Boucher v. Edgcomb CV-94-185-JD 10/24/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Boucher
v. Civil No. 94-185-JD
Edgcomb Metals Co., et al.
O R D E R
The plaintiff Richard Boucher brings this action under the
Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 601 et
seg., and the Fair Labor Standards Act ("ELSA"), 29 U.S.C. § 201
et seg., to recover losses related to his June 1992 demotion and
March 1993 termination by his former employer, defendant Edgcomb
Metals Company Home. Before the court is the defendant's motion
for summary judgment on both claims (document no. 42).
Background1
The defendant processes and distributes metal products from
several locations around the country, including a facility
located in Nashua, New Hampshire. The plaintiff was hired by the
defendant in 1963 and remained in its employ until his March 12,
1993, termination. Beginning in 1979, the plaintiff held a
1The court's recitation of the facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. variety of positions related to the shipping of the defendant's
products. The plaintiff served as traffic manager from 1989
until he was replaced by a less gualified, thirty-two year-old
employee in June 1992. The plaintiff, who was then age fifty-
three, was terminated the following year. The court incorporates
other facts, infra, as necessary for its analysis of the legal
issues presented by the instant motion.
Discussion
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually reguired." Snow v.
Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993), cert.
denied, 115 S. C t . 56 (1994) (guoting Wynne v. Tufts Univ. Sch.
of Medicine, 976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 113
S. C t . 1845 (1993)). The court may only grant a motion for
summary judgment where the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears the initial burden
of establishing the lack of a genuine issue of material fact.
2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Quintero de
Quintero v. Aponte-Rogue, 974 F.2d 226, 227-28 (1st Cir. 1992).
The court must view the entire record in the light most favorable
to the non-moving party, "'indulging all reasonable inferences in
that party's favor.'" Mesnick v. General Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) (guoting Griqqs-Ryan v. Smith, 904 F.2d
112, 115 (1st Cir. 1990), cert, denied, 112 S. C t . 2965 (1992)).
However, once the moving party has submitted a properly supported
motion for summary judgment, the non-moving party "may not rest
upon mere allegation or denials of [its] pleading, but must set
forth specific facts showing that there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)). Finally, even in
employment discrimination cases, "where elusive concepts such as
motive or intent are at issue, summary judgment may be
appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Smith v. Stratus Computer, 40 F.3d 11, 13 (1st Cir. 1994) (gender
discrimination) (guoting Goldman v. First Na t '1 Bank of Boston,
985 F.2d 1113, 1116 (1st. Cir. 1993)), cert. denied, 115 S. C t .
1958 (1995) .
3 COUNT ONE: AGE DISCRIMINATION CLAIM
The parties agree that this case is governed by the burden-
shifting praxis announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See, e.g.. Woodman v. Haemonetics Corp., 51
F.3d 1087, 1091 (1st Cir. 1995) (applying McDonnell Douglas to
ADEA) (citing cases). The court will address each stage of the
analysis seriatim.
I. Stage One: The Plaintiff's Prima Facie Case
At stage one, the plaintiff is reguired to make a prima
facie showing that he (1) was at least forty years old; (2) met
his employer's legitimate performance expectations; (3)
experienced adverse employment action; and (4) the defendant did
not treat age neutrally or retained a younger person in the
plaintiff's position. E.g., Woodman, 51 F.3d at 1091 (citing
LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993),
cert. denied, 114 S. C t . 1398 (1994); Goldman, 985 F.2d at
1117)). The stage one prima facie showing "is not especially
burdensome," id. (citing Greenberg v. Union Camp Co., 48 F.3d 22,
27 (1st Cir. 1995)), and once established creates a rebuttable
presumption that the defendant engaged in unlawful age
discrimination. E.g., id. (citing Goldman, 985 F.2d at 1117).
4 The defendant concedes that the plaintiff has satisfied the
first and third elements of his prima facie case. However, the
defendant argues that it is entitled to summary judgment because
the plaintiff has not and cannot satisfy the second and fourth
elements. The plaintiff responds that the existence of a genuine
dispute of material fact on each of the two disputed elements
precludes entry of summary judgment at this stage.
Edgcomb asserts that the plaintiff has not satisfied the
second element because his job performance and gualifications,
although acceptable prior to his demotion and termination, were
no longer adeguate for the revised traffic manager position,
particularly in light of Edgcomb's deteriorating financial
condition and sharp reductions in force. See Defendant's
Memorandum of Law in Support of Summary Judgment at 20, 27
(plaintiff's evaluations indicate that his performance levels
decreased as job responsibilities increased), 28 (Edgcomb "needed
someone who could lead the department through difficult times and
handle increasing levels of responsibility").
The plaintiff has adduced evidence, much of it disputed or
termed irrelevant by the defendant, to establish that he did meet
Edgcomb's legitimate performance expectations. See, e.g..
Plaintiff's Memorandum in Opposition to Summary Judgment at 12-
16. For example, the plaintiff was named employee of the month
5 in July 1989; received performance ratings and written comments
showing levels at or above "good/competent" in 198 9 and 1991; and
in 1991 was selected as unit manager for "Project JumpStart," a
company-wide initiative designed to reduce costs and increase
efficiency. Id., exhibits 11, 15; Deposition of Peter Ward, vol.
I at 104-106. Moreover, in the April 5, 1992, Boston Globe,
Edgcomb advertised the traffic manager job as reguiring, inter
alia, "a minimum of 3 years supervisory experience in trucking
. . . which includes direct responsibility for D.O.T. and
drivers." Id., exhibit 20. The plaintiff satisfied these and
other job reguirements articulated by Edgcomb, id. at 16, and,
according to Ray Fisher, an Edgcomb plant operations manager, the
plaintiff was more gualified for the position than the individual
hired as his replacement. Id. at 17 (citing Deposition of
Richard Boucher, vol. I at 145-46). In addition, the plaintiff
has submitted statistical evidence indicating that his
department's monthly on-time delivery performance figures were at
least ten percent higher in each of the four months immediately
preceding his demotion than they were in the three months that
followed. Id. at 22 (citing exhibit 14). Likewise, as traffic
manager the plaintiff reduced annual driver overtime charges from
$113,794 in 1989, to $15,487 in 1992. Id. at 22 (citing Ward
Deposition, vol. II at 206-07; exhibit 21). Given this and other
6 evidence, the court finds that the plaintiff has satisfied the
second prima facie element.
Edgcomb next asserts that the plaintiff has not satisfied
the fourth element of the prima facie case because the plaintiff
technically was not replaced by a younger individual. See
Defendant's Memorandum in Support of Summary Judgment at 2 9
("Rallis [the younger worker] was not hired to replace plaintiff
in the sense that defendant was not going to terminate plaintiff
to make room for Rallis."). Rather, Edgcomb asserts that it
hired the younger worker to fill a newly-created traffic manager
position in which the younger worker would supervise the
plaintiff and perform other tasks previously delegated to other
employees. See id. at 29-31.
Again the plaintiff has adduced evidence to establish that
Edgcomb did, in fact, retain a younger worker in the same
position. First, the plaintiff has submitted the "new hire" form
completed by the defendant at the time Rallis was hired. The
form states that Rallis was hired as the "Replacement for Richard
Boucher who is to be reassigned at another position."
Plaintiff's Memorandum in Opposition to Summary Judgment, exhibit
9. The new hire form also identifies Rallis' position as
"TRAFFIC MANAGER NASHUA" -- the same title freguently used to
describe the plaintiff's position. See id., exhibit 9; see also
7 exhibits 1-4, 6 (affidavits of Edgcomb employees describing
plaintiff as traffic manager). Second, Arnold Thibodeau, a
former inside sales manager for the defendant, testified that in
October, 1991, he was offered and rejected the plaintiff's
position. See id., exhibit 1; Affidavit of Arnold Thibodeau at
55 10-13. Given this and other evidence, the court finds that
the plaintiff has satisfied the fourth prima facie element.
Accordingly, the plaintiff has established a rebuttable
presumption of impermissible age discrimination.
II. Stage Two: The Defendant's Legitimate Reason
At stage two, an employer may rebut the presumption of age
discrimination by "articulat[ing] a legitimate nondiscriminatory
reason for the employee's termination." LeBlanc, 6 F.3d at 842
(guoting Lawrence v. Northrop Corp., 980 F.2d 66, 69 (1st Cir.
19 92)); see Texas Pep't of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981); Woodman, 51 F.3d at 1092. The employer's burden
at this stage is only one of production, as the plaintiff retains
the burden of persuasion at all times. LeBlanc, 6 F.3d at 842
(citing Lawrence, 980 F.2d at 69; Mesnick, 950 F.2d at 823-24)).
Once the employer has proffered a legitimate nondiscriminatory
justification for its actions, the plaintiff's prima facie case
and attendant presumption of discrimination evaporates. E.g., Woodman, 51 F.3d at 1092 (citing St. Mary's Honor Ctr. v. Hicks,
113 S. Ct. 2742, 2749 (1992)); LeBlanc, 6 F.3d at 842.
Edgcomb has stated with particularity its reasons for first
demoting and later terminating the plaintiff. Edgcomb explains
that it demoted the plaintiff because his skills, although
appropriate for his position prior to the fall of 1991, were no
longer suitable for the broader responsibilities contemplated for
the Nashua traffic manager position following the consolidation
of Edgcomb's New Hampshire operations. See, e.g.. Defendant's
Memorandum in Support of Summary Judgment at 22 ("the whole focus
and direction of distribution was going to change . . . the
company needed someone to prioritize, plan, and handle
confrontation") (citing Deposition of Paul Koza, vol. I at 60-
61), 23-24 (plaintiff not capable of being strong leader) (citing
Deposition of Peter Ward, vol. I at 124-25), 24 (plaintiff was
poor delegator, could not properly prioritize workload, and could
not say no to reguests made by other departments) (citing Koza
Deposition, vol. I. at 16, 50-51).
Edgcomb justifies its termination of the plaintiff as part
of an overall reduction in force in which its total New England
workforce was reduced from approximately 265 employees in 1989 to
approximately 100 employees in 1993. See id. at 35, n.21 (citing
Affidavit of Joseph Canastra at 5 8). At the time he was terminated, the plaintiff was the "number two" manager in a
department that Edgcomb management determined could be run by a
single employee. Id. at 36-37 ("in a reduction in force, a
company needs to keep its best performers . . . a reasonable
company will retain the department heads and release their
subordinates"). The court finds that the defendant, having
articulated a legitimate, nondiscriminatory reason for its
conduct, has satisfied its burden of production at stage two of
the McDonnell Douglas analysis.
III. Stage Three: Pretext and Discrimination
The burden of production shifts back to the plaintiff at
stage three. E.g., Byrd v. Ronavne, 61 F.3d 1026, 1031 (1st Cir.
1995); Stratus Computer, 40 F.3d at 16; Woods v. Friction
Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994). To avoid
summary judgment, the plaintiff must introduce sufficient
admissible evidence to support two additional findings: (1) that
the employer's articulated reason for the job action was
pretextual; and (2) that the true reason was discriminatory.
E.g., Byrd, 61 F.3d at 1031; Stratus Computer, 40 F.3d at 16
(citing Woods, 30 F.3d at 260). "The plaintiff may rely on the
same evidence to prove both pretext and discrimination, but the
evidence must be sufficient for a reasonable factfinder to infer
10 that the employer's decision was motivated by discriminatory
animus." Stratus Computer, 40 F.3d at 16 (citing Goldman, 985
F.2d at 1117-18). Accordingly, at this stage the court must
determine whether the plaintiff has raised a genuine dispute of
material fact that the employer "did not rely on its articulated
reasons in [demoting and terminating the plaintiff] and
unlawfully discriminated against [the plaintiff] because of his
age." Woods, 30 F.3d at 262 (emphasis in original).
A. Pretext
In its motion Edgcomb asserts that the plaintiff's case is
fatally flawed because he "has offered no evidence to dispute
defendant's conclusion that he was not the strong leader and
manager needed to run the transportation function." Defendant's
Reply to Plaintiff's Opposition to Summary Judgment at 2.
Rather, it dismisses the plaintiff's evidence of pretext as
"completely deficient" and "based on arrant speculation and his
self-perception of his ability to perform the duties of traffic
manager." Defendant's Memorandum in Support of Summary Judgment
at 40-43.
The plaintiff responds that summary judgment is foreclosed
because discovery has revealed numerous disputes of fact
concerning the material guestion of whether Edgcomb's articulated
11 reasons for his demotion and termination were pretextual. See
Plaintiff's Memorandum in Opposition to Summary Judgment at SO
SO; Plaintiff's Reply Memorandum at 19.
When determining whether the plaintiff has demonstrated that
the employer's proffered reason is pretextual, the "court's focus
must be on the perception of the decisionmaker, that is, whether
the employer believed its stated reason to be credible."
Mesnick, 950 F.2d at 824 (guoting Gray v. New England Tel, and
Tel., 792 F.2d 251, 256 (1st Cir. 1986)). To meet this burden,
it is not enough for a plaintiff merely to impugn the veracity of the employer's justification; he must elucidate specific facts which would enable a jury to find that the reason given is . . . a sham.
Id. (guoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d
5, 9 (1st Cir. 1990)). In general, the "most obvious and
relevant piece of evidence [the plaintiff] could introduce to
contradict [the employer's] assertion that he was not the best
gualified for the position would be evidence regarding the
gualifications of those hired." Id.
The court has identified at least two distinct areas of
factual dispute which, depending on how the evidence is construed
by the jury, would support a finding that Edgcomb did not believe
its stated reason to be credible.
First, the plaintiff has adduced relevant evidence
concerning the gualifications of Gregory Rallis, the younger
12 individual hired for the traffic manager position. According to
a "position guestionnaire" completed in October 1990, the
gualifications for the "Traffic Manager IV" position included "at
least four years experience in all aspects of the metal
industry." Plaintiff's Memorandum in Opposition to Summary
Judgment, exhibit 12.2 Rallis' resume does not reference any
prior experience in the metal industry. See id., exhibit 19.
Likewise, the advertisement printed in the Boston Globe states
that a "CDL [commercial driver's license], driving experience,
high school diploma and continuing education is a plus." Id.,
exhibit 20. The plaintiff's gualifications include both a
commercial driver's license and driving experience while Rallis'
gualifications do not. See id., exhibit 19. In addition, the
plaintiff has testified that Ray Fisher, an Edgcomb manager, told
him "something to the effect that [Rallis] doesn't know his ass
from his elbow." Boucher Deposition, vol. IV at 94-96. A
21he plaintiff claims that the guestionnaire was completed jointly by himself and Paul Koza, his former supervisor. See Plaintiff's Memorandum in Opposition to Summary Judgment at 4 6, exhibit 12. Edgcomb maintains that the guestionnaire was completed solely by the plaintiff and, as such, does not identify which skills management considered the job to reguire. See Defendant's Response to Plaintiff's Opposition to Summary Judgment at n.18 (citing plaintiff's deposition). The court notes that, absent an unambiguous factual record, a dispute concerning what gualifications were reguired for the position in guestion and, in turn, who made such a determination, is itself material to the plaintiff's ADEA claim.
13 reasonable jury could conclude that such a remark, particularly
when made by a management-level individual with knowledge of the
defendant's business, the plaintiff, and the younger replacement,
is probative of the replacement employee's gualifications for the
position.3
Second, the plaintiff has submitted the affidavit of Arnold
Thibodeau. Thibodeau testified that following the elimination of
his job as inside sales manager in 1991, Peter Ward and Joe
Canastra offered him the position of traffic manager, then held
by the plaintiff. Affidavit of Arnold Thibodeau at 5 10.
Thibodeau further testified that
[t]he idea of me doing the Traffic Manager's job was ridiculous, because I had no knowledge or experience in transportation. I knew virtually nothing about scheduling the Edgcomb deliveries, about common carriers, or about Department of Transportation regulations.
Id. at 5 12. A reasonable jury could conclude that, by offering
the plaintiff's position to an individual who believed himself to
be ungualified, Edgcomb management replaced the plaintiff for
31he defendant dismisses Fisher's statement, and much of the plaintiff's evidence, as "immaterial" or irrelevant because it does not address the state of mind or conduct of the two people who purportedly were the only "decision-makers at issue in this case." Defendant's Reply to Plaintiff's Opposition to Summary Judgment at 3, n.9. The court notes that Fisher's remark, as retold by the plaintiff, is probative of whether the replacement was more gualified than the plaintiff and, thus, whether the defendant's justification was pretextual.
14 reasons other than those proffered, i.e., to find a more
qualified, stronger manager for the transportation department.
Edgcomb responds that its offer to Thibodeau is entirely
consistent with its legitimate, nondiscriminatory reason for the
employment actions. See Defendant's Response to Plaintiff's
Opposition to Summary Judgment at 13-14. The very fact that each
party has co-opted the Thibodeau job offer in support of its
respective position underscores the existence of a material
dispute of fact over whether the plaintiff was qualified for the
position and, thus, whether Edgcomb's articulated reasons were
pretextual.
The court finds that there is a genuine dispute of material
fact about whether Edgcomb believed its stated reason or instead
used the stated reason as a pretext for its true motivation.
B. Discriminatory Animus
Edgcomb next asserts that "the record is completely devoid
of any evidence which could support a reasonable inference of age
animus." Defendant's Memorandum in Support of Summary Judgment
at 47. Edgcomb argues that
[i]n essence, plaintiff's argument amounts to "age discrimination by default." In other words, because plaintiff cannot think of any other reason why he would have been let go, he assumes that it must have been based on his age. His assumptions, however, are not only wrong, they are wholly inadequate to avoid a summary judgment.
15 Id. at 43-44.
The plaintiff responds that he has submitted evidence of age
animus and, in addition, that the jury is entitled to infer
discriminatory intent where there is evidence of pretext and a
suspicion of mendacity. Plaintiff's Memorandum in Opposition to
Summary Judgment at 25-28 (citing Hicks, 113 S. C t . 2742);
Plaintiff's Reply Memorandum at 18-22.
To defeat a motion for summary judgment the plaintiff must
marshal sufficient evidence for the jury to find or infer that
the employment action was motivated by age animus. E.g.,
Woodman, 51 F.3d at 1092; Woods, 30 F.3d at 260. The plaintiff
may "rely on the same evidence to prove both pretext and
discrimination," Stratus Computer, 40 F.3d at 16, and, as
always, the evidence may be direct or circumstantial. Woods, 30
F.3d at 260. The Supreme Court has indicated that a jury
deciding an employment discrimination claim may infer
discriminatory animus:
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . .
Hicks, 113 S. C t . at 2749. The First Circuit has interpreted the
Hicks decision
16 as making clear that the Supreme Court envisioned that some cases exist where a prima facie case and the disbelief of a pretext could provide a strong enough inference of actual discrimination to permit the fact finder to find for the plaintiff. Conversely, we do not think that the Supreme Court meant to say that such a finding would always be permissible. The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.
Stratus Computer, 40 F.3d at 16 (guoting Woods, 30 F.3d at 261
n .3)); see Barbour v. Dynamics Research Corp., ___ F .3d, ___ ,
, No. 94-2283, 1995 WL 472043 * 6 (1st Cir. Aug. 15, 1995);
Byrd, 61 F.3d at 1031; Woodman, 51 F.3d at 1092. Although recent
decisions of the First Circuit reveal that there can be no
precise formula for use in determining whether an inference of
discriminatory animus is reasonable on the facts of a given case,
a "truly bare bones prima facie case" of age discrimination is
unlikely to support such an inference. Woods, 30 F.3d at 261
n.3.4 Finally, even given the inferences permissible under
4Ihe First Circuit has provided the following example of a case in which the plaintiff's prima facie case and the disbelief of pretext would not provide "a strong enough inference of actual discrimination to permit the fact-finder to find for the plaintiff" :
[SJuppose an employee made out a truly bare-bones prima facie case of age discrimination, and the employer responded that the employee lacked the necessary skills for the job. Suppose also that the unrefuted evidence showed that the response was a pretext, because the employer had fired the employee to conceal the employer's own acts of embezzlement. In such an
17 Hicks, a plaintiff "cannot avert summary judgment if the record
is devoid of adequate direct or circumstantial evidence of
discriminatory animus on the part of the employer." Id. (quoting
LeBlanc, 6 F.3d at 843).
The court next determines whether the plaintiff has adduced
sufficient evidence to convince a reasonable jury that the
defendant's articulated reason was not only a pretext, but was a
pretext for unlawful age discrimination. The court first
considers the direct evidence submitted on this point and, if
necessary, will proceed to review the evidence that the plaintiff
argues supports an inference of age discrimination under Hicks.
The plaintiff has submitted evidence which he claims is
directly probative of age animus. See Plaintiff's Memorandum in
Opposition to Summary Judgment at 54-55. First, the plaintiff
asserts that "Edgcomb did not apply its criteria for success as a
Traffic Manager [the on-time delivery statistics] in an age
neutral fashion." Id. at 54. Contrary to the plaintiff's
assertion, the court finds that the fact that the on-time
delivery rate was higher under his supervision of the traffic
instance, there would be a prima facie case at the outset and a disbelieved pretext, but we think it plain that no reasonable jury could find age discrimination on such a record.
Woods, 30 F.3d at 261, n.3.
18 department than under his replacement's supervision does not
constitute direct evidence of a discriminatory animus. Even
assuming the disputed fact that the on-time delivery rate was an
important performance criteria, evidence that Edgcomb disregarded
its own criteria only is probative of whether Edgcomb actually
demoted and terminated the plaintiff for the reasons stated.
That is, evidence of pretext does not, absent more, also
constitute evidence of pretext as a sham for age discrimination.
The plaintiff also asserts that the defendant's
discriminatory animus is evidenced by its offer of the
plaintiff's job to Thibodeau, the laid-off employee who did not
consider himself to be gualified. Plaintiff's Memorandum in
Opposition to Summary Judgment at 54-55; Plaintiff's Reply
Memorandum at 5-8. Again the argument fails because the
evidence, although probative of pretext, in no way suggests that
the true motivation behind the pretext was unlawful age
discrimination. Indeed, the fact that the defendant may have
offered the position to a man who at age forty-six was
approximately five years younger than the plaintiff indicates
that age did not motivate the demotion and termination decisions.
See generally Maxfield v. Sinclair Int'l, 766 F.2d 788, 793 (3d
Cir. 1985) ("If the differences in ages of the two employees were
insignificant, the district court would likely find that the
19 evidence was insufficient to permit an inference of
discrimination."), cert. denied, 474 U.S. 1057 (1986).
The court concludes that the plaintiff has failed to
identify evidence which, on its own, would allow a jury to
conclude that the motivation behind the pretext was age
discrimination. However, under Hicks and its progeny a jury
presented with a strong prima facie case of age discrimination,
particularly when coupled with solid evidence of pretext and a
suspicion of mendacity, may infer discriminatory animus without
any direct or circumstantial evidence on this element. The court
must determine whether this case would support such an inference.
The plaintiff has stated a prima facie claim of age
discrimination at stage one of the McDonnell Douglas analysis.
For purposes of its analysis under Hicks, the court finds that
the plaintiff has made out more than a "truly bare-bones prima
facie case of age discrimination." Woods, 30 F.3d at 261, n.3.
However, the court, mindful that the stage one showing "is not
especially burdensome," Woodman, 51 F.3d at 1091, notes that the
evidence presented does not constitute a particularly strong
prima facie case either. Specifically, the second element of the
plaintiff's claim, that he met his employer's legitimate
performance expectations, is based in large part on evidence of
the plaintiff's past acceptable performance and on favorable
20 testimony concerning his qualifications elicited from individuals
not in decision-making positions at Edgcomb, such as former
subordinates and members of management not responsible for the
transportation department. Although the evidence certainly does
highlight a genuine dispute over his qualifications, the proof is
far less convincing in view of the defendant's explanation that
the traffic manager position had been revised and expanded in
response to Edgcomb's well-documented financial difficulties and
dramatic reduction in force. See Menard v. First Sec. Servs.
Corp., 848 F.2d 281, 286 (1st Cir. 1988) (where business
conditions had changed, prior performance evaluations "not
directly relevant to the issue of whether he was qualified at the
time of discharge"). In sum, the court finds that the
plaintiff's prima facie case, although not bare bones, is
vulnerable because at least one element of the claim is supported
by evidence of questionable relevance.5
The court also has found, supra, that the plaintiff has
marshalled evidence which, when taken in a favorable light and
credited all reasonable inferences in the spirit of Rule 56,
5Likewise, the evidence supporting the fourth element of the plaintiff's prima facie case, i.e., that the defendant retained a younger worker in the same position, is undermined by Edgcomb's evidence that it hired Rallis for a newly-created position which included some of the tasks previously performed by the plaintiff and some responsibilities previously delegated to the plaintiff's supervisors.
21 could support a jury finding of pretext at stage three of the
analysis. The court need not elaborate on the finding for
purposes of its analysis under Hicks.
The plaintiff argues that the record supports a suspicion of
mendacity, that is, a belief that the defendant's conduct is
"characterized by deception or falsehood which often is not
intended to genuinely mislead or delude." Webster's Ninth New
Collegiate Dictionary 741 (1990) . The plaintiff claims that the
existence of disputes of material fact concerning, inter alia,
the veracity of Edgcomb's rationale for terminating him;
Edgcomb's criticism of his past job performance; and Edgcomb's
assertions that Rallis was more gualified for the position;
manifest "stark conflicts on basic issues of fact between Edgcomb
and independent witnesses [which] raise the suspicion of
Edgcomb's mendacity." Plaintiff's Memorandum in Opposition to
Summary Judgment at 54; see Plaintiff's Reply Brief at 14.
The plaintiff correctly observes that the defendant disputes
many if not most of the factual assertions material to the
instant lawsuit. For example, the court finds it somewhat
unusual that Edgcomb's senior management is unable to articulate
clearly what the plaintiff's job title was and what his
responsibilities included. Paul Koza, the defendant's manager of
plant operations, testified that prior to June 1992,
22 We didn't have traffic managers. We had dispatchers. We had a traffic manager from June of 1992 to date. Prior to that, they were referred to as dispatchers. We did not have a person that was labeled and did the job of a traffic manager. They may have had the title of traffic manager, and I explained how that happened, but they were dispatchers. They were not traffic managers.
Koza Deposition, vol. I at 83-84. Peter Ward, the defendant's
director of transportation, recalled that, prior to 1992, the
plaintiff was responsible for some but not all traffic manager
functions and "had the title of traffic manager." Ward
Deposition, vol. I at 87. The testimony of Koza and Ward stands
in contrast to the fact that, in 1989, the plaintiff was named
employee of the month for his performance as "traffic manager,"
and the fact that, in 1990, the plaintiff and Koza jointly signed
a position guestionnaire in which the plaintiff's responsibili
ties as "Traffic Manager IV" were described. See Plaintiff's
Memorandum in Opposition to Summary Judgment, exhibits 12, 15.
The court agrees that a jury reasonably could view the manner
with which Edgcomb disputes certain basic facts, such as those
concerning the plaintiff's former job title and description, as
evidence of a lack of candor or, perhaps, a mendacious approach
to the instant employment dispute.
The court finds that the plaintiff has presented an adeguate
prima facie case of age discrimination along with evidence of
pretext and a suspicion of mendacity -- the necessary
23 cornerstones of an inference of discriminatory animus under
Hicks. However, such a showing does not ipso facto defeat a
motion for summary judgment because Hicks, fairly read and as
interpreted by the First Circuit, does not diminish the
reguirement that any inference of discriminatory animus must be
reasonable in order to proceed to trial. See, e.g.. Woods, 30
F.3d at 260. Indeed, although the First Circuit recognizes that
there exist some cases in which a jury could infer intentional
discrimination from the prima facie showing and evidence of
pretext, recent decisions confirm that Hicks does not contemplate
such an inference absent a particularly strong evidentiary record
or some thread of evidence probative of a discriminatory animus.
See Barbour, 1995 WL 472043 at * 9-10 (affirming entry of summary
judgment where plaintiff "failed to present evidence that would
enable a reasonable jury to conclude that [employer's] actions
were motivated by a desire to interfere" with plaintiff's rights
under ERISA); Byrd, 61 F.3d at 1033 (affirming entry of summary
judgment where plaintiff presented "no competent evidence from
which a rational factfinder reasonably could infer that
[employer's] explanation for its adverse employment action was a
pretext for employment discrimination" on the basis of gender);
Stratus Computer, 4 0 F.3d at 18 (summary judgment affirmed where
court found "nothing in [plaintiff's] evidence that would permit
24 a reasonable jury to infer that discriminatory animus motivated
[employer] to remove [plaintiff] from her job" on the basis of
gender); Woods, 30 F.3d at 262 (summary judgment affirmed where
plaintiff "failed to present sufficient evidence to permit a
reasonable factfinder to infer that [employer's] articulated
reason was a pretext for unlawful age discrimination"); cf.
Woodman, 51 F.3d at 1090, 1094-95 (summary judgment vacated
because jury reasonably could find or infer age discrimination
given supervisor's testimony that employer "want[s] younger
people here. They will be the one[s] that will be successful
here.").6
6The plaintiff also asserts that a "suspicion of mendacity is enough to preclude summary judgment," and that "in order for a plaintiff to avoid summary judgment, he need only show that the non discriminatory reasons presented by the defendant are pretextual." Plaintiff's Reply Memorandum at 14, 19. The plaintiff argues that either the evidence of Edgcomb's evolving and sometimes contradictory explanation for its conduct or the evidence concerning the employment offer to Thibodeau preclude entry of summary judgment. See id.
The plaintiff correctly notes that the Third Circuit recently adopted the "pretext-only" interpretation of Hicks by ruling that
if the plaintiff has pointed to evidence sufficient to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case.
Waldron v. SL Industries, 56 F.3d 491, 495 (3d Cir. 1995) (guoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)); see Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th
25 Based on its application of Hicks and interpretive decisions
of the First Circuit, the court finds that the record before it
cannot support a reasonable inference that the stated reason for
the plaintiff's demotion and termination was a pretext for
unlawful age discrimination. The evidence, even accorded an
indulgent gloss under Rule 56, contains nothing to indicate that
Edgcomb's conduct was either motivated by a discriminatory animus
or was accompanied by the slightest consciousness of the
plaintiff's age. At most the evidence supports an inference that
Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one, such as age, may rationally be drawn." (guotation omitted)). Thus, in at least some circuits ADEA plaintiffs are permitted to support an inference of intentional discrimination, and thus defeat a Rule 56 motion, merely by presenting a prima facie case along with competent evidence to discredit the defendant's stated reasons for its conduct. Having made this showing, the case proceeds to trial without any consideration of whether a reasonable jury actually could draw such an inference from the content and contours of the prima facie case and the evidence of pretext.
In contrast, the First Circuit continues to reguire plaintiffs seeking to infer discriminatory intent under Hicks to adduce sufficient evidence that would allow a reasonable jury to infer such animus. It is often not enough to present a prima facie case along with evidence of pretext and mendacity because, in this circuit, the courts further examine the substance of the evidence submitted to determine whether it contains facts which, taken a light most favorable to the plaintiff, would allow a reasonable jury to infer discriminatory animus. E.g., Woods, 30 F.3d at 260. Given the existence of recent, relevant, and controlling decisions of the First Circuit, see supra, p. 23-26, the court declines to apply the more lenient, less case-specific standard, employed in other circuits.
26 Edgcomb management disbelieved the articulated rationale and,
instead, demoted and terminated the plaintiff for some other
reason it did not want to state publicly, such as personal
animosity or callous insensitivity to his dedicated service. The
plaintiff cannot evade summary judgment by presenting a genuine
factual dispute over whether his employer's true motives were, in
a generalized way, unscrupulous or even immoral because "ADEA
does not stop a company from discharging an employee for any
reason (fair or unfair) or for no reason, so long as the decision
to fire does not stem from the person's age." Mesnick, 950 F.2d
at 825 (guoting Freeman v. Package Machinery, 865 F.2d 1331, 1341
(1st Cir. 1988)).
The unreasonableness of an inference of age discrimination
is underscored by the plaintiff's own testimony, which is
properly considered as either a deposition or as an admission on
file under Rule 56(c). During his deposition the plaintiff
repeatedly stated that he was demoted and terminated because of
his age but, when pressed, conceded that this conclusion was
based on his subjective view of his job performance and
gualifications. Moreover, on at least three occasions the
plaintiff testified that his allegations of age discrimination
arose from the perceived absence of what he would consider to be
27 a logical explanation for Edgcomb's conduct. The following
excerpt typifies this reasoning:
My performance was fine. I didn't know of anything or nobody had told me, no one had told me anything about my not doing a good job in being able to handle the traffic department. I had no reason to believe, other than my age, that they would let me go.
Boucher Deposition, vol. IV at 122.7 By testifying that he
7Ihe following testimony supports Edgcomb's theory that the plaintiff grounds his allegations of discrimination on the absence of a better explanation:
Q: Now prior to the time [Gregory] Rallis came on board, did you believe that the hiring of Rallis was unnecessary?
A: Yes.
Q: And do I gather that is because you felt that it was your job and you should have had it?
A: I felt at the time that I was doing an excellent job for the company and that I was gualified to do the job and I couldn't see any reason other than my age, as to why they would bring [Rallis] on and let me go. It didn't make any sense.
Q: Anything else other than your subjective opinion?
A: No. •k -k -k -k
A: I don't know of any reason why Mr. Ward, any other reason why Mr. Ward would have let me go other than my age because I felt that I was doing a professional job as the traffic manager at Edgcomb in Nashua.
Q: Anything else?
A: No.
28 "can't think of any reason other than [his] age," id. , at 123,
the plaintiff has tacitly acknowledged that even his personal
inference of intentional age discrimination rests not on specific
facts or evidence but on "conclusory allegations" and
"unsupported speculation" -- a plainly improper basis upon which
to defeat summary judgment. E.g., Stratus Computer, 40 F.3d at
13 (guoting Goldman, 985 F.2d at 1116); Connell v. Bank of
Boston, 924 F.2d 1169, 1175 (1st Cir.), cert. denied, 501 U.S.
1218 (1991). See generally Anderson v. Liberty Lobby, 477 U.S.
Q: Let me be sure I understand. Other than your subjective belief that you were doing a good job or a professional job or whatever words you subjectively believed, is there any other reason that you can share with us that you would believe or contend that Mr. Ward either made a decision or participated in a decision to terminate you because of your age?
A: Not that I can recall at this point. •k -k -k -k
Q: [W]hat facts are you relying on to support your contention that Mr. Canastra either made the decision or participated in the decision to terminate you because of your age?
A: Only the fact that I was doing a good job for the company, my on-time performance was fine, the expenses were going down. I didn't know of any problems that he had relating to my performance. I was handling my responsibilities in an effective manner. That is all I can think of at this point.
Boucher Deposition, vol. IV at 102-103, 115-17.
29 at 256 (mere allegations insufficient to survive motion for
summary judgment) (citing Fed. R. Civ. P. 56(e)).
The prima facie case, evidence of pretext and the suspicion
of mendacity, even viewed collectively in a light most favorable
to the plaintiff, simply do not constitute "evidence sufficient
for the factfinder reasonably to conclude that the employer's
decision to [demote or] discharge . . . was wrongfully based on
age." Woods, 30 F.3d at 260. The plaintiff, unable to satisfy a
necessary element of his ADEA claim, cannot proceed to trial and
the defendant is entitled to judgment as a matter of law on count
I.
COUNT TWO: FAIR LABOR STANDARDS ACT
The plaintiff also has alleged that Edgcomb violated the
FLSA by failing to pay him overtime for hours worked in excess of
forty per work week. See Amended Complaint at 5 34. Edgcomb
asserts that there is no dispute of fact that the plaintiff's
position is exempt from the overtime provisions of the act and,
as a result, that it is entitled to summary judgment on this
claim as well.
The FLSA reguires that employees engaged in interstate
commerce be compensated for each hour worked in excess of forty
during a given work week at a rate not less than one and one-half
30 times the regular rate at which the employee is paid. 29
U.S.C.A. § 207(a)(1) (West Supp. 1995). However, the mandatory
overtime provisions do not apply to "any employee employed in a
bona fide executive, administrative, or professional capacity."
29 U.S.C.A. § 213(a)(1). The employer bears the burden of
establishing that the plaintiff is an exempt employee. Reich v.
Newspapers of New England, 44 F.3d 1060, 1070 (1st Cir. 1995).
In all cases "exemptions are to be narrowly construed against the
employers seeking to assert them and their application limited to
those establishments plainly and unmistakably within their terms
and spirit." Id. (guoting Arnold v. Ben Kanowskv, Inc., 361 U.S.
388, 392 (1960) ) .
The court's consideration of whether an employee falls
within an exemption under § 213(a)(1) is controlled by a web of
regulations promulgated by the Secretary of Labor. See id.
(citing Chevron U.S.A. v. Natural Resources Defense Council, 467
U.S. 837, 843-44 (1984) (regulations given controlling weight
unless arbitrary, capricious, or contrary to statute)). Under
the regulations, a bona fide executive is
an employee who is compensated on a salary basis at a rate of not less than $250 per week . . . and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular
31 direction of the work of two or more other employees therein.
29 C.F.R. § 541.1 (f). According to the Secretary,
A determination of whether an employee has management as his primary duty must be based on all the facts of a particular case. The amount of time spent in the performance of the managerial duties is a useful guide in determining whether management is the primary duty . . . . Time alone . . . is not a sole test . . . . [Other] pertinent factors are relative importance of the managerial duties as compared with other types of duties, the freguency with which the employee exercises discretionary powers, [and] his relative freedom from supervision.
29 C.F.R. § 541.103; see Secretary of Labor v. Papa Gino's of
America, Inc., 712 F. Supp. 1038, 1043 (1989) (guoting Donovan v.
Burger King, 672 F.2d 221, 225 (1st Cir.1982)).
A bona fide administrator is an employee who is compensated
not less than $250 per week and "whose primary duty consists of
the performance of work described in paragraph (a) of this
section, which includes work reguiring the exercise of discretion
and independent judgment." 29 C.F.R. § 541.2(e)(2). Paragraph
(a) describes an employee
[w]hose primary duty consists of either:
(1) The performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer's customers, or
(2) The performance of functions in the administration of a school system, or educational establishment or institution . . .
32 Id. at § 541.2(a). For purposes of evaluating the applicability
of the administrator exemption, the court applies the same
definition of "primary duty" used in the context of the executive
exemption. Id. at § 541.206(b).
In its motion for summary judgment Edgcomb asserts that the
plaintiff is not entitled to overtime compensation because at all
relevant times he was employed as either an executive or an
administrator within the meaning of § 213(a)(1). Edgcomb argues
that the "plaintiff's testimony as set forth in his answers to
interrogatories confirms that he was an exempt employee."
Defendant's Response to Plaintiff's Opposition to Summary
Judgment at 16. In contrast, the plaintiff asserts that summary
judgment is foreclosed because his "duties, as testified to by
Edgcomb's witnesses, do not reguire the levels of discretion and
independent judgment contemplated by the [Department of Labor]
regulations." Plaintiff's Opposition to Summary Judgment at 60.
During its consideration of the age discrimination claim the
court recognized a genuine dispute of fact concerning the
plaintiff's job title and the scope of his responsibilities prior
to and following demotion and, in turn, concluded that such a
basic dispute arguably supported a suspicion of mendacity.
Notwithstanding the existence of the dispute, the court was able
to enter summary judgment on the ADEA claim because the plaintiff
33 was unable to adduce evidence beyond arrant speculation to
support a finding or inference of discriminatory animus, a
necessary element of his claim.
The Rule 56 motion on the FLSA claim is based on the same
ambiguous factual record and, thus, presents the same genuine
dispute of fact. This time, however, the factual dispute
necessarily forecloses summary judgment because the regulations
governing overtime exemption reguire a fact-intensive inguiry
into the purpose, nature, and function of the plaintiff's
position and his working relationship with superiors and
subordinates. The inguiry is further complicated by the fact
that the plaintiff's job title and responsibilities apparently
changed in 1992 with his demotion, the hiring of Rallis, and the
claimed reorganization of the traffic department. Accordingly,
the motion for summary judgment is denied with respect to count
II.
Conclusion
The defendant's motion for summary judgment (document no.
42) is granted with respect to the plaintiff's age discrimination
claim. The defendant's motion for summary judgment is denied
with respect to the plaintiff's Fair Labor Standards Act claim.
The court's ruling with respect to the ADEA claim moots the
plaintiff's motion in limine to exclude evidence of events
34 occuring after the plaintiff's termination (document no. 55), the
defendant's motion in limine to exclude evidence or argument that
the hiring of Greg Rallis or the demotion of the plaintiff was
discriminatory (document no. 57), and the defendant's motion in
limine to exclude evidence or argument relating to the layoff of
Charles Barry (document no. 58) .
Jury selection will proceed as scheduled on November 21,
1995.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge October 24, 1995
cc: James W. Donchess, Esguire Thomas B.S. Quarles Jr., Esguire Allan M. Dabrow, Esguire