Das v. Ciba

• Court: Court of Appeals for the First Circuit
• Decided: June 8, 1993
• Docket: 92-1049
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1049 

                                    PRIYA K. DAS,

                                Plaintiff, Appellant,

                                          v.

                        CIBA CORNING DIAGNOSTICS CORPORATION,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Priya K. Das on brief pro se.
            ____________
            Edward N. Perry and Perkins, Smith & Cohen on brief for appellee.
            _______________     ______________________

____________________

                                     June 8, 1993
                                 ____________________

Per  Curiam.    In 1988  Ciba  Corning  Diagnostics
                      ___________

            Corporation  ("Ciba")  placed  an  advertisement  seeking   a

            "manufacturing engineer-mechanical."   Priya K. Das  applied,

            but was not hired, or, for that matter, granted an interview.

            He  sued Ciba alleging,  under various legal  theories,1 that

            he  was denied  employment because  of his  age  and national

            origin.   After  some discovery,  a hearing  was held  on the

            parties'  cross motions for  summary judgment.   The district

            court  granted  summary  judgment in  Ciba's  favor  and also

            allowed its  motion  for sanctions,  fining  Das $250.    Das

            appeals both rulings.  Finding no error, we affirm. 

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                      The facts are essentially undisputed and we recount

            them in a light favorable to the plaintiff.

                      The advertisement that gave rise to this litigation

            described  Ciba as a  company engaged in  medical diagnostics

            and biomedical research.  The  ad stated: "We are looking for

            an individual  to provide mechanical  engineering support  to

            the medical  instrument assembly  and test areas.  . .  . The

            ideal  candidate will have  a B.S. in  Mechanical Engineering

____________________

            1.   Das' suit alleged violations  of Title VII, 42 U.S.C.   
            2000e  et  seq.;  the Age  Discrimination  in  Employment Act
                   ________
            ("ADEA"), 29 U.S.C.    621 et seq.; and the  Civil Rights Act
                                       _______
            of 1866,  42 U.S.C.    1981.   "[T]he standards  of liability
            under all [of  these statutes] are substantially  identical,"
            Villanueva  v. Wellesley College, 930  F.2d 124, 126 n.2 (1st
            __________     _________________
            Cir.), cert. denied, 112 S.  Ct. 181 (1991), and the district
                   _____ ______
            court, accordingly, analyzed Das' claims collectively.   

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and  3-5 years of experience in a manufacturing environment."

            Of 57  applicants, Das  and 53  others were  not interviewed.

            Born and educated  in India, Das was  46 years of age  at the

            time.   Ciba hired  a younger  candidate who  possessed, like

            Das, a  B.S. in mechanical  engineering, but  had only  three

            years  of  work  experience.   Dissatisfied  with  the hiring

            decision, Das wrote to Ciba  for an explanation.  The company

            responded that Das'  25 years of experience were  not a "good

            fit"  with  the criteria  set  for the  entry  level position

            advertised.  This suit ensued.

                      In an  affidavit supporting its  motion for summary

            judgment  Ciba averred  that Das' application  was eliminated

            because (1) the company was  not interested in candidates who

            changed jobs every  two years: "Das' excessive  `job hopping'

            made him a very unattractive candidate," and (2) none of Das'

            experience  related to the  medical or biomedical  field.  It

            was  attested that the  hired candidate's hands-on experience

            in plastics was the deciding factor in making a job offer due

            to the  increased use of plastic  parts in the industry.   As

            such,  the hiree possessed  more relevant experience  for the

            advertised position under the hiring criteria then in place.

                      In   opposition,  Das   pointed  to   his  superior

            education   and   experience  which,   he   declared   in  an

            accompanying affidavit, fully qualified him for the job.  The

            denial  of employment because  of his 25  years of experience

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shows,  he  asserted,  that   Ciba's  selection  process  was

            grounded  in age bias.  And, Das  claimed, the fact that Ciba

            later  changed its story  and offered a  different rationale,

            i.e., that he  was a job-hopper, signified a  cover-up of the

            true reason for  the hiring decision.  According  to Das, his

            job changes were  either for career advancement or the result

            of   layoffs,  plant  closings,  and  the  like,  all  common

            occurrences in  manufacturing industries.   Accordingly,  the

            job-hopper label was  untrue, and  merely a  pretext for  the

            real reason: age discrimination.

                      Following a hearing, the district court ruled  from

            the  bench that  Das, in  attacking  the person  hired as  an

            unqualified  candidate,  had  failed  to  offer  sufficiently

            probative evidence from which  a fact-finder could reasonably

            infer that defendant's  hiring reasons were a pretext for age

            or  national  origin  discrimination.    Accordingly,  Ciba's

            motion  for summary  judgment was  allowed,  and Das'  cross-

            motion for summary judgment was denied.

                                      DISCUSSION
                                      DISCUSSION

                                          I
                                          _

                      This suit  is virtually  identical to  three others

            brought  by Das  after he  was  not hired  for an  advertised

            engineer  position  solely  because of  the  contents  of his

            resume.   See Das  v. Cri-Tech, Inc.,  No. 90-1769,  slip op.
                      ___ ___     ______________

            (1st Cir. Jun. 12, 1991)  (Das I);  Das v. Bowmar/Ali,  Inc.,
                                       _____    ___    _________________

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No. 90-2096, slip op. (1st Cir. Jun. 21, 1991) (Das II),  and
                                                            _______

            Das v. A.W.  Chesterton Co., No. 91-1159, slip  op. (1st Cir.
            ___    ____________________

            Sept. 24, 1991) (Das  III).  Each prior appeal -  - also from
                             ________

            an adverse  summary judgment  - - was  affirmed on  the basis

            that  Das  had  failed  to  present  any  probative  evidence

            permitting an  inference that  the hiring  decision masked  a

            discriminatory motive or  was otherwise incredible.   In this

            appeal,   we   focus,   as  does   appellant,   on   the  age

            discrimination claim.

                      In Das  I and  Das II, we  described the  standards
                         ______      ______

            applicable  to summary  judgment  in the  disparate treatment

            employment discrimination context,  and do not  restate them.

            See  also Goldman  v. First  Nat'l Bank  of Boston,  985 F.2d
            ___  ____ _______     ____________________________

            1113, 1116-18 & n.4 (1st  Cir. 1993).  The Supreme Court  has

            recently  clarified the  standards  for  liability under  the

            ADEA.   Hazen Paper Co. v.  Biggins, 113 S. Ct.  1701 (1993).
                    _______________     _______

            The Court  explained that  "there is  no disparate  treatment

            under the ADEA  when the  factor motivating  the employer  is

            some feature other than the  employee's age," id. at 1705; "a
                                                          ___

            disparate   treatment  claim   cannot   succeed  unless   the

            employee's protected  trait actually  played a  role in  [the

            employer's  decisionmaking] process  and had  a determinative

            influence on the outcome."  Id. at 1706.
                                        ___

                      We  assume, as  did the  district  court, that  Das

            satisfied the  prima facie rubric  for hiring  discrimination

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claims.  Keyes v. Secretary of the Navy, 853 F.2d 1016,  1023
                     _____    _____________________

            (1st Cir. 1988).   Ciba clearly and  sufficiently articulated

            permissible   non-discriminatory  reasons   for  its   hiring

            decision, requiring Das to show that explanation "unworthy of

            credence,"  that is, "not the true  reason for the employment

            decision."  Texas  Dep't of Community Affairs v. Burdine, 450
                        _________________________________    _______

            U.S. 248, 256 (1981).

                      We conclude, relying on the analysis set out in Das
                                                                      ___

            II, that  plaintiff failed  to undercut  the plausibility  of
            __

            Ciba's  proffered  rationale  with  specific  facts (and  not

            merely  subjective conclusions) that  would enable a  jury to

            find that age  was an undisclosed,  motivating factor in  the

            hiring decision.   In so  deciding, we note, first,  that Das

            has  not attempted  to counter  Ciba's  explanation that  his

            resume  indicated  no  experience  in the  medical/biomedical

            fields.  Second, regarding Das' claim that  Ciba "changed its

            story" and  later offered a  different reason for  not hiring

            him, Das  has failed  to show that  those later  reasons were

            premised  upon  discriminatory  motive.   As  we  have stated

            before:  "Since an  employer's nondiscriminatory  motivations

            for adverse  employment decisions  are irrelevant  in an  age

            discrimination  case, a  `mere  showing  that the  employer's

            articulated    reason    may   shield    another    (possibly

            nondiscriminatory)  reason  does  not  create  a  dispute  of

            material  fact' sufficient  to  withstand summary  judgment."

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Goldman,   985  F.2d  at  1118  n.4  (quoting  Villanueva  v.
            _______                                        __________

            Wellesley  College, 930  F.2d  124,  128  (1st  Cir.),  cert.
            __________________                                      _____

            denied, 112 S. Ct. 181 (1991)).
            ______

                      Finally,  Das stresses the role that his many years

            in the  field may have played  in hurting his chances  to get

            the job.   He argues that hiring criteria which impermissibly

            favor a minimum number of years of work experience make age a

            determining  factor in the selection process and, because age

            and experience  are directly  related, effectively  eliminate

            all applicants over 40 years of age.  The Biggins decision is
                                                      _______

            instructive  on this  point.   In deciding  that a  dismissal

            based   solely  on  pension  status  was  not  discriminatory

            treatment on  the basis of  age for ADEA purposes,  the Court

            emphasized  that  "[b]ecause  age and  years  of  service are

            analytically  distinct, an employer  can take account  of one

            while ignoring  the other,  and thus it  is incorrect  to say

            that a  decision based  on years  of  service is  necessarily

            `age-based'."  Biggins,  113 S. Ct.  at 1707.   Consequently,
                           _______

            the ADEA  is  not violated  when  the factor  motivating  the

            employment decision merely correlates  with age, i.e.,  gives

            rise to a  permissive and not a necessary inference.  By like

            token, having failed to show  that age actually played a role

            in the decision not to hire him, Das may not, under  Biggins,
                                                                 _______

            ask  us to  presume that  the employer's  decision to  hire a

            candidate   with  significantly   less  work   experience  is

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automatically age-based.  As Biggins makes plain, even if, as
                                         _______

            Das speculates, older  workers are likely to  have more years

            of work experience, Ciba's decision to hire an engineer  with

            three  years of  desired experience  does  not, without  more

            evidence  than is offered here, implicate the prohibitions of

            the ADEA.2

                                          II
                                          __

                      We turn to  the issue of sanctions.  In  Das II, we
                                                               ______

            upheld a $1420 award of attorneys' fees and costs against Das

            under Fed. R. Civ. P. 11.  Here, Ciba contended that  Das had

            violated  Rule 11  by  irresponsibly maintaining  this action

            after  three  similar  (and  similarly meritless)  complaints

            against  other corporate defendants had been dismissed.  Ciba

            sought attorneys' fees  and costs in excess of  $12,000.  The

            district court found that Das' claims, filed in October 1989,

            were  brought in good  faith and were  objectively reasonable

            until the filing of his cross motion for summary judgment one

            year  later.    By that  time,  Das  I and  Das  II  had been
                                            ______      _______

            dismissed in the  district court, and Das had  reason to know

            that his  cross motion was  neither well founded in  fact nor

            warranted in existing  law.  Taking into account  Das' pro se
                                                                   ___ __

            status,   the  court  concluded  that  a  $250  sanction  was

____________________

            2.  Nor  do we  read Das'  complaint  to state  a claim  that
            Ciba's  facially  neutral hiring  practices impact  older job
            applicants  more harshly.   The  Court has  not  recognized a
            "disparate  impact"  theory  of  liability  under  the  ADEA.
            Biggins, 113 S. Ct. at 1706.
            _______

                                         -8-

appropriate.    We  find  no  abuse  of  discretion  in  this

            carefully  considered determination.    Anderson v.  Beatrice
                                                    ________     ________

            Foods Co., 900 F.2d 388, 394 (1st Cir.)  ("The trial judge is
            _________

            best  positioned  to   decide  what  sanction  best   fits  a

            particular  case or best responds to  a particular episode or

            pattern  of errant  conduct."), cert.  denied,  498 U.S.  891
                                            _____  ______

            (1990).

                      The   defendant-appellee    requests   costs    and

            reasonable attorneys' fees  for defending this appeal.   When

            Das, who has proceeded pro se throughout, noticed this appeal
                                   ___ __

            in January 1992, he knew that the same arguments advanced now

            had been rejected  in Das I, Das  II, and Das III  and should
                                  _____  _______      _______

            have realized that no valid  grounds for appeal existed here.

            Considering this litigation history,  the frivolous nature of

            this appeal, and  taking into account Das' pro  se status, we
                                                       ___  __

            assess double costs and damages in  the amount of $500.  Fed.

            R. App. P. 38; see La  Amiga del Pueblo, Inc. v. Robles,  937
                           ___ __________________________    ______

            F.2d 689,  692 (1st Cir. 1991); N.E. Alpine Ski Shops v. U.S.
                                            _____________________    ____

            Divers Co., 898 F.2d 287, 291 n.1 (1st Cir. 1990).
            __________

                      The  judgment of  the district  court  is affirmed;
                      ___________________________________________________

            double costs and $500 awarded to the appellee.
            _____________________________________________

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