Das v. Ciba ( 1993 )


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  • 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    [NOT FOR PUBLICATION]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
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    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.
    _______

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    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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