Joler v. Scott Paper Company

Opinion

USCA1 Opinion

August 31, 1995       [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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        No. 94-2196



                                   LINDA L. JOLER,



                                Plaintiff, Appellant,



                                          v.



                                 SCOTT PAPER COMPANY,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ____________________



            David  G. Webbert with whom  Law Offices of Phillip E. Johnson was
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        on briefs for appellant.

            William J. Kayatta, Jr. with whom  B. Simeon Goldstein and Pierce,
            _______________________            ___________________     ______

        Atwood, Scribner, Allen, Smith & Lancaster were on brief for appellee.
        __________________________________________


____________________


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BOUDIN,  Circuit Judge.   Linda  Joler, a  supervisor at
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            Scott  Paper  Company's paper  mill  in  Winslow, Maine,  was



            discharged  In March  1992  as part  of  a "downsizing"  that



            eliminated 35  percent of  the salaried employees.   Charging



            gender  discrimination, Joler  sued  Scott  in  the  district



            court, primarily under Title  VII of the Civil Rights  Act of



            1964, 42 U.S.C.    2000e et. seq.   Joler also claimed  under
                                     ________



            the Maine Human  Right Act,  5 M.R.S.A.     4571-72, but  the



            parties have not sought  to distinguish the state claim  from



            the federal claim.



                 After discovery, Scott moved  for summary judgment. In a



            written decision  the magistrate  judge recommended that  the



            motion be granted.   On October 31, 1994, the  district judge



            adopted  the findings  and recommendation  of the  magistrate



            judge without elaboration.  Joler now appeals.   Joler's most



            substantial  claim on  appeal  is factual,  namely, that  she



            offered enough evidence of discrimination to justify a trial.



                 The framework for evaluating the evidence in a Title VII



            case  depends  on whether  the charge  is one  of intentional



            discrimination or  of disparate impact, Griggs  v. Duke Power
                                                    ______     __________



            Co.,  401 U.S. 424 (1971);  in this case,  only the former is
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            alleged.    Indeed,   the  layoff   actually  increased   the



            percentage  of  female  first  line   supervisors  remaining.



            Joler's claim,  therefore, depends  on a showing  that gender



            bias was the  motive, or at least a motive,  in selecting her
                                              _


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for discharge.  See Price Waterhouse v. Hopkins, 490 U.S. 228
                            ___ ________________    _______



            (1989);  Woods v. Friction  Materials, Inc, 30  F.3d 255, 260
                     _____    ________________________



            (1st Cir. 1994).



                 In Title VII cases, once the employee makes out a "prima
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            facie"  case,  the  employer  must  articulate  a  legitimate
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            nondiscriminatory reason for the discharge.  St. Mary's Honor
                                                         ________________



            Ctr. v. Hicks, 113  S. Ct. 2742, 2747-56 (1993);  Texas Dep't
            ____    _____                                     ___________



            of Community Affairs v. Burdine, 450 U.S. 248, 253-55 (1981);
            ____________________    _______



            McDonnell Douglas Corp. v.  Green, 411 U.S. 792, 802  (1973).
            _______________________     _____



            But neither burden is  a heavy one and, for  purposes of this



            appeal,  Scott seemingly concedes that a prima facie case was
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            made out  and Joler  concedes that  Scott did  articulate the



            required explanation.



                 While  the  burden  to  prove  Scott's  improper  motive



            remained with Joler, she  could avoid summary judgment simply



            by showing that substantial evidence supported  her position.



            Fed. R. Civ.  P. 56(c); Pagano  v. Frank,  983 F.2d 343,  347
                                    ______     _____



            (1st  Cir. 1993).   In  evaluating the evidence  tendered, we



            draw all reasonable inferences in favor of Joler as the party



            opposing summary judgment, and we review de novo the district
                                                     _______



            court's  decision to grant summary  judgment.  Id.   The bare
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            facts are these:



                 Joler  began  working  at  the mill  in  1975,  advanced



            several steps up  the ladder,  and in 1987  became the  first



            female  supervisor in  the mill's  Recycling Department.   In


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fall 1991, Scott  ordered the  mill's management  to cut  the



            salaried  work  force  by  about  35  percent.    The  mill's



            management,  who made  the  selection using  guidelines  from



            Scott's headquarters, comprised  the mill manager,  its human



            resources director, and the heads  of each department.  Every



            member of this team was a male.



                 The team divided all  salaried employees into job groups



            made up of those who, regardless of  their department, needed



            similar  skills  for  their  jobs; Joler,  for  example,  was



            grouped among 27 operating floor leaders throughout the mill.



            Each  employee  was  then  graded numerically  based  on  job



            skills, versatility and length of  service.  The employees in



            each job  group were then ranked in order of the their scores



            and those with the lowest scores were selected for discharge.


Joler's  score  placed her  as  number 23  among  the 27



            operating  floor leaders.    Scott discharged  the 10  lowest



            scoring operating floor leaders,  comprising nine men and one



            woman  (Joler).    After  the  downsizing,  17  such  leaders



            remained,  of whom four were women, one having been promoted.



            Thus, the proportion  of female leaders in  the mill actually



            rose; but in the Recycling Department, the number of  leaders



            changed from three men and one woman (Joler) to five men, two



            of the men being shifted from other departments.


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Joler's case,  as summarized  on the appeal,  amounts to



            this: Joler's  record at the mill was a good one; the two new



            leaders added to the  Recycling Department had poorer records



            than Joler's;  Joler's ranking  was adversely affected  by an



            incident in which she complained  about a subordinate who had



            made sexist comments about her; the mill had a history of too



            few women  and of  tolerating sexism;  the rating scheme  was



            biased against  Joler  and women  in  general; and  the  mill



            culpably  destroyed  documents  and concealed  its  decision-



            making process.



                 If  all of these claims  were taken at  face value, they



            could add up to a formidable  case.  But except for the first



            one--Joler was  a good  employee--the claims  are overstated,



            incomplete or in two important instances largely unsupported.



            Whether  what is  left  is enough  remains to  be considered.



            Still, it  is of no use  trying to weigh the  wheat until the



            chaff has been separated out.  



                 The two transferred leaders  had flaws in their records,



            as did Joler; but  each was ranked higher overall,  and Joler



            presents no  evidence that  their rankings  were deliberately



            overstated.   It is quite  true that there  was some evidence



            that  the  transferees  did  not  perform  in  the  Recycling



            Department as well as  had Joler.  But Joler  was experienced



            there,  and they  were  not.   The reorganization  aimed, and


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permissibly so, to retain generalists who had the flexibility



            to be used in different jobs.



                 Joler's next claim is that she was fired in part because



            of her own recent complaint about sexual harassment by a male



            subordinate.   This  man (Marcel  Moreau) made  at least  one



            sexist  comment to Joler, Scott disciplined  him, and then it



            softened the  discipline greatly  when his  union complained.



            One or two members of the management group apparently thought



            that Joler's  handling of the incident reflected badly on her



            skills in dealing with subordinates, but she herself admitted



            to problems in this sphere.



                 There is more substance to Joler's claim that women were



            underrepresented among  the mill's  employees and  there were



            episodes of sexist comments by various of its male employees.



            But  there is no evidence that  these background facts, which



            are  sadly quite common, had any effect on Joler's ratings or



            on  the rating process.   On the contrary,  there is evidence



            that  partly on  account  of this  history,  Scott made  some



            efforts to assure  that the downsizing  did not decrease  its



            female-to-male ratio.



                 We come,  then, to the  heart of the  matter--the charge



            that  Joler's own  score and the  rating process  were biased



            against women.   Joler's score was  principally determined by



            her department  head, Fletcher,  and her brief  says outright



            that he was motivated by gender bias stemming from the Moreau


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incident.  On deposition, Joler herself  said that apart from



            her discharge  she  never saw  Fletcher discriminate  against



            women,  nor   is  there   any  objective  evidence   that  he



            discriminated.



                 About the most that Joler's  brief offers is his alleged



            statement to her, when he informed her of the discharge, that



            "you  can  cry now."   If  Fletcher  made this  statement (he



            denies it but we  will assume arguendo that  he made it),  it
                                          ________



            likely  reflects a  stereotype.   But Fletcher  had supported
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            Joler's promotion to leader over two competing males, and his



            ultimate appraisal of Joler was generally consistent with his



            appraisals before the Moreau incident.  The charge of bias is



            simply without basis.



                 Having  reviewed the  evidence, we  also reject  Joler's



            claim  that the  "versatility"  component of  the job  skills



            criteria revealed a bias against women.  The resulting scores



            for men and women in this category can be viewed in different



            ways, some favorable  to women and some to  men.  But despite



            claims to the contrary in Joler's brief, there is no evidence



            that the criterion or the scores were deliberately tilted and



            almost  none that  the criterion  had a  significant negative



            effect upon women as a group.



                 We turn  finally to  the charge of  document destruction



            and  concealment.  Of course, a party's efforts to destroy or



            conceal   evidence  may   give  rise   to  an   inference  of


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consciousness  of  guilt,  and  this  self-appraisal  can  be



            weighed  with other  evidence in  the  case.   But businesses



            discard materials all  the time.  An  inference of spoilation



            depends on  underlying facts that would  permit a fact-finder



            to  conclude that those who destroyed the materials did so in



            "bad faith or . . . consciousness of a weak case."  Allen Pen
                                                                _________



            Co. v. Springfield Photo Mount Co., 653 F.2d 17, 23 (1st Cir.
            ___    ___________________________



            1981).  No such evidence is present here.



                 After   the  downsizing,  the   rating  group  kept  the



            assessment sheets for every employee, handwritten comments on



            the sheets,  and scores  assigned to each  employee by  every



            rater.    Perhaps  unwisely,  the  group  discarded  separate



            handwritten  notes made  by  individual  managers during  the



            discussion  and  a set  of loose  flip  charts, one  of which



            contained a more detailed breakdown of the scoring regime for



            versatility than  was  contained in  the  written  assessment



            plan.



                 But  what  was  retained  by  Scott  makes  it  easy  to



            reconstruct  almost all of the  rating process.   There is no



            indication that  anything was  destroyed in order  to prevent



            its  use  in  litigation  or  that  anything  lost  contained



            information helpful to  Joler.  On  these facts, no  rational



            basis exists for inferring  that Scott engaged in spoilation.



            The magistrate judge did not err in rejecting the inference. 


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It is  time to sum  up.   There is  simply not  enough



            evidence to  underpin a  charge that Joler  was fired  either



            solely or in part because of gender discrimination.  Not only



            would the trial  judge be  compelled to direct  a verdict  if



            such a case were presented  to a jury, but we have  no reason



            to  think that  the gaps  and weaknesses  could be  filled by



            anything likely to  arise at  trial.  Coll  v. PB  Diagnostic
                                                  ____     ______________



            Systems, Inc., 50 F.3d  1115, 1121 (1st Cir. 1995);  see also
            _____________                                        ________



            10  C.  Wright, A.  Miller &  M.  Kane, Federal  Practice and
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            Procedure   2713.1 (2d ed. 1983). 
            _________



                 Joler  criticizes the magistrate judge's analysis of the



            facts  and  the  weight  he assigned  to  certain  pieces  of



            evidence.   There is  no  need to  consider these  criticisms



            separately.  Because this court  reviews the grant of summary



            judgment de novo,  we have to  make our own appraisal  of the
                     _______



            record.   Even  if we  were to  disagree with  the magistrate



            judge on a particular point, our result would be the same and



            that is sufficient.   Mesnick v. General Elec. Co.,  950 F.2d
                                  _______    _________________



            816, 822 (1st Cir. 1991).



                 Joler's remaining claims of "legal" error have no force.



            The "mixed  motive" provision of  the 1991 amendments  to the



            statute,  42  U.S.C.     2000e-5(g)(2)(B),   did  in  certain



            respects  overrule  the  Supreme  Court's  decision in  Price
                                                                    _____



            Waterhouse  v. Hopkins, 490 U.S. 228 (1989), but in this case
            __________     _______



            no  improper   mixed  motive  was  shown   by  the  evidence.


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Similarly,  we   agree  with   Joler  that  under   Hicks,  a
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            plaintiff's  prima  facie  case,  coupled  with  evidence  of
                         ____________



            pretext, can  sometimes suffice to  defeat summary  judgment,



            see  Woods v. Friction Materials, Inc., 30 F.3d 255, 260 (1st
            ___  _____    _______________________



            Cir.  1994); but there is no evidence here sufficient to show



            Scott's asserted reason for the discharge was pretext.



                 This is a  distressing case because of a hardship having



            nothing  to do with  discrimination.  By  all accounts, Joler



            was  an able employee who served Scott with dedication for 16



            years and did not, in any ordinary sense, deserve to lose her



            job.   But it is in  the nature of large  scale reductions in



            force that qualified workers find themselves out of a job for



            economic reasons unrelated to personal fault.  Title VII  was



            not intended to remedy that problem.



                 Affirmed. 
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