., for plaintiff.
    Albert Zakarian, Felix J. Springer, Day, Berry & Howard, Hartford, Conn., Robert S. Fischler, Shearman & Sterling, New York City, for defendant.
   RULING ON DEFENDANT’S MOTION FOR JUDGMENT IN ACCORDANCE WITH ITS MOTION FOR A DIRECTED VERDICT AND PLAINTIFF’S MOTION FOR RECONSIDERATION OF THIS COURT’S DECISION TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANT ON THE ISSUE OF WILLFULNESS

BLUMENFELD, Senior District Judge.

This case, in which the plaintiff claims that he was discharged by the defendant Uddeholm Corporation because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, was tried before a jury on March 19 and 20, 1985. At the close of the plaintiff’s case, on March 20, 1985, the defendant moved for a directed verdict. This court denied the motion for a directed verdict with respect to the underlying claim of age discrimination, but explicitly stated that an ultimate decision on that point by the court would be reserved until the jury first had an opportunity to pass on the question. Following that ruling the defendant rested its case without calling any witnesses. The defendant then made a motion for a directed verdict with respect to the issue of willfulness, which this court granted. Following summations and the court’s charge, the case was submitted to the jury on March 20, 1985. On March 22, 1985, the court discharged the jury because it had been unable to reach a unanimous verdict.

The court specifically indicated that it would consider the defendant’s motion for a directed verdict again after receiving the trial transcript. On March 29, 1985, the defendant formally renewed its motion for a directed verdict, and on April 1, 1985 the plaintiff moved that this court reconsider its decision to direct a verdict against the plaintiff with respect to the question of willfulness. These are the motions presently before the court.

FACTS

The plaintiff, Roland Nordquist, was employed by the defendant, Uddeholm Corporation, a steel company headquartered in Totowa, New Jersey, in various sales management positions from June 13, 1965 until October 14, 1981, when he was discharged. At the time of his discharge Mr. Nordquist was 58 years old and had been with the company for nearly 17 years. The individual who recommended Mr. Nordquist’s discharge, Mr. Steve Pandolfo, was about 33 years old at the time of the discharge and had been Mr. Nordquist’s supervisor for about one-and-a-half years pri- or to the discharge. Mr. Pandolfo did not testify at the trial.

Mr. Nordquist’s position when he started with Uddeholm was Regional Manager of Tool Steel, working out of Chicago. After a little less than three years Mr. Nordquist was promoted to the position of District Manager for New England. He served in that position from April 1968 to October 1979. His duties as District Manager included the daily management of the operation of Uddeholm’s South Windsor Branch, the sale of some of Uddeholm’s accounts in New England, and the management of three outside salesmen who worked out of the branch. Mr. Nordquist testified that during his tenure as District Manager of Uddeholm’s New England (or South Windsor) branch, the sales volume went from $578,000 in 1969 to almost $2,000,000 in 1979. He also testified that during this period the branch went from losing close to $100,000 a year to making a profit of nearly $160,000. Furthermore, Mr. Nordquist testified that during the time he served as New England District Manager, he personally developed virtually all of Uddeholm’s major accounts in the New England area.

During the fall of 1979, Mr. Nordquist’s position with Uddeholm changed when he was appointed “National Accounts Manager and Training Advisor.” In this new position, Mr. Nordquist was to concentrate on the larger national accounts, develop distributor accounts, and take over responsibility for training new sales people. As National Accounts Manager and Training Advisor, Mr. Nordquist had no managerial responsibility for any outside salesmen.

In 1980, Uddeholm, like other steel companies, faced a difficult economic and competitive climate. Sales and profits were down and plant closings, layoffs, and terminations were commonplace. In an attempt to improve its situation, in 1980 Uddeholm hired a consulting firm, McKinsey & Company, Inc., to analyze its business. In November 1980, McKinsey issued a report to Uddeholm recommending that certain organizational changes be made.

Specifically, McKinsey recommended that Uddeholm reorganize its branch system and implement a regionalized selling system. The branch system involved 25 branches throughout the country, each one a separate profit and loss center with its own manager and sales force. McKinsey recommended that three geographic regions (East, Midwest, and West) be created and that each have one central branch and one manager responsible for the profit and loss of the entire region. As part of the regionalization, McKinsey recommended that every salesman be assigned accounts in one region exclusively. McKinsey also recommended that Uddeholm focus on smaller accounts that it could serve profitably and move away from the larger, more price-sensitive accounts that Mr. Nordquist was handling.

In early 1981, Uddeholm implemented McKinsey’s recommendations. It closed down many local branches and eliminated many jobs. Salesmen who remained were assigned to one region only. Contemporaneous with this reorganization the 18 accounts that Mr. Nordquist was handling in the Midwest (Chicago, Detroit and Cleveland) were assigned or transferred to the new Midwest Regional Manager, Dave Ryder. Mr. Ryder had been hired by Uddeholm on May 6, 1981 and was 33 years old at the time he received the accounts from Mr. Nordquist. The accounts Mr. Nordquist was told to transfer to Mr. Ryder amounted to about 40% of Mr. Nordquist’s work at the time.

After the transfer of his Midwest accounts, Mr. Nordquist was assigned exclusively to the East region where he lived and where the majority of his remaining accounts were located. Although after the transfer of the Midwest accounts he was selling exclusively in the East region, plaintiff’s title, National Accounts Manager and Training Advisor, did not change.

Some time between January and June of 1981, after Mr. Nordquist’s Midwest accounts were transferred to Mr. Ryder, and after Mr. Nordquist had been assigned to the East region exclusively, 14 new accounts and prospects in the New England area were assigned to him. These 14 accounts were intended to replace the 18 Midwest accounts that Mr. Nordquist had been told to transfer to Mr. Ryder. These 14 accounts were transferred to Mr. Nordquist from another salesman in the East region, Andy Edlund.

As of June 1981, Mr. Nordquist was responsible for a total of 34 accounts: the 14 accounts which he had received from Andy Edlund, another 14 large accounts that Mr. Nordquist had previously been covering in New England, and six accounts in the Pittsburgh, Pennsylvania area which had been reassigned from Eastern District Manager Nino Tamburello when Mr. Nordquist first became National Accounts Manager.

Soon after Mr. Nordquist’s responsibilities were realigned, he had a series of meetings and discussions with his supervisor, Steve Pandolfo, who was the East Region Manager. Soon thereafter, Mr. Nordquist received the only written criticism directed to him which was put in evidence. This was a written memorandum from Steve Pandolfo dated August 4, 1981, in which Mr. Pandolfo expressed some concern that the number of sales calls Mr. Nordquist had proposed to make over the coming year were too few to justify the time of one full man, and in which Mr. Pandolfo requested that Mr. Nordquist provide him with certain “permanent account records” by August 21, 1981. The memo of August 4, 1981 was admitted in evidence as Plaintiff’s Exhibit 21. In addition to the memo he sent to Mr. Nordquist, Mr. Pandolfo wrote several memoranda to Bengt Sandberg, a vice-president of Uddeholm, marked “confidential” or addressed to “file” which were not shown to Mr. Nordquist until after this litigation was commenced. These documents were admitted in evidence as Plaintiff’s Exhibits 36, 37, and 38. The primary concerns expressed by Mr. Pandolfo in these documents were whether Mr. Nordquist’s capacity was being satisfactorily utilized in view of the number of sales calls Mr. Nordquist was projecting for the next year, and Mr. Nordquist’s use of Mondays and Fridays to do paper work and make telephone calls at his office in his home. There was also a concern expressed about Mr. Nordquist’s tardiness in providing Mr. Pandolfo with certain “permanent account records.”

The memoranda reflect that, at least for purposes of the written records he was keeping, Mr. Pandolfo was dissatisfied with Mr. Nordquist’s utilization level. In Plaintiff’s Exhibit 37, a September 9, 1981 memorandum to Bengt Sandberg, Mr. Pandolfo recommended that Mr. Nordquist be discharged. As a result of that recommendation Mr. Nordquist was discharged on October 14, 1981.

As of the time Mr. Nordquist was discharged, 28 of his 34 accounts were in the New England territory. The other six accounts were the Pennsylvania accounts that Mr. Nordquist had received from Nino Tamburello. Those six accounts were reassigned to Mr. Tamburello after Mr. Nordquist’s discharge. As far as the New England accounts are concerned, the evidence was that the remaining salespeople covering the New England area were Russ Boehle, who was in his early thirties, and Andy Edlund, who was in his late thirties, at the time of Mr. Nordquist’s discharge. At that time Mr. Boehle had been with the company about four or five years, and Mr. Edlund had been with the company about nine or ten years. While it is not clear, there is some evidence that the 14 New England accounts that Mr. Nordquist had received from Mr. Edlund were reassigned to Mr. Edlund. There is also some evidence that as to the remaining 14 New England accounts, some of them went to Mr. Edlund. In any event, there was ample evidence from which a jury could reasonably infer that the 28 New England accounts that Mr. Nordquist had at the time he was discharged were all reassigned to either Mr. Edlund or Mr. Boehle.

In early 1982, within five months after Mr. Nordquist was discharged, Uddeholm attempted to hire a skilled salesman with a following in New England. Advertisements for that position were placed in the Boston Globe, photocopies of which were admitted as Plaintiff’s Exhibit 25 in evidence. Mr. Tamburello testified that within two or three weeks after Uddeholm had decided to advertise for the position, he had suggested to Mr. Pandolfo that Mr. Nordquist should be rehired because Mr. Nordquist had the qualifications that Uddeholm was looking for. The suggestion was ignored. However, in the summer of 1982 Mr. Nordquist did in fact apply for the position that was advertised. He was informed that Uddeholm had decided not to fill the position.

At the time of Mr. Nordquist’s discharge from Uddeholm in October of 1981, his annual salary was $38,200. Mr. Nordquist eventually obtained new employment in October of 1982 with Electralloy, Inc., just seven months after his severance payments from Uddeholm ceased at the end of February 1982. Mr. Nordquist earned $29,334 in 1982 (from sources including Uddeholm, Electralloy, and from his own business, Nordquist Associates), $44,582 in 1983, and $58,592 in 1984. He seeks back pay damages for the seven months he was unemployed during 1982.

DISCUSSION

In its memorandum in support of its motion for a directed verdict the defendant articulated three reasons why this court should grant its motion. First, it argued that the plaintiff failed to establish a prima facie case. Second, it argued that even if the plaintiff had established a prima facie case the plaintiff failed to offer adequate evidence that Uddeholm’s articulated nondiscriminatory reasons for the plaintiffs discharge were merely a pretext for discrimination. Third, the defendant argues that the plaintiff suffered no back pay damages and that the plaintiff is not entitled to prospective damages in this case.

The defendant’s arguments will be examined in the order in which they were articulated. The standard to be applied in deciding a motion for a directed verdict is whether “the evidence, viewed in the light most favorable to the non-movants without considering credibility or weight, reasonably permits only a conclusion in the movants’ favor.” Pena v. Brattleboro Retreat, 702 F.2d 322, 323 (2d Cir.1983); Sirota v. Solitron Devices, Inc., 673 F.2d 566, 573 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80 (1982); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970); see also Hagelthorn v. Kennecott Corp., 710 F.2d 76, 82 (2d Cir.1983). In examining the evidence with regard to each of the defendant’s asserted bases for a directed verdict, the court must give the non-moving party, here the plaintiff, “the benefit of all reasonable inferences which may be drawn in his favor from that evidence.” Simblest, 427 F.2d at 4; see also Lebrecht v. Bethlehem Steel Corporation, 402 F.2d 585, 589 (2d Cir.1968).

I. Did the Plaintiff Establish a Prima Facie Case?

A prima facie case is established in a claim under the ADEA if the plaintiff proves the following elements: (1) that he was between the ages of 40 and 70 at the time he was terminated; (2) that he was qualified for the position he held; (3) that he was dismissed despite his qualifications; and (4) that he was replaced, at least in part, by a substantially younger employee, or that the employer kept the position open or sought applicants to fill the position. See Stanojev v. Ebasco Services, Inc., 643 F.2d 914 (2d Cir. 1981); Haskell v. Kaman Corp., 743 F.2d 113 (2d Cir.1984); Getter v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). See also McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Mieri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.1985).

There is no dispute that the plaintiff presented sufficient evidence of the first three elements necessary to establish a prima facie case. The defendant’s argument that the plaintiff failed to establish a prima facie case focuses only on its assertion that the plaintiff failed to prove that “he was replaced or that his work was taken over by a new employee after he was discharged.” Stanojev, 643 F.2d at 920. The question for the court, therefore, is whether the evidence, viewed in the light most favorable to the plaintiff without considering credibility or weight, reasonably permits only the conclusion that the plaintiff was not replaced, at least in part, by a substantially younger employee, that Uddeholm did not keep the plaintiff’s position open, and that Uddeholm did not seek applicants to fill the position. It is at this point that an examination of the evidence is appropriate.

There is ample evidence on the record from which a jury could reasonably infer facts necessary to prove the fourth element of a prima facie case. While there was no evidence that a new employee was hired to take over Mr. Nordquist’s work, there is evidence that Mr. Nordquist was replaced, at least in part, by substantially younger employees, by virtue of the fact that there is evidence from which the jury could infer that 28 of the 34 accounts he was managing at the time of his discharge were reassigned to employees in their thirties, who in fact were trained by Mr. Nordquist, while only six of his 34 accounts were reassigned to an employee who was approximately the same age as Mr. Nordquist. It has been repeatedly held that the reassignment of the discharged employee’s work to substantially younger employees is sufficient to meet the “replacement” requirement of the fourth element of a prima facie case. See, e.g., Jacobson v. Pitman-Moore, Inc., 582 F.Supp. 169, 175 (D.Minn.1984); Bower v. State Equipment Division, 31 F.E.P. Cases 825 (W.D.Pa.1983); Berkowitz v. Allied Stores, 541 F.Supp. 1209, 1218 (E.D. Pa.1982).

The defendant has argued in its memoranda that the evidence does not show that Mr. Nordquist’s work was for the most part reassigned to younger employees. The basis for the argument is two-fold: First, there was no one who took over the position of National Accounts Manager and Training Advisor, and there was no evidence of who, if anyone, took over Mr. Nordquist’s training duties; Second, of the 28 accounts for which there is evidence of reassignment to younger employees, 14 had just recently been transferred to Mr. Nordquist from one of those employees within six months prior to his discharge.

Neither of the defendant’s arguments is persuasive. The mere fact that Mr. Nordquist’s title was not passed on to any other employee would not preclude a finding that most of the work he was doing was reassigned to substantially younger employees. Indeed, the evidence was clear that although Mr. Nordquist retained the title of National Accounts Manager until the time of his discharge in October of 1981, the evidence showed that since approximately May of 1981 Mr. Nordquist was managing accounts exclusively in the Eastern Region. Thus the title he held did not fairly describe the job that he was doing. Accordingly, the lack of evidence that anyone took over a position entitled National Accounts Manager would not represent a failure of proof that Mr. Nordquist’s work was reassigned to substantially younger employees. Further, the evidence showed that Mr. Nordquist’s training responsibilities took up a minimal amount of his time. Mr. Nordquist’s role in his training capacity was described by Steve Pandolfo in his September 9, 1981 memorandum to Bengt Sandberg as “more hit or miss than properly organized” and as “more makeup work than anything else.” See Plaintiff’s Exhibit 37, at 3. While the defendant points to this exhibit as evidence of Mr. Pandolfo’s legitimate dissatisfaction with the adequacy of Mr. Nordquist’s performance on the job, this exhibit is also evidence that at least up until one month before his discharge Mr. Nordquist’s role as Training Advisor could at best be described as peripheral to his major activity of managing accounts. Therefore, any lack of evidence as to who, if anyone, replaced Mr. Nordquist as Training Advisor does not detract from the plaintiff’s proof that most of Mr. Nordquist’s work was reassigned to substantially younger employees.

The defendant’s second argument is equally faulty. The argument essentially is that at least 14 of the 28 accounts that the plaintiff has shown were reassigned to substantially younger employees must be discounted from the calculus because those accounts were originally transferred to Mr. Nordquist from the very employee, Andy Edlund, who was later reassigned to them. The problems with this argument are twofold: First, the jury is free to look at the reassignment of the accounts for which Mr. Nordquist was responsible at the time of his discharge without regard to the history of who had previously managed those accounts; Second, even if the jury did go back five or six months prior to the time Mr. Nordquist was discharged, the evidence was clear that the 14 New England accounts Mr. Nordquist received from Mr. Edlund were meant as replacements for the 18 Midwest accounts that Mr. Nordquist had transferred to Dave Ryder, a brand new employee of the company in his early thirties. Thus, whatever view the jury took whether it be the “historical view” of Mr. Nordquist’s accounts, or the “time of discharge view,” there was ample evidence from which the jury could reasonably infer that the vast majority of Mr. Nordquist’s work was reassigned to substantially younger employees.

An additional independent avenue by which a plaintiff can prove the fourth element of a prima facie case of age discrimination is through evidence that the employer sought applicants to fill the plaintiff’s position after the plaintiff’s discharge. See Mieri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.1985). Mr. Nordquist has satisfied the fourth prong of the prima facie case requirement by this avenue as well.

Within six months after Mr. Nordquist’s discharge, Uddeholm placed advertisements in the Boston Globe which read in part as follows:

TOOL STEEL SALES
Large manufacturer of specialty tool steels seeks a sales professional for a Massachusetts territory. Outside tool steel sales experience required.
TOOL STEEL SALES
Uddeholm Steel Corp.
Seeks aggressive outside salesperson with following. Experience in Boston and Eastern Mass, preferred.

See Plaintiff’s Exhibit 25. On the basis of Mr. Nordquist’s testimony alone the jury could reasonably have inferred that these advertisements were seeking a replacement for Mr. Nordquist. The evidence was clear that Mr. Nordquist had a great deal of outside tool steel sales experience, that he had a following in New England, that he had experience in the New England area, and that all of these factors were integral requirements of the position from which he had been discharged. Further, the plaintiff adduced testimony from Mr. Tamburello, another former Uddeholm tool steel salesman from the New England region, that in his opinion Mr. Nordquist had the qualifications to fill the position that was being advertised and that within several weeks after the ads were run he suggested to Mr. Pandolfo, the person who recommended Mr. Nordquist’s discharge that Mr. Nordquist be rehired to fill the advertised position. Given Mr. Tamburello’s testimony, in addition to that of Mr. Nordquist, there was ample evidence from which a jury could reasonably infer that Uddeholm had sought applicants to fill Mr. Nordquist’s position after his discharge.

In its memoranda in support of its motion for a directed verdict in this case, the defendant makes much of the fact that the advertisements mentioned above were not run until approximately six months after Mr. Nordquist’s discharge. The argument associated with that observation is that since there was a six-month lapse of time between the plaintiff’s discharge and the defendant’s advertisement of an open position strikingly similar to the one involuntarily vacated by the plaintiff, it cannot be reasonably inferred by a jury that the advertisements were seeking a “replacement” for the plaintiff. The defendant, however, is mistaken. In Powell v. Syracuse University, 580 F.2d 1150, 1156 (2d Cir.), cert. denied, 439 U.S. 904, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978), the Second Circuit held that a gap of two years between the nonrenewal of a teaching contract and the hiring of a new teacher did not preclude the finding of “replacement” in a university context. The court noted that while such a finding might be precluded after a gap of two years in the more common case in which hiring is ongoing and employees are largely fungible, in the context of university employment, where only a small number of individuals are hired each year, the fact that a position may go unfilled for a time does not indicate that the position has been terminated. Id. The specialized knowledge required to fill the position from which Mr. Nordquist was discharged and the infrequency of hiring decisions for such a position bring this case well within the ambit of the Second Circuit’s holding in Powell. This was clearly not the more common case where hiring was ongoing and employees largely fungible.

In light of the above discussion, the defendant’s motion for directed verdict, insofar as it rests on a claim that the plaintiff failed to establish a prima facie ease, is denied.

II. Was There Adequate Evidence of Pretext?

Once the plaintiff in an age discrimination case establishes a prima facie case, the burden then shifts to the employer-defendant to produce evidence of “some legitimate, nondiscriminatory reason” for its conduct. United States Postal Service v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Haskell v. Kaman Corp., 743 F.2d at 119 n. 1; Getter v. Markham, 635 F.2d at 1032. In this case there is no dispute that the defendant has, primarily through documentary evidence, articulated several nondiscriminatory reasons for the plaintiff’s discharge. Simply stated those reasons were that during an extremely difficult business period, during which the defendant had a need to reduce its sales force, the plaintiff was performing his job inadequately and failed to respond to the requests of his supervisor for certain records and reports in a timely manner.

Once a defendant offers legitimate nondiscriminatory reasons for the discharge, the burden returns to the plaintiff to show that the articulated reasons were pretextual—that they were not the true reasons for the employer’s conduct. Aikens, 460 U.S. at 716, 103 S.Ct. at 1482; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Getter, 635 F.2d at 1035; Hagelthorn v. Kennecott Corp., 710 F.2d at 82. The plaintiff need not show that the reasons offered by the defendant were false, but only that they were not the only reasons, and that age made a difference. Hagelthorn, 710 F.2d at 83. See also Getter, 635 F.2d at 1035 (quoting Laugesen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir.1975) (plaintiff entitled to recover if age made a difference, even if need to reduce workforce was “also a strong, and perhaps even more compelling reason.”))

The plaintiff’s burden of proving pretext—that the proffered reason was not the true reason for the employment decision—now merges with the plaintiff’s ultimate burden of persuading the trier of fact that he has been the victim of intentional discrimination. The plaintiff in an age discrimination case may succeed in carrying this burden either (1) directly, by persuading the trier of fact that discrimination on account of age more likely motivated the employer; or (2) indirectly, by showing that the employer’s proferred explanation is unworthy of credence. United States Postal Service v. Aikens, 460 U.S. at 716, 103 S.Ct. at 1482; Texas Department of Community Affairs v. Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95.

In view of the fact that this case is presently before the court on the defendant’s motion for a directed verdict, the standard to be applied in ruling on the question of the adequacy of the evidence as regards plaintiffs showing of pretext is whether, viewing the evidence in the light most favorable to Mr. Nordquist without considering credibility or weight, (1) no reasonable jury could conclude that it is more likely than not that discrimination on account of age motivated Uddeholm in its decision to discharge Mr. Nordquist; and (2) that no reasonable jury could conclude that Uddeholm’s proffered explanation for Mr. Nordquisfs discharge is unworthy of credence. See United States Postal Service v. Aikens, 460 U.S. at 716, 103 S.Ct. at 1482; Pena v. Brattleboro Retreat, 702 F.2d at 323. The court must be satisfied that both of the prongs of this standard are met in order to grant the motion.

Taking the second avenue by which a plaintiff may prove pretext first—by showing that the employer’s proffered explanation is unworthy of credence—there is ample evidence in this case from which a jury could reasonably conclude that none of the nondiscriminatory reasons proffered by Uddeholm as being the motivating factor behind Mr. Nordquisfs discharge is worthy of credence.

The defendant articulated essentially three nondiscriminatory reasons for Mr. Nordquisfs discharge: (1) Mr. Nordquist failed to produce certain records and reports in a timely manner upon the request of his supervisor, Steve Pandolfo; (2) the economic climate was such that the company had a need to reduce manpower; and (3) Mr. Nordquisfs performance on the job was inadequate.

There are several exhibits in evidence which deal directly with the question of Mr. Nordquisfs compliance with his supervisor’s (Steve Pandolfo’s) request for certain records. In a memorandum from Steve Pandolfo to the file regarding sales calls with Mr. Nordquist, dated June 9, 10, and 11, 1981, Mr. Pandolfo wrote: I have also forced him [Mr. Nordquist] to commit himself to proper documentation, including permanent account records, and detailed estimates of the potential of each account which he is responsible for. He doesn’t want to do this. He was very frank with me that he feels that if he doesn’t have some substantial business under his control then he is totally at the mercy of the company and that we will do away with him. He currently controls about $1,300,000 in business and he has a very fine rapport with his contacts in those accounts.

Plaintiff’s Exhibit 36, II5. Approximately three months later, on September 14, 1981, in a memorandum from Steve Pandolfo to Bengt Sandberg regarding coverage of Mr. Nordquisfs accounts subsequent to his anticipated discharge Mr. Pandolfo wrote:

I have recently forced Roland to provide me with updated permanent account records as well as brown sheets for 1982 with his projected sales volumes in anticipation of our eventual decision to terminate him.

Plaintiff’s Exhibit 38, at 3, ¶ 3.

On the basis of these exhibits a reasonable jury could conclude that at the very time that Mr. Pandolfo “forced” (or requested) Mr. Nordquist to produce the particular records in question, the request was being made with the anticipation of terminating Mr. Nordquist already in mind. It is easily inferred, therefore, that any procrastination on the part of Mr. Nordquist in producing those records was not a serious or motivating factor in Uddeholm’s decision to discharge him. It is also noteworthy that the request for the records which Mr. Pandolfo referred to in his memorandum of September 14, 1981, as being made in anticipation of Uddeholm’s eventual decision to terminate Mr. Nordquist, was made sometime near or prior to June 11, 1981. A jury could reasonably infer from these references that the company had already known back in June of 1981 that it planned to discharge Mr. Nordquist, and that any conduct on the part of Mr. Nordquist between June 11, 1981 and the date of his discharge in October was not a serious or motivating factor in the company’s decision to discharge him.

The second reason articulated by the defendant as a legitimate nondiscriminatory reason for discharging Mr. Nordquist is that economic times were tough and there was a need to reduce the work force. A reasonable jury could conclude, however, that in Mr. Nordquist’s case this reason is not worthy of credence in light of the fact that within five or six months after Mr. Nordquist’s discharge the defendant company had placed advertisements in the Boston Globe seeking applicants to fill a position which Nino Tamburello described as one for which Mr. Nordquist was qualified. Further, after listening to Mr. Nordquist’s testimony and reading the advertisements which were admitted as Plaintiff's Exhibit 25 in evidence, a reasonable jury could have concluded that the company was seeking someone to replace Mr. Nordquist. Accordingly, it would have been reasonable for a jury to conclude that a representation that Mr. Nordquist was fired by virtue of a need to reduce the work force was not worthy of credence.

The third reason articulated by Uddeholm as a legitimate nondiscriminatory reason for Mr. Nordquist's discharge is that Mr. Nordquist’s performance on the job was inadequate. The evidence produced at the trial on this issue was conflicting. As noted earlier, Mr. Nordquist testified that between April 1968 and the end of 1979, when he managed Uddeholm’s New England branch, the sales volume went from $578,000 in 1969 to almost $2,000,000 in 1979. In addition, the branch went from losing close to $100,000 a year to making a profit of nearly $160,000 in 1979. There was also testimony that during the time he served as New England District Manager, Mr. Nordquist personally developed virtually all of Uddeholm’s major accounts in the New England area.

The last performance evaluation given to Mr. Nordquist by Steve Pandolfo prior to the time Mr. Pandolfo recommended that Mr. Nordquist be discharged was in December of 1980. In that evaluation Mr. Pandolfo noted that Mr. Nordquist had an “outstanding ability to relate to clients” and gave Mr. Nordquist a better than satisfactory overall rating. There was evidence that during 1980 Mr. Nordquist was responsible for 63% of Uddeholm’s sales in the New England area, and in addition Mr. Nordquist received a $3,000 bonus for his performance during 1980. On January 1, 1981, just six months before Mr. Pandolfo “forced” Mr. Nordquist to turn over the permanent account records in anticipation of Mr. Nordquist’s eventual termination, Mr. Nordquist’s salary was increased from $35,200 to $38,200. Finally, after Mr. Nordquist was terminated, he received a letter from Uddeholm’s Vice President Bengt Sandberg in which Mr. Sandberg described Mr. Nordquist’s talent as a salesman as “superior to most, and second to none.” Plaintiff’s Exhibit 24.

Nino Tamburello, the only other witness who testified aside from Mr. Nordquist, testified that in his 11 years with the company he had never heard anything from any management representative other than Steve Pandolfo which would indicate that Mr. Nordquist was incompetent or not performing satisfactorily.

Based on the testimony of Mr. Nordquist and Mr. Tamburello, as well as the exhibits submitted by the plaintiff, a jury could reasonably have concluded that Mr. Nordquist was well qualified to do his job up to and including the time of his discharge and that he in fact performed his job in an adequate manner. Accordingly, a jury could reasonably conclude that any assertion that the motivating factor underlying the decision to terminate Mr. Nordquist was his inadequate job performance, was not worthy of credence.

Determining whether or not Mr. Nordquist was performing adequately on the job would clearly be a subjective evaluation. The defendant asserts that Steve Pandolfo, Mr. Nordquist’s last supervisor at Uddeholm, made that evaluation, determined that Mr. Nordquist was not performing adequately, and as a result of this inadequate performance recommended that Mr. Nordquist be terminated. As counsel for the defendant stated in open court, before the jury, “Mr. Pandolfo’s state of mind is very much in issue in this case, as he is the person who, in the first instance, recommended the discharge.” (Tr. Vol. I, at 183). The only evidence directly bearing on the state of mind of Mr. Pandolfo, however, was documentary evidence. See Plaintiff’s Exhibits 18, 21, 36, 37, 38. Mr. Pandolfo, himself, was never called to the stand to testify. The plaintiff, therefore, was not afforded the opportunity to produce evidence of pretext through the normal means—cross-examination of the individual responsible for the discharge decision. Under these circumstances, and perhaps especially in light of defense counsel’s declaration before the jury that the state of mind of Mr. Pandolfo “is very much in issue in this case,” the plaintiff is entitled to the benefit of every possible inference that the testimony of Mr. Pandolfo, if he were called to the stand, would have been unfavorable to the defendant. See Karavos Compania Naveira S.A. v. Atlantic Export Corporation, 588 F.2d 1, 9-10 (2d Cir.1978). Among the reasonable inferences of unfavorable testimony that could be drawn, is that Pandolfo’s assertion that Mr. Nordquist was not performing his job adequately was not worthy of credence and/or that that assertion was merely a pretext for the real motivating factor behind the decision to terminate Mr. Nordquist—his age.

In view of the fact that a plaintiff may prove pretext by showing that the employer’s proffered explanation is unworthy of credence, and that there is ample evidence in this case from which a jury could reasonably conclude that none of the nondiscriminatory reasons proffered by Uddeholm as being the motivating factor behind Mr. Nordquist’s discharge is worthy of credence, the defendant’s motion for a directed verdict is denied insofar as it relies on the assertion that the plaintiff failed to put on adequate evidence of pretext. Having put on sufficient evidence from which a jury could reasonably conclude that none of Uddeholm's proffered reasons for Mr. Nordquist’s discharge are worthy of credence, the plaintiff need not have put on any direct evidence of pretext, in order to defeat a motion for a directed verdict. See United States Postal Service v. Aikens, 460 U.S. at 716, 103 S.Ct. at 1482; Texas Department of Community Affairs v. Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95. See also Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633, 645-47 (5th Cir.1985) (plaintiff is not required to prove that defendant-employer was motivated by bad reasons; in order to prove pretext plaintiff need only persuade the factfinder that the defendant’s purported good reasons were untrue).

III. Is the Plaintiff Entitled to Back Pay Damages?

As a third argument in support of its motion for a directed verdict, the defendant contends that as a matter of law Mr. Nordquist is not entitled to any back pay damages. The basis for the defendant’s argument is that the essential purpose of damages awards in ADEA cases is compensatory in nature. That is, prevailing plaintiffs should be made whole or restored to the economic position that they would have had but for the intervening unlawful conduct of employers. See Whittlesey v. Union Carbide, 742 F.2d 724 (2d Cir.1984); Rodriguez v. Taylor, 569 F.2d 1231, 1242-43 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). Here, the defendant contends that the financial position of Mr. Nordquist is better today than it would have been had he not been discharged by Uddeholm, and it would therefore contravene the compensatory purpose of the ADEA to award Mr. Nordquist back pay.

The factual basis for the defendant’s contention that Mr. Nordquist is now in a better financial position than he would have been had he not been discharged is that Mr. Nordquist’s actual total earnings during the years 1982, 1983, and 1984 were $132,508; whereas, if he had stayed at Uddeholm, and assuming he would have received an annual increase in salary of $2,500 starting from the base salary of $38,200 which he earned in 1981, he would have earned $129,600 for the years 1982 through 1984 ($40,700 in 1982, $43,200 in 1983, and $45,700 in 1984). This amount is nearly $3,000 less than what he actually earned over the same period.

Neither the plaintiff nor the court has any quarrel with the defendant’s assertion that the essential purpose of damage awards in ADEA cases is compensatory in nature. The real issue in dispute is over what time period damages must be calculated in order to determine what is proper compensation. The defendant argues that in order to fashion a “make whole” remedy a court must look at a plaintiff’s position at the date the damages are settled and compare it to what his position would have been but for the illegal action of the employer. The plaintiff argues, however, that a victim of discrimination is entitled to recover back pay from the day he is terminated until the day he begins working for another employer at a higher salary, and that earnings received from the subsequent higher paying employer are not deducted from the back pay award. In this case, the record indicates that Mr. Nordquist’s severance pay from Uddeholm terminated on February 28, 1982, that he was hired by Electralloy, Inc. for higher pay on October 17, 1982, and that he had no interim earnings during that seven-and-a-half-month period. The plaintiff contends, therefore, that he is entitled to back pay damages for the period between February 28, 1982 and October 17, 1982.

Back pay damage remedies under the provision of the ADEA in question here, 29 U.S.C. § 626(b), have been held to be subject to set-offs of wages actually earned from other employment that could not have been simultaneously performed with the job from which a plaintiff was discharged, despite the absence of express set-off language in the ADEA enforcement provisions. It has been specifically held that the make-whole relief objective is common to both Title VII and the ADEA and will be effectuated only if back pay awards are reduced to reflect alternate earnings. See, e.g., Rodriguez v. Taylor, 569 F.2d at 1243 n. 23. “Courts which have considered the applicability of set offs to ADEA awards have uniformly endorsed a set off of at least income earned from interim period employment.” Id. The question here is what is the appropriate “interim period” to consider—from the date of discharge until the date of employment at equal or higher salary, as the plaintiff contends; or from the date of discharge to the date of trial, as the defendant contends.

The better view is the one put forth by the plaintiff, which has been explicitly adopted by the Fifth Circuit. In Matthews v. A-1, Inc., 748 F.2d 975 (5th Cir.1984), a Title VII case involving employment discrimination on account of sex, the Fifth Circuit held that the district court properly refused to deduct the discharged female employee’s earnings at a higher paying position from her damage award, and cited with approval other courts that found that a claim for back pay ceases when the claimant begins to earn more than he had been earning with the defendant-employer. Id. at 979. Cf. Darnell v. City of Jasper, Ala., 730 F.2d 653, 656-57 (11th Cir.1984). In view of the common objectives of the damage remedies for employment discrimination of Title VII and the ADEA, the holdings of the Matthews ease, and the cases cited therein, are equally applicable here. Thus, the interim period to consider, when calculating any set-off against the back pay damages to which a plaintiff might be entitled, is the period from the date of termination to the date of employment at equal or higher salary if the plaintiff was fortunate enough to obtain such employment prior to the date of trial. In this case, Mr. Nordquist would be entitled to back pay damages for the period between February 28, 1982, the date his severance pay from Uddeholm terminated, until October 17, 1982, the date that he was hired by Electralloy, Inc. Accordingly, the defendant’s motion for a directed verdict is denied insofar as it rests on the assertion that Mr. Nordquist is not entitled to or did not suffer any back pay damages.

IV. Prospective Damages

By stipulation dated March 13, 1985, prior to the date of the trial of this case, the parties agreed that the question of equitable relief—reinstatement and/or prospective pension benefits—would be tried to the court in a separate hearing to be held only if and after the jury rendered a verdict for the plaintiff. Consistent with the stipulation, plaintiff presented no evidence concerning the appropriateness of prospective relief nor the amount of such relief.

Notwithstanding the stipulation and the plaintiff’s adherence to it at trial, the defendant argues in its motion papers that as a matter of law this is not a proper case for prospective damages. The defendant cites Whittlesey v. Union Carbide, 742 F.2d 724 (2d Cir.1984) for the proposition that prospective damages should only be allowed where the fact finder can reasonably predict that the plaintiff “has no reasonable prospect of comparable alternative employment.” Id. at 729. The defendant argues that since Mr. Nordquist obtained not merely comparable, but superior employment, under Whittlesey any award of prospective damages should be precluded.

While the evidence is clear that as far as salary is concerned, Mr. Nordquist’s employment at Electralloy, Inc. is superior to what he was earning at Uddeholm, such a comparison is not determinative of whether or not the entire employment benefit package of Electralloy can be said to be “comparable” to that which Mr. Nordquist enjoyed at Uddeholm. Without having heard any evidence on the prospective damages issue this court is not in a position to decide whether or not the two employment packages are comparable. The defendant’s interpretation of the proper scope of prospective damages relief under Whittlesey is rejected as too narrow.

Furthermore, by stipulation of the parties, which was accepted by this court, the question of Mr. Nordquist’s entitlement to prospective damages would only be properly before the court once a jury rendered a verdict in favor of the plaintiff on the liability issue.

Accordingly, the defendant’s motion for a directed verdict on the issue of Mr. Nordquist’s entitlement to prospective damages is denied.

V. The Plaintiffs Motion for Reconsideration

At the trial of this case on March 20, 1985, this court granted the defendant’s motion for a directed verdict on the issue of whether the defendant willfully violated the plaintiff’s rights under the ADEA. (Tr. Vol. II, at 37). The plaintiff now seeks a reconsideration of that ruling.

In Trans World Airlines, Inc. v. Thurston, — U.S. —, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Supreme Court accepted the formulation that an ADEA violation is “willful” if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Id., 105 S.Ct. at 625-26. Under this standard it is not necessary for the plaintiff to show that the defendant actually knew that its conduct was illegal, or that the defendant intentionally violated the Act. 105 S.Ct. at 624 n. 19. Indeed, a violation may be willful even where there is no evidence of evil motive or bad purpose. Id. The question for this court, therefore, on the plaintiffs motion is whether, when viewing the evidence in the light most favorable to Mr. Nordquist without considering credibility or weight, no jury could reasonably have concluded that Uddeholm either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.

After having the opportunity to closely review the transcript of the trial and the exhibits submitted at trial, and in light of all of the discussion above concluding that the defendant is not entitled to a directed verdict in this case either because the plaintiff failed to establish a prima facie case or because the plaintiff failed to put on adequate evidence of pretext, this court has reconsidered its original decision on the defendant’s motion for a directed verdict on the issue of willfulness and finds that a jury could have reasonably concluded that Uddeholm either knew or showed reckless disregard for the matter of whether its conduct, as regards the discharge of Roland Nordquist, was prohibited by the ADEA.

CONCLUSION

The plaintiff’s motion for reconsideration of this court’s ruling on the defendant’s motion for a directed verdict on the issue of willfulness is granted. The plaintiff’s motion for reconsideration having been granted, and this court having reconsidered its ruling on the defendant’s motion for a directed verdict on the issue of willfulness, this court’s original decision granting the motion is hereby withdrawn and the defendant’s motion for a directed verdict on the issue of willfulness is denied.

The defendant’s motion for a directed verdict on the alternative grounds that the plaintiff failed to establish a prima facie case, that the plaintiff failed to put on adequate evidence of pretext, that plaintiff suffered no back pay damages, and that this is not a proper case for prospective damages is denied.

In view of the decision herein, this case will be set down promptly for a new trial.

SO ORDERED.

      . Although counsel for the defendant represented to the court outside of the presence of the jury that the particular position being advertised was in no way similar to the job that had been held by Mr. Nordquist, the question here is what a jury could reasonably have concluded in view of the evidence that was presented to them. Given the language of the advertisements in the Boston Globe, the description of Mr. Nordquist's duties when he was employed by Uddeholm, and the lack of any evidence from the defendant that the ads were seeking applicants for a position quite unlike that which was held by Mr. Nordquist, a jury could reasonably have concluded that the ads were seeking a replacement for Mr. Nordquist.

      . On a motion for a directed verdict the fact that at trial the jury was unable to reach a verdict cannot be taken as conclusive of whether either the plaintiff or the defendant met or failed to meet their respective burdens. The test, rather, is what a jury reasonably could have concluded based on the evidence adduced. It does not follow from the fact that the jury did not find that the reasons offered by the defendant for the plaintiff's termination were not pretextual that there was not sufficient evidence from which a jury reasonably could have made such a finding.

      . It is noteworthy that in Monroe v. Penn-Dixie, 335 F.Supp. 231 (N.D.Ga.1971), the court held that damages under the ADEA should "equal the difference between the value of the compensation by way of salary together with other specific monetary benefits, such as increased pension benefits which would have vested prior to trial to which plaintiff would have been entitled had he remained employed by defendant until the trial date and the value of his total benefits and earnings at other jobs from his discharge until the trial date." Id. at 234-35 (emphasis added) (footnotes omitted). The Second Circuit, however, has characterized the discussion of that court after it ruled that the plaintiff had not stated a cause of action under the ADEA, on page 234 of that decision, as mere dicta. See Whittlesey v. Union Carbide, 742 F.2d 724, 728 (2d Cir.1984). Further, the court in Monroe did not specifically consider the situation present here, that a discharged employee might, prior to the date of trial, be able to obtain employment at higher pay than what he was earning from the employer who illegally discharged him.


author: YOUNG, District Judge.

text:
    Robert FLYNN v. NEW ENGLAND TELEPHONE COMPANY.
    Civ. A. No. 85-1379.
    United States District Court, D. Massachusetts.
    Aug. 16, 1985.

      Robert Glass, Eric I. Zucker, Deutsch, Williams, Glass, Brooks & DeRensis, Boston, Mass., for plaintiff.
    Edward R. Lev, Alicia R. Lopez, Thomas M. Alpert, Sullivan & Worcester, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff Robert Flynn brought this action against the defendant New England Telephone Company (“New England Telephone”), seeking damages and injunctive relief for the alleged violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (Count I); violation of Mass.Gen.Laws ch. 149, § 24A and ch. 151B (Count II); intentional infliction of emotional distress (Count III); negligent infliction of emotional distress (Count IV); and breach of an implied covenant of good faith and fair dealing (Count V). Flynn asserts subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1337, 29 U.S.C. § 626(c)(1), and general principles of pendant jurisdiction. New England Telephone has moved to dismiss the state law counts for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion is allowed.

I. Background

Flynn has alleged the following facts, which are accepted as true for purposes of this motion: Flynn was born on June 30, 1928. He was first employed by New England Telephone in May 1952, when he was hired as a salesman. Beginning in 1969, Flynn served in the position as attorney for New England Telephone and was responsible for overseeing litigation matters in which New England Telephone was involved.

According to Flynn, his employment was terminated by New England Telephone on July 1, 1983, without prior warning or notice. At no time prior to his firing was Flynn given any indication that his employment performance was in any way inadequate or unsatisfactory, nor did anyone from New England Telephone make any adverse comment upon his work or suggest that that work should be improved. Rather, Flynn had regularly been complimented and commenced with respect to the quality of his work, and had been told that his employment position with New England Telephone was secure. Flynn alleges that the decision to fire him was improperly and illegally motivated by age discrimination,

On March 26, 1984, Flynn filed a complaint of discrimination with the Massachusetts Commission Against Discrimination (“the Commission”). The Commission concluded its processing of Flynn’s charge in April 1984. On April 20, 1984, Flynn filed a charge of discrimination with the Equal Employment Opportunity Commission. Flynn filed the pending action in this Court on April 10, 1985.

II. Chapter 151B.

Flynn alleges in Count II that New England Telephone’s conduct in firing Flynn violated Mass.Gen.Laws ch. 149, § 24A, and ch. 151B. Chapter 149, § 24A provides in relevant part that “Whoever dismisses from private sector employment any person over the age of forty or refuses to employ such person because of his age, ... shall be punished by a fine of not more than five hundred dollars.” Because that prohibition does not provide a civil remedy, Johnson v. United States Steel Corp., 348 Mass. 168, 202 N.E.2d 816 (1964), Flynn must rely on Mass.Gen.Laws ch. 151B, which provides certain civil remedies for victims of age discrimination.

Chapter 151B provides a dual remedial process. Section 5 authorizes the bringing of discrimination complaints before the Commission, and requires that “[a]ny complaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination.” Mass.Gen.Laws ch. 151B, § 5. Section 9 establishes an alternate remedy whereby one who brings a timely complaint before the Commission may elect to bring a suit in court, so long as the court action is filed “no later than two years after the alleged unlawful practive occurred.” An action under § 9 terminates any complaint pending before the Commission. Mass.Gen.Laws ch. 151B, § 9. See Carter v. Supermarkets General Corp., 684 F.2d 187, 190-91 (1st Cir. 1982).

According to Flynn’s allegations in this action, he was fired on July 1, 1983 and filed his discrimination complaint with the Commission on March 26, 1984. Because he waited more than six months between the time he was fired and the time he filed his complaint with the Commission, Flynn’s complaint was barred by the six-month limitations period prescribed by Mass.Gen. Laws ch. 151B, § 5. The question before this Court is whether Flynn’s right to file suit under § 9 was preserved despite his failure to comply with § 5.

In Carter v. Supermarkets General Corp., 684 F.2d 187 (1st Cir.1982), the plaintiff filed her complaint with the Commission approximately nine months after the last alleged act of race discrimination against her. The Court of Appeals held that she was precluded from bringing a civil action under § 9:

[W]hen Carter filed her complaint with MCAD, more than six months had elapsed from the time of the last alleged act of discrimination.... Mass.Gen. Laws Ann. ch. 151B, § 5. The MCAD complaint with respect to this incident was therefore time-barred, and by the same token the incident could not be the proper subject of a separate state court proceeding allowed in § 9—as, indeed, the subsequent dismissal of the MCAD complaint, presumably for untimeliness, clearly showed. The two-year period could be of arguable applicability only had the MCAD complaint itself been timely filed within six months.

Id. at 191.

Flynn argues that Carter is distinguishable since that case involved a race discrimination claim arising under 42 U.S.C. § 1981. The question before the court in Carter was whether the plaintiff’s § 1981 claim was governed by the six-month period prescribed by Mass.Gen.Laws ch. 151B, § 5, or by some other limitations period. The court held that § 1981 claims brought by private employees were not subject to Massachusetts’ general contract and tort statutes of limitations, but instead were governed by the limitations periods of Mass.Gen.Laws ch. 151B. Because the plaintiff had failed to file a timely complaint with the Commission, as required by ch. 151B, § 5, the court held that a six-month limitations period applied. Although there is a question whether the holding of Carter remains good law after the Supreme Court’s recent decision in Burnett v. Grattan, — U.S. —, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984), the Burnett decision does not affect the analysis of Flynn’s state law claim under Mass.Gen. Laws ch. 151B. That is, even if the court in Carter applied the wrong statute of limitations to the federal civil rights claim at issue in that case, the court’s analysis of ch. 151B remains applicable to a state law claim brought pursuant that state statute. See Hester v. City of Lawrence, 602 F.Supp. 1420, 1421 (D.Mass.1985) (“an aggrieved person must also have filed an administrative complaint within six months in order to preserve his or her right to file suit in the courts under section 9”). Therefore, Flynn is barred from bringing a claim under Mass.Gen.Laws ch. 151B, § 9 because he failed to file a timely complaint with the Commission as required by ch. 151B, § 5.

Flynn also argues that Carter is inapplicable because that case was decided on a motion for summary judgment. This Court recognizes that it should not dismiss this action for failure to state a claim “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Walgren v. Howes, 482 F.2d 95, 99 (1st Cir. 1973) (quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Nevertheless, viewing the complaint in the light most favorable to Flynn, the Court rules that an action under Mass. Gen.Laws ch. 151B, § 9 is barred. The motion to dismiss Count II is therefore allowed.

III. Infliction of Emotional Distress

Flynn alleges in Count III that, by terminating his employment, New England Telephone intentionally inflicted emotional distress upon him. Count IV alleges negligent infliction of emotional distress. In its motion to dismiss, New England Telephone argues that both claims are barred by the exclusivity provision of the Massachusetts Workers’ Compensation Act, which states in relevant part:

An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury therein occurring, to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right____

Mass.Gen.Laws ch. 152, § 24. Flynn has not alleged that he gave New England Telephone any such written notice of his right under the act.

Common law actions are barred under the exclusivity provision of Mass.Gen. Laws ch. 152, § 24 only where: (1) the plaintiff is shown to be an employee; (2) his condition is shown to be a “personal injury” within the meaning of the Workers’ Compensation Act; and (3) the injury is shown to have arisen “out of and in the course of ... employment.” Foley v. Polaroid Corp., 381 Mass. 545, 548-49, 413 N.E.2d 711 (1980). Each of these three conditions is satisfied in this case.

First, it is undisputed that Flynn was an employee of New England Telephone. Complaint, 1110. Second, the Supreme Judicial Court in Foley made clear that “emotional distress arising out of employment” is a “personal injury” which is compensable under the Workers’ Compensation Act. Id. at 550, 413 N.E.2d 711; see Albanese's Case, 378 Mass. 14, 389 N.E.2d 83 (1979). Finally, Flynn’s own allegations establish that his claims for emotional distress arise out of and in the course of employment. Complaint, ¶¶ 19-20, 22-23 (Flynn’s emotional distress was caused as a result of the “conduct of the defendant in terminating the employment of the plaintiff ... without just cause and in bad faith, in breach of the plaintiff’s contract of employment”). See Bertrand v. Quincy Market Cold Storage & Warehouse, 728 F.2d 568, 572 (1st Cir. 1984) (“As the employer’s conduct substantially took place while the plaintiff was still an employee, and it explicitly concerned his employment, the plaintiff suffered ‘a personal injury arising out of and in the course of his employment____’ M.G.L. c. 152, § 26.”).

Flynn argues that Foley is inapplicable because it was not a termination case, but instead involved acts arising during an ongoing employment relationship. The Court does not find this argument persuasive. In Simmons v. Merchants Mutual Ins. Co., 394 Mass. 1007, 476 N.E.2d 221 (1985), the plaintiff claimed that he suffered emotional injury as a result of the defendant’s bad faith termination of his employment. The Superior Court granted the defendant’s motion to dismiss, and the Supreme Judicial Court affirmed: “A majority of the court concludes that the defendant’s motion to dismiss was properly granted because the plaintiff’s claim for intentional infliction of emotional distress is barred by the exclusivity provision of our Worker’ Compensation Act.” Id. at 1007-08, 476 N.E.2d 221; see Crews v. Memorex Corp., 588 F.Supp. 27, 30 (D.Mass.1984) (granting motion to dismiss claim for intentional infliction of emotional distress brought by employee allegedly discharged because of his age).

For these reasons, the Court rules that Flynn’s claims based on emotional distress are barred by the exclusivity provision of the Massachusetts Workers’ Compensation Act.

IV. Breach of Imylied Covenant

Count V alleges that, by firing Flynn, New England Telephone violated the public policy against age discrimination and thereby breached the implied covenant of good faith and fair dealing. The decision in Melley v. Gillette Corp., 19 Mass. App. 511, 475 N.E.2d 1227 (1985) is dispositive on this issue. The Appeals Court recognized that age discrimination violates public policy, but emphasized:

[A] finding that certain conduct contravenes public policy does not, in itself, warrant the creation of a new common law remedy for wrongful dismissal by an employer. The rationale for implying a private remedy under the ‘public policy exception’ to the traditional rule governing at-will employment contracts is that, unless a remedy is recognized, there is no other way to vindicate such public policy.
In Massachusetts, however, the public policy against age discrimination is already protected by a comprehensive legislative scheme, G.L. c. 151B.

Id. at 511-12, 475 N.E.2d 1227 (citations omitted). Because of the comprehensive remedial scheme available under Mass.Gen. Laws ch. 151B, the court held that Massachusetts does not recognize a common law action for wrongful discharge on the ground of age discrimination. Id. at 514, 475 N.E.2d 1227; see Crews v. Memorex Corp., 588 F.Supp. 27, 28-30 (D.Mass. 1984).

Flynn argues that Melley held only that administrative remedies under Mass.Gen. Laws ch. 151B must be exhausted prior to seeking redress in the courts. However, Melley cannot be interpreted so narrowly. The. Appeals Court held explicitly that there is only one state remedy against an employer for age discrimination—the statutory remedy provided by Mass.Gen.Laws ch. 151B. There was never a common law remedy before the passage of Chapter 151B, and the court in Melley declined to create one. 19 Mass.App.Ct. at 513; see Crews, suyra, 588 F.Supp. at 29 n. 2. Therefore, Flynn has failed to state a claim under Count V.

For the reasons stated, the defendant’s motion to dismiss Counts II, III, IV, and V is ALLOWED. In fairness, however, the dismissal here ordered must, and shall, give Flynn leave to amend within thirty days of the date of this order.

On March 4, 1985, the Massachusetts Supreme Judicial Court interpreted the Massachusetts Civil Rights Act, Mass.Gen. Laws ch. 12, § 11I in a broad, remedial fashion. Bell v. Mazza, 394 Mass. 176, 181-83, 474 N.E.2d 1111 (1985). The Bell decision has led at least one justice of the Superior Court to conclude that “the broad, remedial view there expressed inclines one to believe that every violation of ‘law,’ including the common law of the Commonwealth is, iyso facto, a [Massachusetts] civil rights violation if accomplished by threats, intimidation or coercion”. Moran v. Angelo’s Super Markets, Inc., Suffolk Superior Ct. 73697 (memorandum and order, April 29, 1985, at 4), 13 Mass.Lawyers Weekly 1133 (May 13, 1985). Various commentators have suggested that elements of intimidation might be found in virtually every case of alleged wrongful termination. In the present case, Flynn has characterized New England Telephone’s conduct as “extreme” and “outrageous”. It is wholly unclear whether these conclusory allegations are meant to convey some intimidating overtones. Nor has either party addressed the possibility of any claim being asserted under the Massachusetts Civil Rights Act. Accordingly, it is appropriate to dismiss, upon the grounds set forth above, the State claims which have been clearly asserted and give Flynn thirty days to determine whether he can appropriately amend and assert a Massachusetts civil rights claim supported by adequate factual allegations and the certificate of counsel that “to the best of his knowledge, information, and belief formed after reasonable inquiry [such claim] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law”. Fed.R.Civ.P. 11.

      . Flynn’s complaint in this action does not contain any allegation regarding the disposition of his claim before the Commission, except for the allegation that the Commission "concluded its processing of plaintiff’s charge” in April 1984. Complaint ¶ 3. Moreover, Flynn’s brief in opposition to the pending motion to dismiss studiously avoids any specific mention of the Commission's action. It is unnecessary for the Court to go beyond the complaint to decide this motion because Flynn has alleged a specific date on which he filed his claim before the Commission—March 26, 1984. However, in the interest of clarity, it is useful to note that the Commission dismissed Flynn’s filing for lack of jurisdiction on the ground that it was not filed within six months of the date of his termination, as required by Mass.Gen.Laws ch. 151B, § 5. The Commission’s final disposition was included by New England Telephone in support of its motion to dismiss.

      . Mass.Gen.Laws ch. 151B, § 9 provides in relevant part:
      Any person claiming to be aggrieved by a practice made unlawful under this chapter or under chapter one hundred and fifty-one C, or by any other unlawful practice within the jurisdiction of the commission, may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing, bring a civil action for damages or injunctive relief or both in the superior or probate court for the county in which the alleged unlawful practice occurred or in the housing court within whose district the alleged unlawful practice occurred if the unlawful practice involves residential housing. The petitioner shall notify the commission of the filing of the action, and any complaint before the commission shall then be dismissed without prejudice, and the petitioner shall be barred from subsequently bringing a complaint on the same matter before the commission. An aggrieved person may also seek temporary injunctive relief in the superior, housing or probate court within such county at any time to prevent irreparable injury during the pendency of or prior to the filing of a complaint with the commission.
      An action filed pursuant to this section shall be advanced for a speedy trial at the request of the petitioner____ No action under this section shall be filed later than two years after the alleged unlawful practice occurred.

      . According to the Commission’s final disposition of Flynn's complaint, the complaint was filed with the Commission on March 27, 1984 and in that complaint, Flynn alleged that he was fired on July 10, 1983. For purposes of this motion, those discrepancies are immaterial and need not be considered.

      . Because 42 U.S.C. § 1981 does not contain a statute of limitations, the courts must apply the statute of limitations governing the most analogous state action. See Burnett v. Grattan, —. U.S. —, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984).

      . Burnett involved the applicability of a six-month statute of limitations borrowed from Maryland’s administrative civil rights statute to federal civil rights claims. The Court held that is was error to apply Maryland’s six-month limitations period to action brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. Although the Court did not hold explicitly that a six-month time limitation can never be applied to claims under the federal civil rights statutes, it rejected the application of statutes of limitations which are applied to state administrative actions and not designed to serve the same goals as the federal actions. Burnett, 104 S.Ct. at 2930-31; see Hester v. City of Lawrence, 602 F.Supp. 1420, 1421 (D.Mass.1985). Because Mass.Gen.Laws ch. 15 IB shares many of the characteristics of the Maryland statute under consideration by the Court in Burnett, it is unlikely that the six-month statute of limitations period of ch. 151B, § 5 can properly be applied to federal civil rights actions brought in Massachusetts courts. See Hester, supra, 602 F.Supp. at 1422.

      . Even if Flynn had filed a timely complaint with the Commission, it is not clear that he could proceed under Mass.Gen.Laws ch. 15 IB, § 9. "Once the MCAD makes a final decision, ... relief under § 9 is presumably foreclosed, and a party has recourse only under § 6.” Carter, supra, 684 F.2d at 191. Section 6 provides that a person aggrieved by a final order of the Commission may obtain judicial review of that order, but only if the proceeding is "instituted within thirty days after the service of the order of the commission.” In this case, the Commission finally disposed of Flynn’s complaint in April 1984, and Flynn did not file this action until April 1985.


author: J. THOMAS GREENE, District Judge.

text:
    Richard L. ROYCE, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, Defendant.
    No. C-84-871G.
    United States District Court, D. Utah, C.D.
    Aug. 16, 1985.

      Kathryn Denholm, Salt Lake City, Utah, for plaintiff.
    Gregory C. Diamond, Asst. U.S. Atty., Salt Lake City, Utah, for defendant.
   MEMORANDUM DECISION AND ORDER AFFIRMING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE AND REMANDING CASE TO SECRETARY FOR FURTHER PROCEEDINGS

J. THOMAS GREENE, District Judge.

This matter came on regularly for hearing on July 31, 1985, on Objections to Magistrates Report and Recommendation. The Objections were filed on behalf of the defendant Margaret M. Heckler, Secretary of Health and Human Services. Gregory C. Diamond, Assistant U.S. Attorney for the District of Utah, appeared on behalf of the said defendant, and Kathryn Denholm appeared on behalf of plaintiff. Counsel for both parties had filed memorandums of law with the Court, and each presented extensive oral argument, after which the matter was submitted for decision by the Court and taken under advisement.

The Court independently has reviewed the entire file, documents and record in this case, including the said Report and Recommendation of the United States Magistrate dated June 12, 1985, and the Decision of the Administrative Law Judge dated April 24, 1984. Based upon a consideration of the entire record and all matters contained therein, and the Court being fully advised, the Objections to Magistrate’s Report and Recommendation are herewith denied, and the decision of the Secretary is remanded for further proceedings as directed in the Magistrate’s Report. The Court finds no substantial evidence for the Administrative Law Judge’s finding of no severe impairment of disability as that term was construed by the Magistrate.

BACKGROUND FACTS

The plaintiff, Richard L. Royce, filed an application for Supplemental Security Income under Title II of the Social Security Act on April 27, 1983, alleging that he became disabled in November of 1982 due to conditions consisting of arthritis, nervous disfunction, hearing loss, back injury and amyotrophic lateral sclerosis (ALS), a progressive wasting neuromuscular disease. The plaintiff’s application was denied initially and upon reconsideration. Claiming that he met the insured status requirements of the Social Security Act, the plaintiff requested and received an administrative hearing. The Administrative Law Judge (AU) determined that the plaintiff could not meet his burden of establishing a prima facie case of disability because he could not satisfy step two of the Health and Human Services Regulations, a showing of “severe” impairment as defined by the Regulations. See 20 C.F.R. § 404.-1520(c) (1984). The Secretary adopted the AU’s decision as final and the plaintiff sought judicial review under 42 U.S.C. § 405(g) (1982).

The United States Magistrate carefully reviewed the record, the pleadings on file and the applicable law to resolve the two issues presented: (1) whether the Secretary’s decision was made in accordance with the proper legal standards; and (2) whether the Secretary’s decision was supported by substantial evidence. After construing narrowly the “severity” requirement of step two, the Magistrate determined that there was not substantial evidence to support the Secretary’s decision. The defendant objected to the Magistrate’s Report and Recommendations because of the Magistrate’s narrow construction and interpretation of the “severity” requirement of step two, and the Magistrate’s finding of no substantial evidence to support the Secretary’s decision.

CRITERIA FOR DETERMINING DISABILITY

Title 42, Section 423 of the United States Code provides that every individual who is insured for disability insurance benefits, is under sixty-five years of age, has filed application for disability insurance benefits and is under a “disability” is entitled to disability insurance benefits. [42 U.S.C. § 423(1)(A)-(D) (1982).]

Pursuant to the United States Code, the Secretary has prescribed regulations setting forth the criteria for determining an individual’s inability to engage in substantial gainful activity, i.e., a disability. Title 20, Section 404.1520 of the Code of Federal Regulations establishes a five-step sequential analysis for evaluating disability within the meaning of the Social Security Act. Step one requires a determination of whether the Claimant currently is engaged in substantial gainful employment. If the Claimant is so employed, the inquiry ends without regard to steps two through five. If he is not so employed, step two requires a determination of whether the Claimant has a severe impairment. If the Claimant has a severe impairment, the inquiry continues to step three, which requires determination of whether the impairment meets or equals an impairment listed under Appendix 1 to part 404, subpart P of Title 20 of the Code of Federal Regulations. If it does, the disability is approved. If the impairment is not a “step three impairment,” step four requires a determination of whether the Claimant can engage in past relevant work. If he is able to return to his past relevant work, the claim is denied. If he is unable to return, step five requires a determination of whether the Claimant is able to engage in other forms of substantial gainful activity, in light of his age, education, and prior work experience. The claim is approved if he is unable to engage in other substantial gainful activity. See 20 C.F.R. § 404.1520(a)-(f) (1984).

By establishing steps one through four, a Claimant makes a prima facie showing of disability, and at that point, the burden shifts to the government to show that under step five the claimant is able to engage in other forms of substantial gainful activity in light of his age, education and prior work experience. Turner v. Heckler, 754 F.2d 326, 328 (10th Cir.1985).

STANDARDS FOR DETERMINING SEVERITY OF IMPAIRMENT:

STEP TWO

A severe impairment is an impairment or combination of impairments which significantly limits one’s physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a) (1984). Basic work activities are the “abilities and aptitudes necessary to do most jobs.” The Regulations give non-exclusive examples of basic work activities:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting. Ibid. § 404.1521(b).

It is clear from the authorities cited herein that vocational factors of age, education and prior work experience are not considered at this step, and that only general activities which are required for most types of work are to be considered.

The Tenth Circuit Court of Appeals has adopted and applied the five-step sequential process, and has defined the severity test applicable to step two as follows:

The second step under the regulations is to determine whether a claimant is “severely impaired” within the meaning of the Act. Section 404.1520(c). A person is “severely impaired” if he has a physical or mental impairment which significantly limits his ability to perform “basic work-related functions.” Section 404.1521. If the claimant is not so limited, he is not disabled within the meaning of the Act, and the matter need not be pursued further. (Emphasis added)

Tillery v. Schweiker, 713 F.2d 601 (10th Cir.1983). Accord, Donna Elliott v. Heckler, Slip Opinion filed April 30, 1985, Case No. 84-2055 (10th Cir.1985), in which case, the test was thusly stated:

An impairment is not severe if it does not limit the claimant’s physical or mental abilities to perform the basic work activities of most jobs. Id. § 404.1521.

We consider that the lack of reference to the modifying word “significantly” in Elliott was not an intentional omission since the Court specifically referenced and clearly followed the Tillery case.

The United States Magistrate observed the applicability of that basic test, but interpreted it narrowly. The Magistrate stated:

According to the Secretary’s regulations, an impairment is not “severe” if it does not significantly limit the claimant’s physical or mental abilities to do basic work activities.
* * * * * *
As explained above, a “severe” impairment is one which significantly limits the claimant’s abilities to perform basic work activities. 20 C.F.R. 404.1521(a) (1984). The regulations do not define “significantly”, so the courts should give the word its common, accepted meaning. The dictionary definitions of “significant” include “having a meaning” or “deserving to be considered”. The antonym of “significant” is “meaningless”. Therefore, under a narrow construction, an impairment is severe if the limitation it places on a claimant’s ability to perform basic work activities is not meaningless. (Magistrate’s Report 15 4, 13.)

In adopting the foregoing narrow construction of the severity test, the United States Magistrate followed the definitional approach of Judge Winder in Basso v. Schweiker, Case No. C81-0948 (USDC—Ut; Winder, J—May 6, 1983), and the approach taken by the Fifth and Eleventh Circuits, as set forth in Brady v. Heckler, 724 F.2d 914 (11th Cir.1984) wherein the Court stated that:

... an impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience. Ibid at 920. (See also Jason v. Heckler, 767 F.2d 82 (5th Cir. 1985)

It is claimed that the Magistrate misconstrued the severity test. We do not think so. It is true that the Elliott case was not called to the attention of the Magistrate and that the Magistrate was in error in asserting that the Tenth Circuit had not upheld or denied the severity regulation. (See page 10 of the Magistrate’s Report.) However, the Magistrate did not abandon or reject the test, but merely construed it narrowly. The Tenth Circuit has not defined the meaning of “significant” as that term modifies the limitation upon ability to perform basic work related functions in determining whether a person is “severely impaired.” It is very clear from Elliott, however, that the Tenth Circuit rejects vocational factors in the determination of severity, and that the Court regards consideration of inability to return to past work in making a severe impairment determination is “without legal basis.” (Elliott v. Heckler at p. 4) It is true that the Magistrate in the case at bar discussed at some length possible challenges to the severity regulations. It is not clear, however, that the Magistrate adopted the argument of plaintiffs in the case to the effect that the Secretary should have considered vocational factors including age, education and previous work experience in evaluating the second step severity determination. To the extent that any aspect of the Magistrate’s opinion is based upon a conception that the AU should have taken into account such vocational factors, such as the probability that plaintiff could not work as a welder as he had done in the past, the opinion should be and is disapproved. But we think that the Magistrate’s narrow construction of severity was not necessarily founded upon such vocational factors, but rather upon considerations of general activities applicable to various types of work. In all events, we agree with the Magistrate’s narrow definitional approach taken as to the severity test, and do not regard that construction to be at odds with the rulings of the Tenth Circuit as to the scope of the severity determination. Accordingly, we reject the contention that the Magistrate applied improper standards here.

SUBSTANTIAL EVIDENCE

The remaining question is whether, under the definitional approach taken by the Magistrate as to the severity test as set forth above, there is substantial evidence in the record to support the AU’s finding of no severe impairment and thus his termination of the sequential evaluation at step two. Where a claim is denied at step two because of a finding that the impairment, impairments or combination thereof is not severe, the proper inquiry is whether that conclusion is supported by substantial medical evidence. See, e.g., Lofton v. Schweiker, 653 F.2d 215, 217-18 (5th Cir. 1981). If the Secretary’s findings are supported by substantial medical evidence, they are conclusive. Nieto v. Heckler, 750 F.2d 59 (10th Cir.1984); Cagle v. Califano, 638 F.2d 219 (10th Cir.1981).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) [citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)]; Boulton v. Harris, 518 F.Supp. 828, 833 (D.Utah 1981). The Court’s duty, therefore, is to review the entire record to determine whether the evidence supporting the AU’s decision is such that a reasonable person would have relied upon it in finding that the Claimant’s impairments were not severe within the meaning of the Social Security Act. The Court must compare those facts in the record that detract from the AU’S findings with the facts that support his decision. This “balancing” is not to resolve conflicts in the evidence, which would supplant the function of the AU, but rather the purpose is to determine whether the evidence in support of the secretary’s decision can be considered “substantial.” Boulton v. Harris, supra. If the AU has relied on one portion of the record while disregarding overwhelming evidence to the contrary, the court must decide against the Secretary. Id. [citing Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.1964)]. In other words, the Court must examine the record as a whole and will not affirm the Secretary’s decision simply by identifying a specific quantum of evidence supporting it. Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983).

After reviewing the entire record, including the claimant’s medical records, the Court finds that there was not substantial evidence to support the AU’s determination of no severe impairment.

It is true that the medical evidence shows that the plaintiff is alert, his memory is adequate and his mental status is normal. (R. 73, 95, 105-6, 111, 118.) The plaintiff’s gait is also normal. (R. 73, 102, 106, 111). But the combined effect of the Claimant’s impairments demonstrate that his ability to perform basic work-related activities is significantly limited. In this regard, it is evident from the record that the Claimant suffers from a degenerative disc disease with multilevel spondylosis. This was verified by radiology reports. (R. 90, 121.) A treating chiropracter stated that Mr. Royce should not engage in activities that would require lifting more than 20 pounds, prolonged standing or extreme motion of the lumbar spine. Prolonged standing, bending, twisting motions of the low back and lifting would aggravate his degenerative disc disease. (R. 131). Additionally, the medical evidence shows that the Claimant’s hearing is impaired. He has a mild to severe sensori-neural hearing loss on the right side and profound sensorineural hearing loss on the left side, and therefore requires bilateral hearing aids. (R. 94-94). The Claimant’s ability to see may also be limited. The medical evidence shows that he has a history of using strong lenses to see. (R. 73). That alone would not necessarily constitute a limitation, but as early as March of 1983, the Claimant’s physicians observed muscular fascieulations around Claimant’s eyes. (R. 71). One doctor expressed concern over Claimant’s ability to read, given the prominent nysgasmus. (R. 106).

In June and August of 1983, a neurologist examined the Claimant because he was suffering from mild fasciculations. The doctor concluded that there was no neurologic cause of the twitching symptoms and that they did not interfere with his work. The neurologist, however, evaluated the Claimant only for his possible neurologic problems. In September of 1983, after his condition worsened, the Claimant spent nine days in the hospital undergoing testing for a possible motor neuron disease. (R. 110-130). This muscle twitching ranged from mild to severe and involved all parts of his body, including his face, arms, legs, thorax and abdomen. He suffered from extreme weakness of the right arm, secondary to the motorneuron disease, “probably amytrophic lateral sclerosis” (ALS). ALS is a progressive and often fatal motor neuron disease, characterized by muscle fasciculations, muscular weakness and atrophy.

The attending physicians concluded from the results of their examinations that the plaintiff was totally disabled from working for an undefinite period. (R. 129-30). Although the AU need not rely on the attending physicians’ opinion as to disability, he should not disregard the medical evidence altogether. Certainly, as the Magistrate noted, extreme weakness of the right arm and fasciculations in other parts of the body would significantly limit a Claimant’s ability to lift, push, pull, carry or handle. Each of the Claimant’s problems, considered separately, would limit his ability to perform many of the basic work-related activities set forth in Section 404.-1521(b), but might not compel a finding of severe impairment. But Claimant’s impairments, considered in combination, clearly would limit his ability to perform the basic work-related activities discussed herein and demonstrate that there was substantial evidence to support findings of severe impairment. Where there is adequate medical evidence to support a physicians’ opinion, the opinion is entitled to great weight. Byron v. Heckler, 742 F.2d 1232 (10th Cir. 1984); Broadbent v. Harris, 698 F.2d 407 (10th Cir. 1983).

It may well be that under a broad as well as narrow interpretation of “severe impairment” there was not substantial evidence to support the finding of the ALJ. In all events, however, the medical evidence shows that the limitation on Claimant’s ability to perform basic work-related activities was not “meaningless” under the narrow interpretation. The Court finds, therefore, that the evidence in the record to support the AU’s determination of no severe impairment does not rise to the level of “substantial” when compared with the overwhelming evidence to the contrary. Accordingly, the recommendation of the Magistrate is adopted and the case is remanded to the Secretary for further determination.