Conrad Graham v. District

Opinion

USCA1 Opinion

          June 8, 1992          [NOT FOR PUBLICATION]

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          No. 91-2334

                                    CONRAD GRAHAM,
                                Plaintiff, Appellant,

                                          v.

                               GORHAM SCHOOL DISTRICT,
                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF MAINE

                     [Hon. Norman H. Stahl, U.S. District Judge]
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                                        Before

                                Selya, Circuit Judge,
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                            Roney,* Senior Circuit Judge,
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                            and Pieras,** District Judge.
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               Shawn  J. Sullivan,  with whom  Cook &  Molan, P.A.,  was on
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          brief, for appellant.
               Eleanor H. MacLellan, with whom  Sulloway Hollis & Soden was
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          on brief, for appellee.

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          *Of the Eleventh Circuit, sitting by designation.
          **Of the District of Puerto Rico, sitting by designation.

Per  Curiam.   This is  a failure-to-hire  suit brought
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          pursuant  to the  federal  Age Discrimination  in Employment  Act

          (ADEA),  29 U.S.c.    621-634 (1988).  The district court granted

          summary  judgment  in  the  defendant's  favor.    The  plaintiff

          appeals.  We affirm.

                    The court  below premised its  order on a  finding that

          plaintiff  "offered  no  evidence  to  suggest  that  defendant's

          proffered justification for not hiring him is, in fact, an effort

          on defendant's part  to disguise a discriminatory  animus,"  thus

          failing  to create a triable  issue on the  question of pretext.1

          The  plaintiff's attempt  to cast  doubt upon  this finding  as a

          matter of fact is jejune.  When, as here, the focus is on what we

          have termed "the  ultimate question," that  is, "whether, on  all

          the evidence of record, a rational factfinder could conclude that

          age  was a determining factor in the employer's decision [to fire

          the employee]," Mesnick v.  General Elec. Co., 950 F.2d  816, 825
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          (1st Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3689 (U.S.
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          March  9,  1992),  the  plaintiff  must  produce  some  probative

          evidence of  a particularized  discriminatory animus in  order to

          survive  summary judgment.  Id. at 825-26.  The evidence produced
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          must be sufficiently sturdy so that "a rational jury could infer,

          without  the  most  tenuous  insinuation,"  that  the  employer's

          professed reason for firing the plaintiff "was actually a pretext

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               1The lower court found that the  plaintiff had established a
          prima facie case.  We question one component of that finding but,
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          for  purposes of this  opinion, we assume  arguendo, favorably to
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          plaintiff, that the court was correct.

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for age discrimination."  Id. at 826 (emphasis in original).  The
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          record  before  us contains  no  such  accumulation of  probative

          evidence.   The scraps to  which the plaintiff  alludes, taken in

          the  light most congenial to his cause, are less weighty than the

          evidence  we  have  ruled  inadequate  in  a   series  of  other,

          comparable  cases.2    See,   e.g.,  id.;  Medina-Munoz  v.  R.J.
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          Reynolds Tobacco Co., 896 F.2d 5, 9-10 (1st Cir. 1990); Menzel v.
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          Western  Auto Supply Co., 848  F.2d 327, 329-30  (1st Cir. 1988);
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          Dea v. Look, 810 F.2d 12, 15 (1st Cir. 1987).
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                    The plaintiff  also argues that it  was unnecessary for

          him   to   produce   direct   or   circumstantial   evidence   of

          discriminatory  animus,  asseverating  that  such  animus  can be

          inferred from a showing of pretext, without more.  This argument,

          however, flies in the  teeth of settled circuit precedent.   See,
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          e.g., Mesnick,  supra; Medina-Munoz,  supra; Menzel,  supra; Dea,
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          supra; see  also Connell v. Bank  of Boston, 924 F.2d  1169, 1175
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          (1st Cir.),  cert. denied, 111  S. Ct. 2828  (1991).   The course
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          that plaintiff proposes is simply not  open to us.  We have held,

          with echolalic  regularity, that in a  multi-panel circuit, newly

          constituted panels are bound by  prior panel decisions closely in

          point.   See,  e.g.,  Fournier v.  Best  Western Treasure  Island
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          Resort, ___ F.2d ___, ___ (1st Cir.  1992) [No. 91-2174, slip op.
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          at 4]; Metcalf & Eddy,  Inc. v. P.R.A.S.A., 945 F.2d 10,  12 (1st
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          Cir.  1991), cert. granted, 112 S. Ct. 1290 (1992); United States
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               2Indeed,  plaintiff's  counsel  admitted  as  much  at  oral
          argument.

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v. Wogan, 938 F.2d  1446, 1449 (1st  Cir.), cert. denied, 112  S.
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          Ct.  441 (1991); Kotler v.  American Tobacco Co.,  926 F.2d 1217,
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          1223  (1st Cir. 1990), petition for cert. filed, 59 U.S.L.W. 3674
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          (U.S.  March 19, 1991); Jusino  v. Zayas, 875  F.2d 986, 993 (1st
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          Cir. 1989); Lacy v. Gardino, 791  F.2d 980, 985 (1st Cir.), cert.
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          denied,  479 U.S. 888, (1986).   "The orderly  development of the
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          law,  the  need  for  stability,  the   value  of  results  being

          predictable over  time, and the importance  of evenhanded justice

          all counsel  continued fidelity  to this  principle."   Metcalf &
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          Eddy, 945 F.2d at 12.3  We adhere to stare decisis here.
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                    We need go no  further.  Because we, like  the district

          court,  are unable  to find  in this  record any  evidence fairly

          probative  of age discrimination, and  because we are both unable

          and  unwilling to alter  clear circuit precedent,  we must affirm

          the  judgment below.    The ADEA,  after  all, "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."  Freeman  v. Package Machinery
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          Co., 865 F.2d 1331, 1341 (1st Cir. 1988).  By the same token, the
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          ADEA  does  not prohibit  an employer  from  refusing to  hire or

          promote an applicant 

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               3There are, of  course, certain narrowly defined  exceptions
          to the  principle, such as  when a  panel opinion is  undercut by
          controlling authority  subsequently  announced, or  when such  an
          opinion must yield to "the most persuasive showing  of collateral
          authority."   Metcalf  & Eddy,  945 F.2d  at 13.   None  of these
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          exceptions apply to the case at hand.

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for any reason (fair  or unfair) or for no reason, so long as age

          does not creep into the calculus.

Affirmed.
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