I respectfully dissent.
The primary issue in this age discrimination case is whether the Court of Appeals erred in setting aside the jury verdict in favor of plaintiff. I would affirm the decision of the Court of Appeals, thus rendering moot plaintiff’s motion for attorney fees.
Facts and Procedural History
Plaintiff brought this action under the Fair Employment Practices Act (fepa), MCL 423.301 et seq.; MSA 17.458(1) et seq.,1 alleging that his termination from employment with defendant was the result of age discrimination. Defendant admits that plaintiff, then forty-one years old, was terminated as part of a nationwide reduction in its work force, but contends that plaintiff was terminated solely because of his poor job evaluations.
Plaintiff was employed by defendant from October, 1963, to January 5, 1975, as a territory manager. His duties included selling to, maintaining *699relations with, and providing service to dealer-operated Amoco service stations within the territory.
Testimony established that territory managers received annual performance evaluations. In the first years, plaintiff was evaluated favorably. The written evaluations for 1965 and 1966 describe plaintiff as an "aggressive young man.”
For the first nine months of 1972, plaintiffs performance rating was a "two” on a scale of one to six, with one being the best. This interim appraisal form was completed by plaintiffs sales manager who was being transferred. Robert Johnson became plaintiffs sales manager. In March of 1973, Johnson evaluated plaintiffs overall 1972 performance at "six,” on the basis of plaintiffs failure to achieve the "basic”2 gasoline objective. The appraisal form also contained Johnson’s comments that plaintiff "[d]oes not act on difficult situations,” "[d]oes not read instructions” and is lacking "in overall administrative duties.” Plaintiffs 1973 performance was rated "four.”
In 1974, defendant determined to reorganize and reduce its sales force. It was decided that twenty-seven employees would have to be cut from the 160-member group of which plaintiff was a member. To effectuate this goal, defendant prepared "Manpower Consolidation Guidelines” (the plan). The plan contains the following statements:
Age and length of time to retirement are not to be used as criteria in the selection process; however, consideration will be given to terminating those employees with long service who indicate a desire for severance. Those who request severance on a voluntary basis must do so in writing._
*700The ratio of employees protected by nondiscrimination laws should be maintained.
The principal concept to be applied is as follows: within any given competing work group, employees protected by law, i.e., the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, should retain their proportionate share of the jobs in that group which they held prior to the reorganization.
The 160 employees were divided into four categories — women, minorities, age forty to sixty-five, and unprotected. Within each of the categories, employees were ranked by performance. The overall rating was obtained by adding the scores of each employee’s last three3 appraisals. Ties were broken according to numbers of years of employment. It was undisputed that only the last two appraisals were used in ranking the 160 employees in the group involved. Thus, plaintiffs rating was "ten.”
Along with plaintiff, four other employees received an overall rating of "ten.” Two were younger than plaintiff and were terminated. A third, a black female, and the only female in the affected work group, was retained. Her age was not established. The fourth employee, who was older than plaintiff, was retained for reasons not in evidence.4
Plaintiff, the oldest territory manager in Johnson’s group of five, was the only one of those five terminated. Plaintiff testified that his nickname in the group was "Gramps.” Further, he testified that Johnson drew unwanted attention to his fortieth birthday._
*701Plaintiff was informed of his termination on November 4, 1974, at a meeting attended by Johnson and Paul T. McClarnon, defendant’s district manager. McClarnon told plaintiff, "you’re low man in the over 40 group, so we are going to have to let you go.”
Plaintiff testified that he was replaced by a younger man, although he did not know the man’s age. Johnson testified that soon after plaintiff’s termination, the territory was expanded.
The case was tried by a jury. At the close of plaintiff’s case, defendant moved for a directed verdict, but, following lengthy arguments, the trial court denied the motion. Judgment on the jury verdict was entered in the amount of $55,000 for lost wages and $60,000 for all other damages. Thereafter, defendant’s motion for judgment notwithstanding the verdict and plaintiff’s motion for attorney fees were denied. These decisions were appealed.
In a split decision, the Court of Appeals reversed the jury verdict, concluding that the trial judge erred in failing to grant defendant’s motion for judgment notwithstanding the verdict. Matras v Amoco Oil Co, unpublished opinion per curiam, decided December 7, 1983 (Docket No. 62393). As to plaintiff’s cross-appeal, the Court upheld the trial court’s denial of plaintiff’s motion requesting attorney fees. We granted plaintiff’s application for leave to appeal on April 5, 1985. 422 Mich 857 (1985).
Age Discrimination Claim
The dispositive issue is the propriety of granting judgment notwithstanding the verdict for the employer-defendant in this age discrimination case. Since this Court has not previously addressed the *702subject, it is necessary to first discuss the substantive elements of and method of proving an age discrimination claim before applying the appropriate standards to the particular evidence introduced at the trial.
A
Plaintiff instituted this action under the fepa, which provided in pertinent part:
Sec. 3a. It is an unfair employment practice:
(a) For any employer, because any individual is between the ages of 18 and 60, or because of the sex of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment. [MCL 423.303a; MSA 17.458(3a).]
Several panels of the Court of Appeals have dealt with the question of what the plaintiff must ultimately show to prevail in an age discrimination suit. In Gallaway v Chrysler Corp, 105 Mich App 1, 6; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982), the Court held that jury instructions should convey the principle that discrimination exists if "age . . . played a significant role” in the employer’s decision.
The Gallaway Court relied on the Sixth Circuit’s decision in Laugesen v Anaconda Co, 510 F2d 307 (CA 6, 1975), which involved a suit under the Age Discrimination in Employment Act (adea), 29 USC 621 et seq. The Laugesen court concluded that a plaintiff need not prove that age discrimination was the only factor in the termination of employment:
While the instructions make it manifestly clear that the jury should find for the defendant if termination "is for bona fide business or economic *703reasons in which age is not a factor,” the converse is not stated. Rather the instructions concerning the right of plaintiff to recover state that it is unlawful to discharge an individual "merely because of his age,” and that he has the burden of showing by a preponderance of the evidence "that he was discharged from his job because of his age” without making it clear that it need not have been the sole or exclusive cause.
However expressed, we believe it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge him and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged. This is so even though the need to reduce the employee force generally was also a strong, and perhaps even more compelling reason. It is because the instructions did not convey this necessary concept of the law to the jury that we are compelled to reverse and remand for a new trial. [Laugesen, p 317.]
Similarly, in Adama v Doehler-Jarvis, 115 Mich App 82, 90; 320 NW2d 298 (1982), rev’d on other grounds 419 Mich 905 (1984), the Court, while phrasing the test somewhat differently, (age must have been "a major determinative factor, one that made a 'significant’ difference in the decision”) relied on what it termed the "Laugesen-Gallaway 'determining factor’ standard.”
Finally, in Bouwman v Chrysler Corp, 114 Mich App 670, 680; 319 NW2d 621 (1982), lv den 417 Mich 989 (1983), the Court articulated that the plaintiff must establish "that age was a determining factor in plaintiff’s being laid off,” noting that its decision was consistent with Gallaway.
In suits brought under the adea, the federal circuit courts have basically agreed that a plaintiff must prove that age was "a determining factor” in *704the challenged employment decision. See, e.g., Loeb v Textron, Inc, 600 F2d 1003, 1019 (CA 1, 1979); Bentley v Stromberg-Carlson Corp, 638 F2d 9, 12 (CA 2, 1981); Maxfield v Sinclair Int’l, 766 F2d 788 (CA 3, 1985); Lovelace v Sherwin-Williams Co, 681 F2d 230, 238 (CA 4, 1982); Marshall v Airpax Electronics, Inc, 595 F2d 1043, 1044 (CA 5, 1979); Blackwell v Sun Electric Corp, 696 F2d 1176, 1181 (CA 6, 1983); Kephart v Institute of Gas Technology, 630 F2d 1217, 1222 (CA 7, 1980), cert den 450 US 959 (1981); Holley v Sanyo Mfg, Inc, 771 F2d 1161, 1164 (CA 8, 1985); Kelly v American Standard, Inc, 640 F2d 974, 984 (CA 9, 1981); Perrell v Financeamerica Corp, 726 F2d 654, 656 (CA 10, 1984); Anderson v Savage Laboratories, Inc, 675 F2d 1221, 1224 (CA 11, 1982); Cuddy v Carmen, 224 US App DC 287, 291; 694 F2d 853 (1982).5
B
While the federal courts basically agree on what must ultimately be shown in an age discrimination case, much disagreement exists concerning how it is to be shown. This confusion is understandable, considering the inherent difficulties in proving motive, the innumerable forms of discrimination, *705and the varying factual situations involved. With regard to this last consideration, it is important to bear in mind throughout this discussion that the factual situation of the instant case is that plaintiff was discharged during defendant’s reduction of its work force.
The particular procedural context of this case requires us to determine whether the evidence created a jury question on the ultimate issue whether age was a determining factor in his discharge. That is, did plaintiff prove a prima facie6 case of discrimination?
In examining the proper method of proving a case in suits arising under the adea, some courts have adopted the order and allocation of proof set by the United States Supreme Court in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), a case involving alleged race discrimination in hiring brought under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. In McDonnell Douglas, p 802, the Court held that one way for a plaintiff to establish a prima facie7 case is to show: (1) that the plaintiff belonged to a racial minority, (2) that he applied and was qualified for a job for which the employer was seeking applicants, (3) that, despite his qualifications, he was rejected, and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of the plaintiff’s qualifications. The effect of the “prima facie case” is that of a rebuttable factual *706inference, or presumption.8 See also Texas Dep’t of Community Affairs v Burdine, 450 US 248, 254-255, ns 7, 8; 101 S Ct 1089; 67 L Ed 2d 207 (1981). The burden of producing evidence then shifts to the defendant to come forward with evidence that the decision was for a legitimate, nondiscriminatory reason. McDonnell Douglas, p 802. If this burden is carried, the motivational issue is then cast at "a new level of specificity.” Burdine, p 255. Finally, the plaintiff once again has the burden of going forward with the evidence, this time to counter the defendant’s evidence of the reason for the action with evidence that the reason given is "pretextual.” McDonnell Douglas, p 804; Burdine, p 256.
As adapted to age discrimination cases, a prima facie case might be established if the plaintiff shows that
1) he was a member of the protected class, [i.e., between 40 and 70]; 2) he was discharged; 3) he was qualified for the position; and 4) he was replaced by a younger person. [Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982).][9]
*707The McDonnell Douglas Court itself, however, noted that its test was not intended to be the only prima facie evidence test for discrimination:
The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations. [McDonnell Douglas, p 802.]
Regarding the applicability of McDonnell Douglas in age discrimination suits, the Laugesen court observed:
While it may not be unreasonable to assume that in a proper case the guidelines established in McDonnell Douglas v Green can be applied in age discrimination jury cases, we believe it would be inappropriate simply to borrow and apply them automatically. [Laugesen, supra, p 312.]
The court reasoned that employment decisions involving age may reflect the result of the universal process of aging:
The progression of age is a universal human process. In the very nature of the problem, it is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market, while younger ones move in. This factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex and national origin. Thus, while the principal thrust of the Age Act is to protect the older worker from victimization by arbitrary classification on account of age, we do not believe that Congress intended automatic presumptions to apply whenever a worker is replaced by another of a different age. [Laugesen, p 313, n 4.]
*708Noting that the adea was not designed to inhibit the employer’s right to make legitimate business decisions, the Laugesen court opted for a case-by-case approach.
I am persuaded that it would be improper to strictly apply the McDonnell Douglas guidelines in age discrimination cases involving a reduction in the work force. The fourth factor, replacement by a younger employee, is particularly of doubtful significance. If that element is required, the suit of a worthy claimant might be barred, as not all persons terminated would be able to prove that they were replaced, because of the very nature of a personnel reduction. On the other hand, allowing a cause of action any time a worker can show replacement by a younger person ignores the realities of the workplace noted in Laugesen, i.e., that older workers will, more often than not, be replaced by younger persons. See Ackerman, supra, p 70; Sahadi v Reynolds Chemical, 636 F2d 1116, 1118 (CA 6, 1980). The same cannot be said of race or sex. Further, "age is not a discrete and immutable characteristic such as sex or race, but rather is a continuum.” McCorstin v United States Steel Corp, 621 F2d 749, 753 (CA 5, 1980). I believe that it would be absurd to hold that a cause 5f action for age discrimination automatically exists when, e.g., a sixty-year-old is replaced by a fifty-nine-year-old.10
Recognizing the inadequacies of McDonnell Douglas in age discrimination suits which involve a reduction in force, some federal courts have held that some additional showing is necessary to make a prima facie case. See, e.g., LaGrant v Gulf & Western Mfg Co, Inc, 748 F2d 1087, 1091 (CA 6, 1984) ("[t]he plaintiff in such reorganization cases *709must come forward with additional . . . evidence that age was a factor in his termination”); Baldwin v Sears, Roebuck & Co, 667 F2d 458, 462 (CA 5, 1982) ("he must produce evidence . . . that the employer intended to discriminate in reaching the decision”); EEOC v Western Electric Co, Inc, 713 F2d 1011, 1015 (CA 4, 1983) ("some other evidence that the employer did not treat age neutrally”); Holley, supra, pp 1165-1166 (following LaGrant, supra).
I read the Bouwman Court’s test, on which the Court of Appeals in the instant case purportedly relied, as consistent with the just-noted principles. The Bouwman Court concluded that the plaintiff must establish: (1) that she was in the affected class, (2) that she had skills, experience, background, or qualifications comparable to other employees who were not laid off, and (3) that age was a determining factor in her being laid off. Bouwman, p 680. Noting that the plaintiff’s layoff occurred as part of a personnel cutback, the Court wrote:
[A] prima facie case of age discrimination is not shown by mere termination of a competent employee where it is shown that an employer is making cutbacks due to economic necessity. Sahadi, supra, 1118.
I read Bouwman as having used, in effect, a modified version of the fourth McDonnell Douglas factor. That is, the plaintiff was required to establish "that [she] had . . . qualifications comparable to other employees who were not laid off . . . .” Additionally, the plaintiff was required to establish that "age was a determining factor in [her] being laid off.” The inclusion of this requirement, I believe, necessitated the showing of some addi*710tional evidence of discrimination beyond mere layoff.
I am persuaded that, in a reduction of workforce case, the plaintiff must produce some evidence on the ultimate question — whether age was a determining factor in the employer’s decision— to justify submitting the case to the jury.11 This showing may be made with direct or circumstantial evidence. However, the mere showing of termination, even if the plaintiff proves replacement by a younger person or that younger, similarly qualified employees were retained, will not suffice. To say that an inference of discrimination arises out of such showing would be to ignore the fact that in a reduction of force situation some employees will inevitably be terminated. It could also attach un*711due significance to the fact of even a slight age differential. I would decline to set down a rigid test, or to enumerate distinct elements, preferring instead to focus on the bottom-line requirement of what a plaintiff must establish in any age discrimination case — i.e., that age was a determining factor in the termination.
C
In reviewing a motion for judgment notwithstanding the verdict, an appellate court must view all the evidence and testimony, and legitimate inferences therefrom, in a light most favorable to the nonmoving party. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). Upon such review, if reasonable minds could honestly reach different conclusions, the motion is properly denied. Sparks v Luplow, 372 Mich 198; 125 NW2d 304 (1963). Though "appellate courts [must] exercise considerable restraint in overruling jury determinations, [we cannot] ignore our responsibility to insure that the quantum and sufficiency of direct and circumstantial evidence presented at trial permits juries to draw reasonable inferences which would support such determination.” Kupkowski v Avis Ford, Inc, 395 Mich 155, 168; 235 NW2d 324 (1975). Having reviewed the record with these principles in mind, I agree with the Court of Appeals that "reasonable [minds] could not conclude that age was a determining factor in the decision to discharge plaintiff.”
Plaintiff argues that he proved age discrimination in three ways. First, he relies on the evidence of the plan. He correctly notes that employees were classified into groups, one of which consisted of employees between the ages of forty and sixty-five. Since the plan provided that "[t]he ratio of employees protected by [federal] nondiscrimination laws should be maintained,” it "required that *712there be a reduction in the over 40 group.”12 *713(Emphasis in original.) It was undisputed that he was told that "you’re low man in the over age 40 group, so we are going to have to let you go.”
It is crucial to remember that plaintiff’s termination occurred as part of a reduction in defendant’s work force. Regrettable as it is, in such a situation, it is inevitable that some persons will be terminated. As has been noted, "the mere termination of a competent employee when the employer is forced to make cutbacks” is not, by itself, actionable. This is not a case in which there was evidence that management favored younger workers (compare Rose, p 227), tended to fire older workers (compare Blackwell, p 1181), or suggested that older workers were disfavored (compare Laugesen, p 313). Instead, the effect of the plan was felt by workers of all ages. See Holley, p 1167. Plaintiff’s showing that two employees who had the same performance rating as he were retained is not sufficient to show that age was a determining factor in his termination.
We do not have before us the hypothetical situation posited by the majority, i.e., "if the members of that group immediately below the cutoff line scored better than employees being retained in other groups, then some employees in the 'protected’ group who deserved to be retained would be discharged because of their age . . . .” Ante, p 690. What the record does show is that two younger people whose performance was rated the same as plaintiff’s were also discharged, as were over twenty others of varying ages with better performance records. On this record, it defies logic to conclude that "the plan . . . required . . . unequal treatment because of age . . . .” Ante, p 690.
Plaintiff next argues that "age discrimination was designed into the evaluation process . . . .” The record establishes that the process of ranking *714employees within the plan’s various groups, at the end of which process plaintiff was the "low man,” was done on the basis of the employees’ performance evaluations. In support of this claim, he offered the following:
At an earlier point in his career, the annual evaluations of Mr. Matras were highly favorable, and these evaluations made note of the fact that he was an "aggressive young man”;
At the time of his termination, Mr. Matras was the oldest member of the group supervised by Bob Johnson, the person who gave Mr. Matras these low evaluations;
Mr. Matras was the only person in Johnson’s group to be fired;
Mr. Matras was enjoying one of his best years when he was terminated; and
Johnson had considerable discretion in grading the performance of the members of his group, including Mr. Matras.
I fail to see any relevance of plaintiffs earlier favorable evaluations to his later poor evaluations. The later ratings were, in large part, documented by objective failures in performance. Nor can I attach any significance to.the fact that plaintiff was the oldest and only person in Johnson’s group who was terminated. The fact remains that plaintiff ranked 156th out of the total group of 160 in terms of performance. Moreover, plaintiff simply has presented no evidence that the evaluation process was applied differently to him individually or to workers of any particular age generally.
Finally, plaintiff relies on other evidence, i.e., that he was nicknamed "Gramps” by his coworkers and that "Johnson was responsible for a forti*715eth birthday party for Mr. Matras, despite Mr. Matras’ desire not to call attention to this milestone.” There is no evidence that anyone who called plaintiff "Gramps” had any part in the decision to terminate him. Regarding the "birthday party,” all that the record establishes is that Johnson acknowledged plaintiff’s birthday at a gathering of the employees in Johnson’s group celebrating the group’s having won some money in a company incentive program. Johnson testified that he always recognized his employees’ birthdays.
Certainly, "it is an economic tragedy that anyone who wishes to work in this country is forced to lose his job.” Gill v Union Carbide Corp, 368 F Supp 364, 367 (ED Tenn, 1973). Nonetheless, like the adea, I think that the fepa was "not intended as a vehicle for judicial review of business decisions.” Kephart, supra, p 1223. Therefore, I conclude that plaintiff did not present evidence that age was a determining factor in his discharge.
Archer, J., took no part in the decision of this case.The fepa was subsequently repealed and its substantive provisions reenacted in the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The act now provides in relevant part:
"(1) An employer shall not:
"(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.” MCL 37.2202(l)(a); MSA 3.548(202)(l)(a).
The "basic” objective for an item (here, gasoline) was defined as that level of sales which would be achieved if there were no Amoco salesperson assigned to the territory.
The plan also provided that "[i]f in any particular group there are a substantial number of employees with only two appraisals, two appraisals for all may be utilized.”
This employee did have more years in service than plaintiff.
I recognize that some of these courts have expressed the concept in different terms, e.g., determining factor means that, but for the employer’s motive to discriminate because of age, the plaintiff would not have been discharged. See, e.g., Loeb, supra, 1019.1 am persuaded that there is no real difference between the tests. In Cuddy, supra, n 23, the court reasoned:
"Though the courts vary their reformulations slightly, we can discern no immediate logical difference between them. The notion of 'but for’ causation — or causation-in-fact — is a basic, threshold issue of plaintiff’s action; an act is typically not regarded as a 'but for’ cause of an event if the event would have occurred without it. See Prosser, Law of Torts 236-241 (4th ed). Thus, the 'but for’ reformulation is no more than the traditional factual inquiry into whether consideration of the impermissible criterion made a difference toward causing the adverse action to occur.”
I use "prima facie” here to denote the quantum of evidence necessary to support submission of the case to the jury.
Use of the term "prima facie” in this context denotes the plaintiffs "original production burden on the motivational question . . . [i.e., to produce] evidence whose . . . probative force . . . would suffice ... to support as a reasonable probability the inference” of discrimination. Lovelace, supra, p 242.
The Court explained the logic of the prima facie case in Furnco Construction Corp v Waters, 438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978):
“A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Teamsters v United States, supra [431 US 324, 358, n 44; 97 S Ct 1843; 52 L Ed 2d 396 (1977)]. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.”
Regarding the first factor, it should be noted that while the adea is aimed at protecting older workers, the fepa protected persons between the ages of eighteen and sixty.
This is not to say that evidence of age differential is not relevant.
E.g., Blackwell v Sun Electric Corp, 696 F2d 1176, 1181 (CA 6, 1983) (testimony as to why employer refused to expand territory for the plaintiff, and yet did so for younger replacement; testimony that manager said he could always find a reason for firing someone; evidence that young supervisor "buddied with” younger employees; and testimony regarding reasons for discharge of other older salesmen combined to raise inference of discrimination); Rose v Nat’l Cash Register Corp, 703 F2d 225, 227 (CA 6, 1983), cert den 464 US 939 (1983) (Plaintiff and two former employees testified that "company wanted to promote a new 'younger image’ while simultaneously reducing its work force.” Further, plaintiff "testified that a superior at ncr informed him that ncr held no future for a man of [plaintiff’s] age.”); Williams v General Motors Corp, 656 F2d 120, 130 (CA 5, 1981), cert den 455 US 943 (1982) ("a paper scrap with the notation 'Lay-off — Too Old’ beside a plaintiff’s name, would of course suffice”); Hedrick v Hercules, Inc, 658 F2d 1088, 1094 (CA 5, 1981) (testimony "that the company was going to get rid of the 'good 'ole Joes’ ”; "evidence that shortly before Hercules formulated its reorganization plan the company conducted a survey which revealed that in comparison with six other major chemical companies, Hercules had the highest average employee age”); Laugesen, supra, p 313 (comment on Laugesen’s Separation Notice " 'too many years on the job,’ [while ambiguous], could have meant that the length of service itself, a factor inevitably related to age, was the basis for discharge regardless of performance”); Stanojev v Ebasco Services, Inc, 643 F2d 914, 921 (CA 2, 1981) ("Through statistical evidence, it may be possible to demonstrate a pattern of failure to hire or promote older persons, or an apparent policy of forced early retirement for older employees. See generally Teamsters v United States, 431 US at 337-40, 97 S Ct 1855-56.”)
This caused the trial judge great concern, and was the basis for his denial of defendant’s motion for directed verdict:
"The Court: Okay. Well, I have a hard time perceiving a prima facie case without predicting what the result would be, with merely such evidentiary factors as to a reference to a finding that they gave him a birthday party and they put his age down on a form.
"If that — I think I can say if that’s all there was in this case, we — if that were the only evidence of age discrimination I would direct a verdict in favor of the defendant.
"I believe that there is no question, on the other hand, that there is a — at least a prima facie showing that the plan itself, without reference to any other piece of evidence, is discriminatory on account of age.
"What this plan does is insure that some person in the protected group will be discharged. It insures that.
"This is not an affirmative action plan, this is not a plan which seeks to give certain protected groups an advantage. This is this is [sic] a plan to fire people. And it mandates — it absolutely mandates that certain people will be fired. And it takes three protected groups and mandates, regardless — if you follow this plan — regardless of how they compare to the unprotected group, which is the largest single group in this plan, it mandates that some minorities will be discharged; that some people 40 to 65 will be discharged, and mandates that some women will be discharged, so long as — so long as that is necessary to maintain their proportion of the whole.
"Under this plan what could happen is that on that — applying a ranking to all in the group and the lowest people in the ranking — this is hypothetical — if they all fell within the unprotected group, this plan would require that in order to maintain this balance, the percentages, it would require that somebody in the age group, the minority group and the women group would be discharged.
"This is a negative action plan. As far as I can tell, this doesn’t— this doesn’t protect under the — notwithstanding that the plan says that we are going to keep — or implies that it will protect people in certain age groups. What it really does, regardless of relative merit to the unprotected group, it mandates that they will be discharged.
"So, for example, if — this is again hypothetical — if the plaintiff in this case had been on a merit system applied to all the employees, would have scored better than all persons in the unprotected group, but because of some peculiar situation all the older people were more talented, he, nevertheless, fell at the bottom of the 40 to 65 group, this plan would insure that he would be discharged, notwithstanding that he obtained a better score than every person in the unprotected group. And that’s why this plan, in the court’s judgment, prima facie shows rather than protect women, minorities and people 40 to 65, it discriminates against them to the extent that it insures they will be discharged in order to maintain this balance between women, minorities and the unprotected group.
"Now, I don’t know why in a plan to fire people the unprotected group has to be protected.”