Fausto v. Welch

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                     



                                 ____________________


No. 94-2176 



                                JOSEPH ANTHONY FAUSTO,



                                Plaintiff, Appellant,



                                          v.



                                 JOHN J. WELCH, JR.,

                            ACTING SECRETARY OF AIR FORCE,



                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



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



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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                                 ____________________



            Joseph Anthony Fausto on brief pro se.
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            Donald K.  Stern, United  States Attorney,  and Thomas E.  Kanwit,
            ________________                                _________________

        Assistant United States Attorney, on brief for appellee.


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                                   August 29, 1995

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Per  Curiam.   Plaintiff-appellant  Joseph  Anthony
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            Fausto   appeals  pro  se  from  entry  of  summary  judgment
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            disposing  of  his  claim that  the  Air  Force discriminated



            against  him, based on his gender, when it failed to hire him



            as an administrative officer.  For the following  reasons, we



            affirm.



                                          I.



                 The  relevant background  is  fully  and accurately  set



            forth in the  district court's memorandum  and order, and  we



            need only  provide a  brief summary here.   On May  29, 1984,



            Fausto applied  for the position  of Administrative  Officer,



            GS-11,  at an  Air  Force  facility  located  in  Wilmington,



            Massachusetts.  The  evidence in the record  establishes that



            Fausto  was  one  of eight  candidates  interviewed  for this



            position;  that  the  candidates   were  scored  after  their



            interviews; that Fausto  received the lowest score;  and that



            Fausto's low score was due,  in part, to his poor performance



            during his oral interview.1   There is some evidence that the



            highest scoring candidate,  a woman, was offered the  job and



            declined for  personal reasons.   In any  event, none  of the



            remaining  candidates was offered the position.  Instead, the



            job  was  restructured  as  a  GS-9  developmental  position,


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            1.  Fausto suggests,  without  evidentiary  basis,  that  the

            other  interviewees  never  existed.    In  addition,  Fausto

            submitted his own affidavit proclaiming that he had performed

            well during his oral interview.  



reannounced, and  eventually offered to Rosemary  Tremblay, a



            woman   who  had   been  shouldering   many   of  the   job's



            responsibilities for some months.



                 Having  exhausted  his administrative  remedies,  Fausto



            filed suit in  the district court  against defendant-appellee



            John J.  Welch,  Jr.,  Acting Secretary  of  the  Air  Force,



            alleging discriminatory  treatment in violation of  Title VII



            of the  Civil Rights Act  of 1964, 42  U.S.C.   2000e.   Both



            parties  moved for  summary judgment.    The district  court,



            relying  on the  three-stage,  burden-shifting framework  set



            forth  in McDonnell  Douglas  Corp. v.  Green,  411 U.S.  792
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            (1973), found that Fausto had established a prima facie  case
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            of discrimination.   The court  found, however, that  the Air



            Force  successfully   had   rebutted   the   presumption   of



            discrimination  arising from  Fausto's  prima  facie case  by
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            articulating a legitimate,  non-discriminatory reason for its



            decision,  namely, Fausto's low  candidate ranking.  Finally,



            the court concluded that Fausto had failed to submit evidence



            sufficient  to permit a  reasonable factfinder to  infer that



            the Air Force discriminated against him because he is a male.



            Accordingly, the court  granted summary judgment in  favor of



            the Air Force.2



                                
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            2.  Fausto  also alleges  in  his complaint  that he  was the

            victim of retaliation  for filing a complaint with  the Equal

            Employment  Opportunity  Commission.     The  district  court

            granted summary judgment  for the Air Force on  this claim on

            the ground that  Fausto failed to present a  prima facie case
                                                         _____ _____



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II.



                 The basic order and allocation  of burdens of proof in a



            Title VII  discriminatory treatment  case was  limned by  the



            Supreme Court in  McDonnell Douglas, 441 U.S.  at 802-05, and
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            expounded in St. Mary's Honor Ctr.  v. Hicks, 113 S. Ct. 2742
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            (1993).   Where,  as here,  there  is no  direct evidence  of



            discrimination,  the plaintiff  bears the  initial burden  of



            establishing a prima facie case of discrimination.  See Smith
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            v. Stratus  Computer, Inc., 40  F.3d 11, 15 (1st  Cir. 1994),
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            cert.  denied, 115  S. Ct.  1958  (1995).   If the  plaintiff
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            establishes  a prima  facie case,  the burden  shifts to  the
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            employer  to  articulate   a  legitimate,  non-discriminatory



            reason for its  decision.  See Mesnick v.  General Elec. Co.,
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            950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 504 U.S. 985
                                               ____________



            (1992).    Finally, if  the  employer meets  its  burden, the



            plaintiff must introduce sufficient evidence to show that the



            employer's  justification  is  a pretext  and  that  the true



            reason for its action is  discriminatory.  See Smith, 40 F.3d
                                                       ___ _____



            at 16.   We  review the  grant of  summary judgment  de novo,
                                                                 __ ____



            viewing   the  evidence,   and   the  reasonable   inferences



            therefrom, in  a light most favorable to  the party resisting



            summary  judgment.   Woodman v.  Haemonetics  Corp., 51  F.3d
                                 _______     __________________



            1087, 1091 (1st Cir. 1995).


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            of retaliation.   Fausto does not argue that  this was error,

            and we deem the issue waived.  



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A.  Defendant's Burden of Production



                 Once  Fausto  made out  a  prima  facie case  of  gender
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            discrimination,  the Air Force  was required to  articulate a



            legitimate,   non-discriminatory  reason   for  its   adverse



            decision.  Fausto argues that, in the procedural posture of a



            motion for summary judgment, the district court impermissibly



            judged  the credibility of  the affiants in  determining that



            the Air Force met its  burden.  Fausto also contends, relying



            on  Milton  v. Weinberger,  645  F.2d 1070,  1079  (D.C. Cir.
                ______     __________



            1981), that his  low score, relative to the  other candidates



            who were interviewed,  could not be used to  justify his non-



            selection.  These arguments fail.



                First, an employer's burden at the second stage is merely



            a burden of production; it must introduce evidence  which, if



            "taken as true,"  would permit an inference that  there was a



            non-discriminatory reason for the adverse action.  Hicks, 113
                                                               _____



            S. Ct.  at 2748.   Second, Milton is inapposite.   In Milton,
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            the  District  of  Columbia Circuit  held  that  the relative



            rankings of  candidates before  their  interviews could  not,



            alone, serve as a legitimate  reason for the non-selection of



            the  appellants  where  it was  apparent  that  the selecting



            official did  not rely solely  on these rankings to  make his



            decision.   See Milton,  645 F.2d at  1079.   In the  instant
                        ___ ______



            case, the relative  rankings introduced by the Air Force were



            final  rankings of  the  candidates after  their  interviews.


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Moreover,   the   Air   Force   introduced   other   evidence



            demonstrating that Fausto's  interview went  poorly and  that



            the  selecting officials believed  he lacked the  capacity to



            perform the job.  Under  the circumstances, the Air Force met



            its burden of production.



                 B.  Plaintiff's Burden of Showing Discriminatory Animus



                 At  the third and  final stage,  Fausto was  required to



            proffer  sufficient evidence to  prove by a  preponderance of



            the evidence that the Air Force's  justification was merely a



            pretext for gender discrimination.  Woodman, 51 F.3d at 1091-
                                                _______



            92.  We are persuaded that Fausto  failed to meet this burden



            essentially for the reasons stated by the district court.  We



            add the following.



                 Contrary to Fausto's  suggestion, the fact that  the Air



            Force   redacted  the  names  of  the  other  candidates  and



            identified them  solely  by their  sex  for purposes  of  its



            summary judgment  motion  does not support an inference  that



            these  candidates  did not  exist or  that their  scores were



            fabricated.  See  Byrd v. Ronayne, 1995 WL 461827  at *3 (1st
                         ___  ____    _______



            Cir. Aug.  9, 1995) (summary  judgment cannot be  defeated by



            reliance "upon conclusory allegations, improbable inferences,



            and  unsupported speculation"  (quoting Medina-Munoz  v. R.J.
                                                    ____________     ____



            Reynold Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))). 
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                 We also reject Fausto's suggestion that summary judgment



            was improper  because he  submitted evidence  from which,  he


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claims, it could be inferred that he was better qualified for



            the  position  of administrative  officer  than  was Rosemary



            Tremblay.3   The  unrebutted  evidence  that  both  male  and



            female  candidates  were  passed  over  in  the  decision  to



            restructure the  job  makes  improbable  the  inference  that



            Tremblay was offered the position at a lower grade because of



            her gender.   More importantly, the unrebutted  evidence that



            Fausto  had  the  lowest  ranking  of  the  eight  candidates



            interviewed  renders  implausible the  inference  that gender



            bias was  a motivating factor  in the decision not  to select



            him.  Cf. Gilty v. Village  of Oak Park, 919 F.2d 1247,  1253
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            (7th  Cir. 1990) (upholding  grant of summary  judgment where



            race discrimination claimant would have placed no higher than



            fifth  on the  eligibility list  even in  the absence  of the



            alleged discrimination).



                 Affirmed.
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            3.  Fausto submitted a  copy of his  form SF-171, a  standard

            government form providing detailed employment history,  and a

            copy of Rosemary Tremblay's resume.



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