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[NOT FOR PUBLICATION]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.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Joseph Anthony Fausto on brief pro se.

_____________________
Donald K. Stern, United
________________

States Attorney,

and Thomas E. Kanw

_______________

Assistant United States Attorney, on brief for appellee.

____________________

August 29, 1995

____________________

Per Curiam.
___________

Fausto

disposing

against

appeals

of

his

pro
___

Plaintiff-appellant

se
__

from

claim that

entry

the

Air

of

Joseph

summary

Anthony

judgment

Force discriminated

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

forth in the

need only

provide a

at an

was

position;

and accurately

Air

one

that

Force

The

located

evidence in the record

of eight

the

On May

candidates

candidates

interviews; that Fausto

were

in

Officer,

Wilmington,

establishes that

interviewed

scored

for this

after

received the lowest score;

Fausto's low score was due,

we

29, 1984,

of Administrative

facility

set

and order, and

brief summary here.

for the position

Massachusetts.

Fausto

fully

district court's memorandum

Fausto applied

GS-11,

is

their

and that

in part, to his poor performance

during his oral interview.1

highest scoring candidate,

declined for

remaining

job

was

There is some evidence that the

a woman, was offered the

personal reasons.

In any

event, none

candidates was offered the position.

restructured

as

GS-9

job and

of the

Instead, the

developmental

position,

____________________

1.

Fausto suggests,

other

interviewees

without
never

evidentiary

existed.

In

basis,

that

addition,

the

Fausto

submitted his own affidavit proclaiming that he had performed

well during his oral interview.

reannounced, and

woman

who

eventually offered to Rosemary

had

been

shouldering

many

Tremblay, a

of

the

job's

remedies,

Fausto

responsibilities for some months.

Having

exhausted

filed suit in

John J.

Welch,

his administrative

the district court

Jr.,

Acting Secretary

alleging discriminatory

of the

Civil Rights Act

parties

moved for

relying

on the

against defendant-appellee

of

the

Air

treatment in violation of

of 1964, 42

summary judgment.

three-stage,

U.S.C.

Force,

Title VII

2000e.

The district

Both

court,

burden-shifting framework

set

forth

in McDonnell Douglas Corp. v.

_________________________

Green,
_____

411 U.S.

(1973), found that Fausto had established a prima facie

_____ _____

of discrimination.

Force

The court

successfully

discrimination

had

rebutted

arising from

articulating a legitimate,

decision,

found, however, that

Fausto's

the

prima
_____

792

case

the Air

presumption

facie case
_____

of

by

non-discriminatory reason for its

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

the Air Force.2

____________________

granted summary judgment in

favor of

2.

Fausto

also alleges

victim of retaliation
Employment

his complaint

that he

for filing a complaint with

Opportunity

granted summary judgment

the ground that

in

Commission.

The

the Equal

district

for the Air Force on

Fausto failed to present a

was the

court

this claim on

prima facie case

_____ _____

-3-

II.

The basic order and allocation

Title VII

discriminatory treatment

of burdens of proof in a

case was

limned by

the

Supreme Court in

McDonnell Douglas, 441 U.S.

_________________

expounded in St. Mary's Honor Ctr.

_____________________

(1993).

Where,

discrimination,

as here,

there

the plaintiff

at 802-05, and

v. Hicks, 113 S. Ct. 2742

_____

is no

bears the

direct evidence

of

initial burden

of

establishing a prima facie case of discrimination.

_____ _____

v. Stratus Computer, Inc., 40

_______________________

cert. denied, 115

_____________

establishes

employer

a prima
_____

to

reason for its

S. Ct.

F.3d 11, 15 (1st

1958

facie case,
_____

articulate

decision.

(1995).

If the

the burden

See Smith
___ _____

Cir. 1994),

plaintiff

shifts to

the

legitimate,

non-discriminatory

See Mesnick v.
___ _______

General Elec. Co.,

_________________

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

reason for its action is

at 16.

viewing

We

review the

the

therefrom, in

summary

is

a pretext

discriminatory.

grant of

evidence,

and

Woodman v.
_______

that

the

the true

See Smith, 40 F.3d

___ _____

summary judgment

reasonable

a light most favorable to

judgment.

and

de novo,
__ ____

inferences

the party resisting

Haemonetics Corp., 51
__________________

F.3d

1087, 1091 (1st Cir. 1995).

____________________

of retaliation.

Fausto does not argue that

and we deem the issue waived.

-4-

this was error,

A.

Defendant's Burden of Production

Once

Fausto

discrimination,

legitimate,

decision.

made out

the Air Force

non-discriminatory

prima
_____

facie case
_____

was required to

reason

for

of

gender

articulate a

its

adverse

Fausto argues that, in the procedural posture of a

motion for summary judgment, the district court impermissibly

judged

the credibility of

the Air Force met its

on

Milton
______

determining that

Fausto also contends, relying

645

F.2d 1070,

low score, relative to the

who were interviewed,

selection.

burden.

v. Weinberger,
__________

1981), that his

the affiants in

could not be used to

1079

(D.C. Cir.

other candidates

justify his non-

These arguments fail.

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

a burden of production; it must introduce evidence

"taken as true,"

would permit an inference that

which, if

there was a

non-discriminatory reason for the adverse action.

Hicks, 113
_____

S. Ct.

In Milton,
______

the

at 2748.

District

rankings of

of

Second, Milton is inapposite.

______

Columbia Circuit

candidates before

their

held

that

the relative

interviews could

not,

alone, serve as a legitimate

the

appellants

official did

decision.

where

it was

not rely solely

See Milton,
___ ______

reason for the non-selection of

apparent

that

the selecting

on these rankings to

645 F.2d at

1079.

In the

make his

instant

case, the relative

rankings introduced by the Air Force were

final

the

rankings of

candidates after

-5-

their

interviews.

Moreover,

the

Air

Force

demonstrating that Fausto's

the

introduced

interview went

selecting officials believed

perform the job.

Under

other

evidence

poorly and

he lacked the

that

capacity to

the circumstances, the Air Force met

its burden of production.

B.

Plaintiff's Burden of Showing Discriminatory Animus

At

the third and

proffer

final stage,

sufficient evidence to

Fausto was

prove by a

required to

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

Force

redacted

identified them

summary judgment

these

candidates

fabricated.

Cir. Aug.

See
___

the

suggestion, the fact that

names

solely

of

by their

motion

the

sex

other

the Air

candidates

for purposes

of

does not support an inference

did not

exist or

that their

Byrd v. Ronayne, 1995 WL 461827

____
_______

9, 1995) (summary

judgment cannot be

and

its

that

scores were

at *3 (1st

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))).

___________________

We also reject Fausto's suggestion that summary judgment

was improper

because he

submitted evidence

from which,

he

-6-

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

the

position

Tremblay.3

female

of administrative

The

unrebutted

candidates

restructure the

job

were

evidence

passed

makes

officer

over

improbable

than

that

in

the

was Rosemary

both

the

male

decision

inference

and

to

that

Tremblay was offered the position at a lower grade because of

her gender.

Fausto

had

interviewed

bias was

More importantly, the unrebutted

the

lowest

renders

ranking

of

implausible the

a motivating factor

the

evidence that

eight

inference

in the decision not

candidates

that gender

to select

him.

Cf. Gilty v. Village of Oak Park, 919 F.2d 1247,

___ _____
____________________

(7th

Cir. 1990) (upholding

grant of summary

1253

judgment where

race discrimination claimant would have placed no higher than

fifth

on the

eligibility list

alleged discrimination).

Affirmed.
________

even in

the absence

of the

____________________

3.

Fausto submitted a

copy of his

form SF-171, a

standard

government form providing detailed employment history,

copy of Rosemary Tremblay's resume.

-7-

and a