Professional Documents
Culture Documents
March 8, 1996
_________________________
No. 95-1556
KATHY SMITH,
Plaintiff, Appellant,
v.
Defendant, Appellee.
_________________________
ERRATA SHEET
ERRATA SHEET
The
issued on February
12, 1996, is
corrected as follows:
On
page 21,
1996)"
line 15,
change "(1st
Cir. 1995)"
to
"(1st Cir.
_________________________
No. 95-1556
KATHY SMITH,
Plaintiff, Appellant,
v.
Defendant, Appellee.
_________________________
_________________________
Before
_________________________
and
with whom
were
on brief,
for
appellant.
_________________________
SELYA,
SELYA,
invites
us to
under Title
Circuit Judge.
Circuit Judge.
_____________
overrule
VII of the
2000e-2000e-17 (1988)
law
causes
discharge.
I.
I.
of
action
In this
the district
for
breach
plaintiff
court's adverse
(Title VII),
appeal, the
of 1964, 42
and to reinstate
of
contract
decision
U.S.C.
her common
and
BACKGROUND
BACKGROUND
wrongful
We
chronicle the
events that
preceded the
filing of
A.
A.
Chronology of Events.
Chronology of Events.
____________________
Damar
Plastics
operated
a job
shop
crafted
custom
&
Metal
Fabricators,
in Somersworth,
components
for
New
Inc.
(Damar)
Hampshire, where
high-technology
it
applications.
steadily through
production
the ranks
manager
almost a
In late
owner
1987, after an
and
reassignment
until she
reached
decade later.
the position
In
that capacity,
general
manager),
to a
different post
she
dates.
Robinson (Damar's
requested
having no
of
and
obtained
responsibility for
production scheduling.
On December
business
and assets.
acquired Damar's
Hickman
(production
Morse &
control);
Robert
Lane
Michael
(shipping); Ronald
Paradis (production/machining);
Smith.
Though
considered
to
Hickman's
not
be a
titled,
Smith
de facto
inadequacies,
testified
manager
that
who, largely
performed many
of
the
she
was
because of
duties of
the
and
too few
Hickman.
manager
Lane.
Within
days of
the
closing, he
fired
(who
personnel),
Smith.
Indians.
had
he
authority
interviewed
In the aftermath
To
fill
the void
to
hire,
number
fire,
of employees,
of this review,
created
and
by the
discipline
including
two
executive-level
production
All
substituted
Guimond
management
from
reconfigured
Shevenell
and
Smith
told,
Morse's
for
Robinson
seven to
management
initial
five.
team
reorganization
and
In
pared
addition to
comprised
Paradis
efforts
second-echelon
Guimond, the
(machining);
(materials).
responsibilities, Morse
again in March),
In
recognition
increased
twenty-five percent.
of Smith's
weekly stipend by
roughly
that
Morse,
a tiny
company,
had no
Bond
a maternity leave.
formal maternity
leave policy.
Bond nonetheless honored Smith's request and assured her that her
position
several
was "secure."
meetings
with Guimond,
Shevenell,
and
Paradis.
The
supervisors
and
Gilday,
perform her
to
Guimond informed
arranged
be discharged,
again
upon
indicated that,
and Smith
While
would
these
newly-hired
clerical
functions.
Smith that
would
her
for a
in all
from
her that
maternity
to assume
presumably
she would
leave.
a portion
would
Kelly
the
way,
Shevenell likely
be promoted
Guimond
be asked
changes
Along
either Paradis or
and told
return
secretary,
also
be demoted,
of his
warrant
duties.
increased
On
planning to
April 7,
Smith began
her maternity
fall," held
1989,
leave,
She gave
Paradis.
To
her
surprise, the
plant
functioned very
well.1
that
she
wished
to
return
to
work
one
week
Guimond
earlier
than
____________________
1During
this same
time frame,
the company
eliminated the
with
originally
desired
anticipated.
more children,
Guimond inquired
and
Smith replied
co-worker,
about whether
Smith
affirmatively.
The
Vendasi
Guimond
and
knowledge
again
demanded
an
explanation.
Smith contacted
Guimond
denied
any
Guimond repeated
manager's position
to eliminate it.
suggestion.
she had
been discharged.
Nevertheless, a
be
Smith rejected
the
to several customers.2
Following Smith's
duties
to Paradis
in his
new capacity
most of her
as operations
manager.
both
lower-ranking
assistant
employees, Peter
manager
Lapanne
positions (though
and
Brian Hoffman,
evidence adduced
to
at trial
____________________
2The company
and trial
testimony
back
as
1984,
and
had been an
that
responsibilities or received
with
functions
of the
man
any salary
Smith's
any
far
new
connection
former position.
reorganization wound
assumed
increase in
Gilday continued to
associated with
second round
neither
assistant manager as
down,
When
the
the plant
had
Paradis (operations);
Shevenell
(manufacturing); and
Seeger (sales)
in lieu
of the
original
seven.
B.
B.
Smith
alleging,
sued
inter
_____
Procedural History.
Procedural History.
__________________
Morse
alia,
____
in
New
wrongful
Hampshire
discharge
state
court
on
gender
based
breach of contract.
1331,
1343(c)(3),
(conferring
claims).
federal district
1441,
ancillary
1446;
jurisdiction.
see
___
jurisdiction
also
____
over
Title VII,
See 28
___
28
U.S.C.
U.S.C.
appended
1367
nonfederal
Early
summary judgment.
motion
on
the
distress claims.
in the
The
common
See
___
proceedings,
Morse
district court
law
wrongful
moved
for
partial
discharge
the
and
emotional
90-361-S,
Several
of contract
claim to a jury.3
At the close
the
defendant's
disbanded
favor on
the jury.
district judge.
manager's
Title VII
and laid
strategy
to
of the plaintiff's
breach
Morse asserted
position
overarching
The
the
of
contract
case proceeded
that it scrapped
off the
streamline
appellant
claim
in
and
before the
the materials
as part
top-heavy
of an
managerial
structure, and that even if Smith had not been on maternity leave
The
district
court agreed
See
___
Smith v.
F.W. Morse
and
& Co.,
entered judgment
901 F. Supp.
accordingly.
40, 45
(D.N.H. 1995)
_____
_________________
(Smith II).
________
II.
II.
Morse
finding that
A.
A.
Following a
Standard of Review.
Standard of Review.
__________________
of appeals reviews
____________________
(1991) (codified at
authorizes trial
by jury in
that
42 U.S.C.
102, 105
1981a(c)(1)),
occurred prior to
had no right to
See Landgraf
a jury
___ ________
Inc., 114
____
not retroactive).
for proof
________________
By like token,
of "mixed-motive"
discrimination that we
describe in
Act.
See
___
R.
Civ.
P. 52(a),
formulation
of
Regulator Co.,
______________
but affords
applicable legal
63
F.3d
1129,
issues anew.
466
(1st
Cir.), cert.
_____
we may
rules,
1132
review to
see
___
(1st
the trier's
Johnson v.
_______
Cir.
1995).
Watts
_____
The
Indeed,
plenary
denied, 498
______
853 F.2d
not disturb
U.S.
1016,
the district
848 (1990);
1019 (1st
Keyes v.
_____
Cir. 1988).
court's record-rooted
irresistible conclusion
Cumpiano,
________
that
mistake
has been
made.
See
___
__________
findings
This deferential
simpliciter
also
underlying facts.
but
See Cumpiano,
___ ________
of
to inferences
902 F.2d at
drawn
152.
to factual
from
Similarly,
if the trial
court's reading of
an end.
See Foster v.
___ ______
the
is at
B.
B.
Title VII
employment practice
for an
employer to discharge
an individual
because of
her sex.
See
___
42 U.S.C.
2000e-2(a)(1).
After the
Supreme
Court
held
discrimination on the
that
this phraseology
did
not
proscribe
VII
Pub. L. 95-555,
1,
at 42
U.S.C.
2000e(k)).
The terms
"because of sex" or
of sex"
include,
because
of or
childbirth,
but are
on
or
the
not
basis of
related medical
limited
to,
pregnancy,
conditions;
pregnancy, childbirth,
or
conditions
related
medical
for all
shall
be
employment-related
ability or
inability to work.
42
U.S.C.
company,
2000e(k).
Thus, at
Title VII's
ban on
gender
discrimination encompassed
pregnancy-based discrimination.
Like other
employee claiming
disparate
treatment
or
disparate
impact
theory.
See
___
generally Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579_________ ____________________
______
80
(1978)
(explaining
the
dichotomy).
Here,
the
appellant
In cases
supra
_____
note
discrimination
3,
the
framework
varies depending
on
10
for
Rights Act of
proving
the availability
1991, see
___
intentional
of direct
evidence.
Cir.
See Fields
___ ______
v. Clark Univ.,
___________
F.2d at 153.
Absent
S. Ct. 976
51-52 (1st
of a
"smoking
burden-shifting framework.
v. Burdine,
_______
See
___
v. Green,
_____
411 U.S.
plaintiff
can
discrimination
792, 802
establish
by
(1973).
prima
showing that
(1)
Under
facie
she
this framework,
case
of
is pregnant
pregnancy
(or
has
indicated
performance
nonetheless
an
intention
has
been
to
become
pregnant),
satisfactory,
but
adverse employment
action against
(3)
(2)
her
the
employer
continuing to
job
See,
___
1988).
the adverse employment action, see Cumpiano, 902 F.2d at 153, and
___ ________
at 254-55;
Lipsett, 864
_______
the action.
F.2d at 899.
a legitimate,
See
___
If the
defendant clears
see
___
1991), cert.
_____
denied, 504
______
U.S. 985
(1992),4
and the
(1st Cir.
plaintiff
____________________
4Mesnick
Employment
Title VII.
Act (ADEA), 29
U.S.C.
framework applies in
both
11
(who
of persuasion on
the issue of
discriminatory
employer's
motive
proffered
discrimination,
throughout)
must
justification
then
is
prove
that
pretext
the
for
113 S. Ct.
On the
discernible
that
employment
action
inapposite.
evidence
the
of discriminatory
McDonnell
Douglas
___________________
motive
In
framework
is
say, an
admission by
the
serves to shift
must
decision even if
into account.
it had not
it would have
The latter
characteristic
The seeming
certain
respects,
for
evidence
McDonnell Douglas, on
_________________
other
hand, is
In
comes
one hand,
blurred.
rarely
and
is illusory in
in
line between
Price Waterhouse, on
_________________
those situations,
tidy,
the
classification
____________________
VII litigation.
Title VII
and ADEA
Hence, we
distinguishing between
them.
12
depends on
court
both the
deems
sufficient
to
constitute
of the
proof that
direct
evidence
of
discriminatory animus.
Discretion is
courts
often wisely
questions
if answers
decide
to them
of valor, and
to sidestep
difficult
theoretical
are not
essential to
the proper
prudential approach.
differential
direct
The
trial
evidence
presented,
Morse
had
proven
While we
process
that
framework to a definite
of
gender
tamisage,
Supp. at 44-45.
bypassed any
evidence/circumstantial evidence
preferring to go directly to a
the
court largely
of such
F.
us to pursue
conclusion.
is
important,
there comes
point
at which
slavish
insistence upon process for its own sake serves only to exalt the
trappings
of justice
over its
substance.
Here, the
district
the
illustrate
below, see
___
infra
_____
Part III(C),
And as we
that finding
passes
muster.
C.
C.
Consistent
The Merits.
The Merits.
__________
with the
district court's
approach, Morse
13
it would
same action
manager's
position
pregnant,
took
children.
decision was
this
maternity
not
leave,
found that
pivotal issue.
by placing the
the
or
"that
if
became
to bear
Morse
carried the
It
concluded that
devoir of
Morse's
Guimond
more
and represented an
in
was not
even
materials
appellant
planned
concluded
of the
also
or
effort to economize
based on
whether
The court
persuasion on
the elimination
is
assumed
The court
to
have
to
the same
Id.
___
The crux
of a
downsizing without
violating Title
VII even
though those
included).
1993), cert.
_____
1993);
denied, 114 S.
______
Ct. 1398
1118-19 (1st
(1994);
Cir.
F.2d 100,
Inc., 859
______
F.2d
Hosp.,
_____
________________________
This is merely
14
reflection
jurisprudence:
of a
central
theme that
insofar as Title
permeates
VII is concerned,
the relevant
an employer
by
race,
gender,
characteristic.
pregnancy,
See Foster, 71
___ ______
or
some
other
protected
853 F.2d at
1026; see
___
(1st Cir.
The flip
side of
the
coin, however,
is that
in ADEA case).
an employer
who
the fat
from
practice in
company's
a particular
organizational chart
business
is
environment, the
prudent
employer's
discriminatory
Maresco v. Evans
animus.
See Goldman,
___ _______
Chemetics, 964
985
F.2d
at
1118 n.4;
(2d Cir.
1992);
_______
________________
Against this
backdrop,
we believe
that the
evidence
When Morse
took
and the
managers' responsibilities
Guimond testified
Damar's
reason.
that from
sprawling
the very
organizational
Accordingly,
they
overlapped.5
Bond and
structure
set out
Both
to
that
defied
rhyme
or
compress some
of
the
the responsibility
for
____________________
5To
cite an
manufacturing
example,
between two
Damar split
managers
(Shevenell and
Paradis), a
15
sprawl.
the point,
"because
filled."
too, had
Guimond testified
I had
a position that
Bond testified in
I no
longer felt
the appellant
needed to be
The court
manager's
position would
have been
More to
eliminated within
the same
is supportable.
any other
choice
would
have entailed
court's
view is
bolstered by
apprised
her
significant
of
the
new
loss
In
of
planned
ownership.
when
and
Guimond
assigned
her
other
managers
were
and
increased
her
dismissed.
They
compensation.
the
appellant
maternity leave,
was
pregnant
promoted
the appellant
Bond and
downsizing
responsibilities
engineering
the new
also
and
are inconsistent
her
would
be
with a bias
taking a
six-week
against pregnant
____________________
6Bond
testified
engineering talents.
and experienced
When Morse
manager,
purchased
Damar
discovered
the
that he
decision
that
to
it
its
no such credentials.
could function
retain Paradis
to acquire
and
with
one
Shevenell,
less
and
16
employees.
In the
sitting as
same
because the
to like effect.
In a
judge's prerogative.
See Anthony,
___ _______
To be sure,
conclusion.
less innocuous
Smith
decided to
stay at
home
much so
that
characterized
we, if
free
the
impetus
to care
Smith's
to write
behind
Guimond's
for her
daughter, and
a palimpsest,
the
might
appellant's
so
have
ouster
differently.
inference
But
whether the
have drawn
and
an
See Foster,
___ ______
As long as a
contrary
then it is for the trial court, not the court of appeals, to call
the tune.
the
evidence, the
clearly erroneous."
factfinder's
choice between
views of
them cannot
be
In
17
First, she
did not in
position,
and that the district court's contrary finding, see Smith II, 901
___ ________
F. Supp. at 43,
This asseveration
When
an employer defends
an employment discrimination
like a Dali painting, fade from one image to another only for the
first
image to reemerge
at the blink
of an eye.
See Gallo v.
___ _____
F.3d 1219,
(1990).
Yet,
merely
because
designated
duties
to
position elimination
another employee,
carry out
in addition
otherwise
LeBlanc,
_______
to
reallocated
F.3d
at
already
some or
his own,
within
846;
defense is
all
or
the
Barnes,
______
on
of the
the payroll,
existing work
F.2d
is
fired employee's
because those
896
not defeated
at
duties
are
force.
See
___
1465.
The
can get by with one less helper; it does not necessarily convey a
belief
that the work the employee had been doing was superfluous
indicates that
Smith
fell
into desuetude.
that Lapanne or
Hoffman
had occupied
assumed
materials
any of
the
manager
appellant's
18
former duties;
those
by Paradis
and
reorganization
Gilday).
(which
In
cost
short, the
Smith
her
at least,
second round
job)
bore
of
the
striking
materials
manager).
Given
these facts,
the district
judge's
is
unimpugnable.
The
appellant next
endeavors
to
surmount the
sharp
legal
standard
theoretically
applied
sound
way
by
to
the
climb
trial
the
court.
mountain,
This
see,
___
is
e.g.,
____
F.2d
575, 577 (1st Cir. 1989) (explaining that appellate courts review
case
the hook
follows.
She
dismissing
the
does
not hold.
says that
Title VII
employer, in
discovers that
The
the process of
her position is
appellant's
thesis is
as
prohibits an
employer from
is on maternity
leave even if
rationalizing its
work force,
it for
that reason.
Refined
to bare
essence, this
thesis suggests
that,
since Morse would not have discovered the redundancy at that time
(if ever) but for the fact that Smith took a maternity leave, the
19
firing.7
attempts to
Smith was out on maternity leave, Morse was able to discover that
her
position
was expendable
testimony
which the
appellant
that this
totally
mechanical
fashion,
plays
mischievously
on
the
It
discharge
pregnancy.
an
employee based
on
the
categorical fact
nature of
pregnancy and
pregnancy-related
2000e(k),
her
very
of
and
dismissing an
VII
employee in
maternity leave.
condition within
Title
By the same
thus
the meaning
prohibits
an
of 42
is a
U.S.C.
employer
from
an authorized
confer total
immunity.8
An
an employee
____________________
7We
note
hopelessly
in
passing
circular.
that the
appellant's
Morse demonstrated
reasoning
a firm
is
commitment to
there is no
was
by,
Medical
Leave
this case
Title VII.
Act
If
of 1993,
(codified at 29 U.S.C.
is brought pursuant
the
P.L.
recently enacted
103-3,
107
to, and
is
Family and
Stat. 6
(1993)
20
while
she is
unrelated
to
pregnant
if it
her pregnancy.
does
so for
See,
___
e.g.,
____
Supp.
Troupe v.
______
reasons
May Dept.
_________
an employer may
for a
731
legitimate
a protected class
F.2d 64,
that an
70 (1st Cir.
employer may
pregnancy-induced
1984) (similar).
discharge an
leave so
long as
It follows, then,
employee while
it does
she is
so for
on a
legitimate
Harmonizing these
principles
leads to
the
following
conclusions.
Title
VII mandates
that an employer
must put
an
struthiously
at 738
parturient employee.
See Troupe,
___ ______
employee's
pregnancy, but
. .
. not
her absence
743
(N.D. Ill.
employers to
1993)
(stating that
"the
requires
20 F.3d
by pregnancy").
from work");
F. Supp. 737,
PDA does
not
force
At bottom,
Title VII
the
protected trait
(here,
pregnancy).
The mere
coincidence
____________________
21
rise to
se violation of
suffering
the
workplace
every day
away.
Title
ordinary
slings
she goes to
and
arrows
work and
that
suffuse
every day
the
she stays
come what
may.
eliminate
an
recognized
employer's
manage workers in
business
as the
appellant asks
necessity
and cripple
defense
would
long
industry's ability to
F. Supp. 1199, 1204 (D. Utah 1986) (explaining that Title VII, as
amended
by
the
PDA,
does
not
"preclude
an
employer
from
9Say,
for
maintaining
Passover.
example,
Jewish
employee,
The employer
finds a packet of
simply
that the
have
circumstances,
the
charge
of
the
in
asked
heroin.
on
employee
we think it is
employee for
a particular memorandum.
The
religious leave;
for
the
introducing drugs
into the
memo.
he would
In
such
workplace without
22
for
op. at 13]
slip
Here, the
lacking
between
gravidity.
the
In the
district
court found
employer's
court's
mindset
estimation,
view
of the
appellant
facts.
was
on
That the
maternity
the
requisite
and
the
employee's
Morse discharged
the
discharge took
leave
nexus
place while
possessed
the
considerable
evidentiary
significance
transformed the
but
that
circumstance
neither
III.
III.
We turn
of contract claim.
took
At the
close of her
favor.
court
A.
A.
The
judgment
principles
as a
Standard of Review.
Standard of Review.
__________________
matter of
that inform
law de
same legal
the trial
court's ruling.
Alvarado
________
1993).
(1st Cir.
the
F.3d 74, 77
nonmovant."
23
1076,
1088
(1st
Cir. 1989).
If the
proof,
eyed
from this
standpoint,
permits
conclusion favorable
a reasonable
factfinder
to the movant,
"consider
the
this
approach
credibility of
does
Adams, 829
_____
not
witnesses,
reach only
While
to
must remove
See id.
___ ___
allow
the
court
to
resolve conflicts
in
it pave
the way for every case, no matter how sketchy, to reach the jury.
burden
B.
B.
The Merits.
The Merits.
Fashion House,
_____________
__________
The
that
New
Under
is
parties
who concur
Hampshire law
on very little
governs the
breach of
else
agree
contract claim.
unless an
construction."
employment
Panto
_____
v. Moore Business
______________
(N.H. 1988).
relationship
That
explicitly
is to say,
provides
be at-will.
for
See Butler
___ ______
v.
Walker Power, Inc., 629 A.2d 91, 93 (N.H. 1993) (explaining that
___________________
when
the parties'
expiration").
This
contract of
is
employment is
critically important
silent as
when an
to its
employee
24
any
time,
for any
reason or
no
reason, unless
statute, a
See Panto,
___ _____
Of course,
an employer and
an employee may
alter the
A.2d
at
93; Panto,
_____
sometimes may
employment relationship.
547
A.2d
be accomplished
at
267.
if the
Such
See
___
Butler, 629
______
modification
employer makes
a binding
govern
at 264.
at 265.
and
reasonably certain."
to be
Chasan v.
______
See id.
___ ___
performances
See
___
promises
Standard
job.
rendered
by
each
that the
party are
523
32 (1932)).
the beholder.
last
At best, it
analysis,
the
standard
mathematical precision.
(N.H.
1974).
The
See Sawin
___ _____
provisions
"sufficiently
certain to allow
readily,
to
and
damages."
accord
______
enable
Panto, 547
_____
is
of
reasonable
v. Carr, 323
____
contract
claims of breach
a reasonably
certain
certainty,
not
A.2d 924,
926
need
only
be
to be resolved
computation
of
citations omitted);
25
In the
In this
of
various conversations
the
ensuing
her
she had
patchwork, could
reinstate and
continuing
that
promote her
the
promises
described
by
the
and Bond,
a rational jury,
conclude
buy
with Guimond
following her
employment in
that
Morse offered
maternity
wake of
mulling
such
leave.
to
By
promises, her
evidence
are
of
insufficient
definiteness
to
be
enforceable,
employment relationship,
do
not
modify
the
at-will
any calculation of
not impossible."
We start by attempting
statements
nature of
the disjointed
you are on maternity leave, your job is secure," "you will assume
more
responsibilities on
created
your return,"
you are
"wanted back")
Guimond's statements
did not
component of
the at-will
employment relationship.
at-will employee to
an at-will
A contract to reinstate an
position (from
which she
could
See
___
26
Light v. Centel Cellular Co., 883 S.W.2d 642, 645 n.5 (Tex. 1994)
_____
___________________
relationship
remains
unchanged,
any
"promise made
by
either
employer
or employee
employment is
that is
Allan
that depends
on an
illusory because it is
exclusively within
Farnsworth,
period of
the control
Contracts
_________
additional
of
2.13,
the promisor");
2.14
(2d
ed.
E.
1990)
illusory); cf.
___
at 94 (terming
an analytically
Nor
is
this
the
either the
proposed
nature of
rate
of
only shortcoming
the
supposed
the position
pay.
in
These
Smith was
gaps
to assume or
seemingly
foreclose
her
Concluding,
as we
do, that
the alleged
contract for
reinstatement is
too indefinite
this
our
phase
of
reinstatement theory
own testimony
to
her
as
to be actionable
inquiry.
In
proffered by her
promises
of
employment
F.W. Morse
suggest
contract
for
end."
contrast
counsel, the
stark
does not
to
end
the
appellant's
"indefinitely,"
and
as
If, by this,
lifetime employment,
her
she means
claim
to
also
founders.
27
Hampshire precedents
exist, the
contours
of
contracts
nonetheless confident
view
of such matters.
Corp.,
_____
federal
862
F.2d 944,
for
lifetime
employment.
Cir.
are
949 (1st
We
v. General Motors
______________
1988) (explaining
that a
other jurisdictions);
Moores v.
______
cases in
1105, 1107
out
of
the ordinary,
and insists
that
an offer
contracts as
for lifetime
enforceable.
S.E.2d 271, 274 (W. Va. 1992); Rowe v. Montgomery Ward & Co., 473
____
_____________________
(Ala.
749
1990); Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 381______
_____________________
N.W.2d
representations made by
Measured by
sufficiently tall to
employee
insufficiently definite
to alter
at-will employment);
(finding
that
employment," and
the
terms
"as long
"permanent
as the employee
(Minn. 1936)
employment,"
"life
chooses" established
414 N.W.2d 769, 771-72 (Minn. Ct. App. 1987) (concluding that the
28
only indicated an
at-
IV.
IV.
The
discharge claim
Civ. P. 56.
in advance of trial
Fed. R.
A.
A.
The
judgment
Civil
"if
interrogatories,
the
and
Rules
empower
pleadings,
admissions
a court
to
depositions,
on
file,
grant
summary
answers
together
with
to
the
as a
matter of law."
Fed.
R. Civ. P. 56(c).
We have explored
the
of this rule
in a
compendium of cases,
see, e.g. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314___ ____ ________
________________________
15
43
F.3d 731,
735
(1st Cir.),
cert.
_____
denied, 115
______
S. Ct.
2247
(1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Wynne
______
_____
_____
v.
F.2d 791,
793-94 (1st
Cir.
1992), cert. denied, 113 S. Ct. 1845 (1993); United States v. One
_____ ______
_____________
___
960 F.2d 200, 204 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d
___________
_____
112,
115-16
(1st
Cir.
F.2d 5,
1990); Medina-Munoz
____________
v.
R.J. Reynolds
______________
1990); Garside v.
_______
Osco
____
46, 48-49
(1st Cir.
1990), and
it would
29
"summary
pleadings
judgment's role
and assay
the
is to
pierce the
parties' proof
boilerplate of
in order
the
to determine
whether trial is
actually required."
Wynne, 976
_____
F.2d at
794.
Thus, a Rule 56 motion may end the case unless the party opposing
regard,
that
reasonable
evidence on the
jury, drawing
favorable
In this
point is such
inferences,
could
One Parcel,
__________
960 F.2d
the suit
under
at 204.
By like token,
law
party
opposing
"material" means
the governing
it "in
summary
if the
dispute
outcome of
over it
is
See id.
___ ___
judgment,
See
___
indulging
hospitable to
all
the
reasonable
inferences
improbable inferences,
genuine
issue
of
material
fact is
discernible,
then
If no
brevis
______
Because
reasoning
review
as
the summary
opposed
to
judgment standard
differential
B.
B.
The Merits.
The Merits.
__________
30
factfinding,
is plenary.
requires legal
appellate
New
Hampshire
discharge claim.
law controls
Smith's
pendent wrongful
an
employment decision
"is
not in
the
best interest
of
the
employment contract,"
A.2d 549,
the state's
court below,
available, New
that
an
violation of
law
claim
at-will
employee
public policy.
for
wrongful
had been
entertain a complaint
wrongfully
Therefore, the
discharge
In the
failed
discharged
in
appellant's common
because
pregnancy
op. at 9-10.
In reaching
court drew
heavily upon the teachings of Howard v. Dorr Woolen Co., 414 A.2d
______
_______________
1273 (N.H.
1980).
Tea Co.,
_______
The appellant
strives to convince
case, Cloutier v.
________
us that a
the district
In
Howard,
______
discharged because
construed
only
of
the plaintiff
age.
The
alleged
that
New Hampshire
he had
Supreme
been
Court
to a situation where
performed an act
an employee is
discharged because he
31
or refused
at
1274.
discharge due
category" inasmuch
unlawful age
as
the
to
age fell
"proper
discrimination is
Howard, 414
______
outside
remedy for
provided for
court synthesized
this "narrow
an
action
by statute."
A.2d
for
Id.
___
In Cloutier, the
________
that to come
within the
that the
defendant
was
motivated
by
bad
faith,
retaliation in
and
"demonstrate
must also
[s]he performed
an act
that [s]he
that public
malice,
A.2d at 1143,
was discharged
policy would
or
because
encourage, or
1144.
such a
stake is codified
in a
provides a
private
A recently decided
the state
____________________
10In Cloutier,
________
the defendant
statutory expression of a
argued that
there must
be a
a generalized
as a
prong of a wrongful
1144-45.
The
restrict[ed
matter of
law to
discharge claim.
court
the] holding
in
Howard to
______
public policy
disagreed, observing
meet the
that
it
A.2d at
had
"not
situations involving
Public policy
exceptions
be based on
non-statutory
policies."
Id. at
___
1144.
This
language means no
of whether
provision to
a plaintiff may
rely on
32
confronts us here.
In
remedy
where
statutory
citations
action," a
the relevant
cause
of
omitted).
to
replace
wrongful discharge
action
for its
We deem
625.
The
legislature intended
cause of
proceed if
private
the
See id. at
___ ___
with a
action could
not provide
violation.
this holding to
it
Id.
___
(internal
be dispositive of
Smith's contention.11
Title VII
gender-based
pregnancy
discrimination
(including,
discrimination) but
action to remedy
procedure
for
but
also creates
violations of
pursuing
such an
not
a private
action.
limited
limns a
to,
right of
mature
Under Wenners,
_______
the
existence
of
such a
remedy
precludes
the
appellant, in
the
wrongful
discharge.
It follows that
the district
court acted
11To
the
extent
that
either
Kopf
____
v.
Chloride Power
_______________
F. Supp. 1179,
1187 (D.N.H.
pair of reasons.
ruling
We set Chamberlin
__________
to one side
Second,
Wenners makes
_______
33
a dispositive
difference.
V.
V.
CONCLUSION
CONCLUSION
We
need go
no further.
On
the factbound
Title VII
to
our task is
of
albeit in
the person
Affirmed.
Affirmed.
________
____________________
When
a federal
Williams
________
court,
the
latter ruling
F.3d
must
give
588, 592
decisis
See
___
(1st
Cir.)
principles
when
(permitting
relaxation
of
"controlling
authority,
subsequently announced,"
undermines an
34
way.
am
compelled by
findings
of
fact to
separately because
deciding
district court's
troubled
VII claim.
due
the
a district
court's
final result,
I write
by the
The
I, however, am convinced
was
analysis used
majority applauds
direct evidence of
district court
deference
concur in
I am
the Title
"prudential."
the
in
the
Smith's claims as
intentional discrimination
obligated to
Although
fully analyze
and that
the
plaintiff's
U.S. 228
(1989).
Additionally, I think
that the
majority
mischaracterizes
requirement
defense.
the
law
relevant
to
the
causation
Its
opinion
could erroneously
be
viewed as
an
for discrimination
I.
I.
The basic
arises
from the
plaintiff's
district
claim.
court's
The Supreme
must
follow.
Where
My first concern
abbreviated analysis
Court has
of
established two
the evidence
produced
at
trial
is
-3535
"direct,"
the
Price Waterhouse
________________
cert.
_____
denied,
______
113
framework
applies.13
S.Ct.
976
(1993);
See
___
Cir. 1992),
Cumpiano v. Banco
___________________
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Jackson v.
______________
__________
Harvard Univ.,
_____________
cert. denied,
____ ______
If the
circumstantial,
evidence of
the
discrimination is
burden-shifting framework
of McDonnell
_________
indirect or
governs.
248 (1981);
basic
rules
have
been
followed,
See
___
as
they
Circuit.
See, e.g.,
___ ____
F.2d at
must,
These
by this
F.2d 777,
782
Yet,
the
district
discrimination played
the
no part
court
found
that
in the decision
gender
to terminate
____________________
13.
The
itself
plurality
require
opinion
direct
in Price Waterhouse
_________________
evidence
of
reference to direct
evidence appears
concurrence in that
case.
This
does
discrimination.
in Justice
not
The
O'Connor's
U.S. at
270-74.
-36-
36
McDonnell Douglas.
_________________
See Jackson,
___ _______
that
direct
finding of
900 F.2d
evidence
at 467
renders the
(holding
McDonnell
_________
analytical omission
by praising
"directness"
for
differential
and
direct
having
"largely
for its
bypassed
evidence/circumstantial
any
evidence
tamisage."
analytical
district court's
processes
Supreme
decision to
Court
and
circumvent the
circuit precedent
concerned.
The discrimination
that
plaintiffs like
invidious.
Supreme
as it is
Court
established
an
analytical
process
e.g.,
____
McDonnell
Douglas,
___________________
implementation
clear
411
of [employment]
that Title
subtle or
Kathy
VII
U.S.
at
801
decisions, it
tolerates no
. .
("[I]n
which
See,
___
the
is abundantly
discrimination,
at 271.
that
the unlawfulness
challenged
in
of the
Title VII
process of inquiry.
_______
the principle
employment actions
cases
is best
exposed
typically
through a
at 255 n.8
-3737
intentional
discrimination.").
Because
question of
stand by
that
as this.
would not be
that
meaningful in this
agree with
the
the
result because I am
precedent.
case.
district court's
finding
bound by Supreme
mean
that the
concur in
trying to
prove the
ultimate issue
in discrimination cases:
that the
of a Title
produced
VII-protected trait.
enough evidence
Price Waterhouse or
_________________
to meet
proved
preponderance
facts
Although
its
of the
established
evidence or,
agree that
defense
alternatively,
insufficient
to
has
burden under
a factfinder to conclude
position-elimination
were
that Smith
her initial
Morse
I believe
show
it
that
by
that the
pretext.
requires, the
district court
issue in
-3838
II.
II.
In
ultimate
light
holding
pertaining to the
of
on
my
concurrence
Smith's
nature of the
Title
in
VII
the
majority's
claim,
issues
at
Waterhouse controls
__________
this case.
reasons.
First,
the
determines
whether a
This
is important for
availability
case
of
should be
that Price
_____
direct
two
evidence
analyzed under
Price
_____
burden
Second,
the determination of
affects
the substantive
outcome in
Title VII
cases.
See
___
Deborah
C. Malamud,
After Hicks,
___________
jurisprudence
procedure.").
93 Mich. L.
cloaks substance
in
the
(1995)("Title VII
'curious
garb'
of
suit
occurred, the
an employer
to Smith's
shown to
by
demonstrating by
preponderance of
evidence that
the
-3939
discrimination
40
F.3d
direct
1551, 1564-65
evidence of
(9th Cir.
discrimination,
1994).
In
without more,
Waterhouse
__________
direct
evidence
of
was
not
Id.
___
producing
other words,
discrimination
a plaintiff
under
Price
_____
scheme"
plaintiffs."
of
1991,
Fuller, 67
______
Pub.
(1991)(codified
L. 102-166,
at 42 U.S.C.
107,
105
2000e-2).
Rights Act
Stat. 1071,
takes sex
other
or pregnancy
considerations
independently
employment decision.
Id.; see 42
___ ___
unlawful
practice
employment
complaining
sex,
or
party demonstrates
national origin
was
explain
U.S.C.
is
1073
employer
of whether
the
2000e-2(m)("[A]n
established
that race,
a motivating
adverse
when
the
color, religion,
factor
for any
the practice.").
very least,
are now
entitled to declaratory
69
and injunctive
5(g)(2)(B))(where
2000e-
-4040
that it would
have made
the same
decision, the
prevailing
what
constitutes direct
damages or reinstatement).
evidence
is a
Thus,
critical issue
for
gun" evidence.
this
Circuit
Using
has yet
to
clearly
define what
we have held
and
of itself, shows
fact that
constitutes
On prior occasions
is evidence which,
a discriminatory animus."
Jackson,
_______
and does
not further
But, this
understanding
in
See, e.g.,
___ ____
reasoning is circular
of the
term.
Justice
O'Connor,
defined
in her
concurring
the term
evidence
in
the negative,
"exclude[s]
'statements
by
opinion
'stray
explaining that
remarks
nondecisionmakers',
decisionmakers unrelated to
in Price Waterhouse,
_________________
direct
in
the
workplace,'
or
'statements
by
Price Waterhouse
________________
was pregnant,
leave.
framework.
and
After being on
Morse's general
that Smith
unpaid maternity
Smith notified
wanted to return
-4141
to
work
Guimond
on
May 15,
approved
the
1989,
week
earlier than
that her
intended
to have
she did.
planned.
whether she
indicated that
On
occurred,
May 2,
Guimond also
Guimond
1989, the
day after
this conversation
questioned Vendasi,
childbearing plans.
Smith's sister,
Smith
confronted
about this behavior and the rumor that she would not
be returning to
work because
to stay
home
and reiterated that Smith's job was secure; she repeated this
to work.
Smith
failed to return to
their last
to return
to tell people
that
decided to stay
home to care for her child, but Smith refused to give it.
There
is
precedent holding
that
statements like
those
Guimond made
evidence.
For
to Smith
example, in
and Vendasi
the Eighth
constitute direct
Circuit, statements
if
made during
a key
that
an
decisional process.
In
employer's oral
statement,
-4242
Beshears v.
___________
court held
"older employees
have
problems adapting
to changed
was direct
Two years
later,
Beshears holding
________
to include
the court
expanded its
written statements.
F.2d
444,
449-50
(8th
Cir.
1993),
held
that
written
Other
circuits
have
included
statements
made
evidence.
In 1994,
discharge
statements
the
made
Seventh Circuit
by
held
supervisor
that post-
were
direct
an
express
intent to
discriminate.
See
___
Robinson v. PPG
________________
the
Eleventh Circuit
employer
to
third
discriminatory animus.
897
has
held that
parties
In
are
Similarly,
statements made
direct
evidence
by an
of
cases such
as Beshears and
Beverage Canners.
Guimond
was
________
solely
responsible
________________
for Morse's
personnel
decisions.
Her
-4343
nor
random and
Additionally,
evinced
a concern
Guimond began
about future
asking questions
pregnancy.
about Smith's
childbearing
plans
decisional period.
of
the decision
during
what
she
admits
to
terminate Smith
was
was
key
suspicious.
Cf.
___
Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994);
__________________________
1993).
Within two
she had
639 (3d
though
F.2d 632,
Cir.
plans to
repeatedly assured
Smith
that her
job was
secure.
smoking gun.
reach
this
conclusion
does
not
make
Smith's
That
done to
evidence
indirect.
As
the Seventh
Circuit recognized
in its
1991
Because
judges are not mind-readers and cannot reach into the mind of
is necessary in any
indirect.
established
direct or
by
purely
direct
-4444
evidence.
See
___
cannot be
Charles
A.
Sullivan,
Brook.
L. Rev.
1107,
the
ultimate issue
of intent
958
least
establish
to discriminate.");
F.2d 1176,
1138
1183-84 (2d
Tyler v.
________
Cir.),
Rather
than
adhering
meaningless requirement of a
adopt
definition of
which satisfies
O'Connor
the
set out
to
the
colorful
direct evidence
minimum negative
in Title
should
VII cases
requirements
in Price Waterhouse:
_________________
but
Justice
"exclude[s] 'stray
or 'statements by decisionmakers
process
itself.'"
(O'Connor
Price
Waterhouse,
__________________
concurring).
In accord
viable
Zubrensky,
option
in
490
U.S.
at
277
Title
VII
suits.
Cf.
___
Michael
A.
(1994).
to
46
Stan.
L. Rev.
959,
969
reasonable
limits
discrimination cases
so
that
plaintiffs
-4545
in
employment
the protections
Title
Even if my
evidence
definition of
Price Waterhouse
________________
direct
Smith
intention
to
become
pregnant
in
the
future;
terminated
"secure;"
after
repeated
assurances
duties continued to
153;
1988).
that
her
that
her
she was
job
was
be performed by
Smith's
complied
proved
manager
with Supreme
and that
employees.
prima
facie
Ronayne, 61
_______
of
Court and
other
prima
reiteration
her
these
facts
on
appeal
circuit precedent.
Smith
duties continued
to be
performed by
case
burden
requires.
facie showing
is not
See, e.g.,
___ ____
especially burdensome.")(citing
51 F.3d 1087,
1995)).
should
The district
court
Byrd v.
________
deficient.
was an excellent
have shifted
to
the
evidence
III.
III.
-4646
In
disparate
addressing
treatment
"coincidence"
between
the
cases,
question
the
pregnancy
of
majority
leave
and
causation
stresses that
an
in
employment
decision does
not in
it arguably
did in this
It may
case.
The
possibility.
give
Its blanket
plaintiffs
actions
"total
ignores the
immunity"
extent to
employers
an
opportunity
to
maternity
from
adverse employment
which maternity
discharge
leave gives
women
an intention to
who
take
have one or
more children.
held
would
have
considered her
been
eliminated even
if
pregnancy or intention to
the future.
It
does not
however, that
Smith
necessarily
would have
been
Morse
had
not
become pregnant in
follow
fired had
from
Morse
this,
not
considered
children.
leave,
her
maternity
leave
or
desire
to
have
more
Bond,
Morse's
eliminating the
president,
materials manager
and
Guimond
position, but
discussed
not Smith.
Smith because
of her excellent
retain
he admitted
that Smith would still be employed at Morse had she not taken
maternity leave.
-4747
Had Smith
refused to
disclose or even
lied about
have a
job at Morse.
concerned
about the
disruption in
the probability
she would
the future.
that Smith's
The majority
would cause
to avoid
completely ignores
expressed desire to
such
have more
opportunity to find
a reason
to discharge her.
contend
The two
the need
for a causal
adverse employment
cases
are both
to illustrate
action challenged in
inapposite and
and the
disparate treatment
unfair.
Footnote 9
of the
leave
to an
leave
that
in
employee who
both
cases
employer to make
the
is discharged while
employee's
desk.
absence
on religious
It is true
enabled
the
discharge.
But
The
possession of heroin
(although an explanation
might be made).
be refuted
The employer
did
-4848
not
employee's
In the
case of maternity
She had
leave, however, an
to be fired.
employer would
have
to
make
position made
the
good business
employee's
plans would
decision.
judgment
prior
be part
as
to
sense.
whether
Considerations
performance and
of the
eliminating the
future
such as
childbearing
employer's position-elimination
in
Similarly,
its
Smith
poor
view obscure
F.3d
the causation
to employees
attitudes or
absences.
issue and
who are
unfairly compare
on probation
discharged because
because of
of unexcused
734 (7th
Cir.
Systems Corp., 819 F. Supp. 737 (N.D. Ill. 1993), and Johnson
_____________
_______
v. Allyn & Bacon, Inc., 731 F.2d 64 (1st Cir.), cert. denied,
______________________
_____ ______
469
U.S.
1018
elimination.
dismissal
absences.
after
(1984),
involved
discharge,
was
motivated
by
her
expected, whereas
-4949
and
frequent
leave later
position
pre-maternity leave
tardiness
not
than originally
on
elimination case
the
similarly
and
an
maternity
886 F.
inapposite; it
employee
leave.
the plaintiff
was
majority cites,
who gave
Supp. 260
Pearlstein v. Staten
_____________________
(E.D.N.Y. 1995),
involved adoption,
short
notice
of
is
not pregnancy,
her need
for
was accidentally
experiencing
overpaid, that
financial difficulties,
her employer
and that
she had
These cases
issues
presented
evidence
in this
do not directly
here.
case
In contrast
shows that
to
Pearlstein,
__________
Smith received
repeated
taking
maternity leave
attitude,
lacked
was
suggestion
her level
of
that Smith's
The fact
Additionally,
a poor
or that she
that Smith
people at
education or
Smith's
been on probation,
that few
before
and that
to economic hardship.
supervisory skills.
exceeded
intentional,
received
the Morse
experience belies
performance and
the
skills were
plant
any
below
par.
Finally,
Smith
received
maternity leave,
shortened the
she could
permission
duration of that
return to work,
for
her
leave, and
not before
she
-5050
left.
for
Morse
in
the
same
way
that
the
Troupe
______
employee's
did
all,
is
that Smith
was fired
because
her absence
had no
My point
fully
shield
plaintiffs
business judgment
employers
is simple:
from
or
from
just
adverse
necessity does
Title
VII's
that, more
pregnancy
will exist.
and
often
than not,
position elimination
not
employment actions,
not
sanctions.
believe
as pregnancy does
totally
The
immunize
majority's
a correlation
during
between
maternity leave
in
the
future
determining
into
whether
consideration during
the
employee's
the
position
process
of
should
be
eliminated.14
IV.
IV.
____________________
14.
Act
U.S.C.
raise.
and does
107 Stat. 6
2601-2654) addresses
That Act,
a number
of the
the majority
(1993)(codified at 29
discrimination claim.
-51-
pre-1993 cases
the problems I
concerns I
perceive in
51
that
Morse made
out a
position-elimination defense
grounds: that
that
duties
Smith's
were
that
Morse
finding
arguably proved
on two
management-level staff
shifted to
employees
who
and
were
the
facts
necessary to
rebut
the majority's
company is
employees
able to manage in
will not
always be
that so,
proof of
That a
of its key
a nondiscriminatory
Were
Moreover,
the conclusion
that
Morse reduced
_______
its
Morse did
its
three.
management
team
from seven
to
The majority
hats formerly
worn by
chief officer.
original
founder and
management team,
management title
two
even though
at that time.
assistant manager
positions
-5252
she did
not have
in its
final count,
even
though
the
individuals
management
titles.
majority's
calculations
management
team was
holding
If
those
slots
the individuals
are
added,
the same at
did
have
excluded from
the
the end
size
as it
of
the
Morse's
was in the
beginning -- seven.15
its
management
team.
eliminated titles,
management.
Because
district court
elimination,
agree,
carried
but
It
consolidated
did not
decrease
it would
to interpret this
however,
out will
concur in
that
the size
of
and
its
for the
reorganization as position
the court's
reorganizations
be enough to
positions
holding.
of
rebut claims
the
do not
sort
Morse
of intentional
discrimination in every
case.
For me,
The court's
that
her
duties
were
was not
merely transferred
to
replaced,
other
Morse
____________________
15.
Post-acquisition
management team
of
Damar,
included the
Morse's
(sheet
(sales);
Hickman
metal);
Bickford
this
number
upper-level
because
Bond
Paradis (machining);
(engineering);
I do not
they
Seeger
were
fired
almost
team
included
seven
individuals:
Bond
-5353
employees,
is based on our
Ins. Co., 6 F.3d 836 (1st Cir. 1993), cert. denied, 114 S.Ct.
________
_____ ______
1398
(1994).
defense is not
only "replaced"
LeBlanc
_______
holds
defeated by
because
that
a position-elimination
an employee
was
perform the
or
[because]
the
work
[was]
redistributed
at 846; see
___
to other duties,
among
related work."
896 F.2d
other
6 F.3d
1457,
To
the extent
Leblanc at all,
_______
to the
the
second
satisfied
prong,
reorganization which
majority
comports with
occurred after
opinion gives
the
the
"related
by demonstrating
that
impression
work"
Smith's firing,
that LeBlanc's
_______
requirement,
a plaintiff's
can
be
duties were
disagree.
cannot
plaintiff's duties
already performing
very similar.
to
-5454
duties
she
had
already
inadequacies of other
been
performing
managers.
Smith at that
duties which,
in my opinion, constituted
LeBlanc.
_______
contrast,
In
shift Smith's
managers
the second
responsibilities to
been performing
took
her
on
job.
what
because
of
time assumed
reorganization did
After Smith
were essentially
the
was
new
not
already
fired,
duties;
those
the
aspects
of
Morse's
business bears
this
out.
That
they
performed those duties for some period before Smith was fired
was
only
because
nonpregnancy-based
Smith
was
on
maternity
explanation
for
leave.
their
The
additional
discrimination are to
against pregnancy-based
by
a plaintiff
were assumed
leave.
leave
Using the
of inquiry must
against
already performing
began.
by someone
a maternity
be before that
the woman
is on
incentive to discriminate
are not at
their
someone
jobs and
when
it will
almost
always be
duties.
In
true
that
this case, if
-5555
V.
V.
Conclusion
Conclusion
the process
the
of its valid-ation."
outcome
employed,
reached in
because
discrimination
this
I disagree
case,
with
but
the
not
employment action
only that
taken against
concur in
the
view of
agree
Accordingly, I
process
pregnancy
I think it only
position elimination
can be
And
a defense
in
For
me, the
process employed
in reaching
a result,
which
-5656