-
USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 94-1931
UDO U. UDO,
Plaintiff, Appellant,
v.
HENRY TOMES, COMMISSIONER FOR THE
DEPARTMENT OF MENTAL HEALTH,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Aldrich, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
John A. Birknes, Jr., for appellant. ____________________
Deborah S. Steenland, Assistant Attorney General, with whom Scott ____________________ _____
Harshbarger, Attorney General, was on brief for appellee. ___________
_____________________
April 28, 1995
_____________________
STAHL, Circuit Judge. Plaintiff-appellant Dr. Udo STAHL, Circuit Judge. _____________
U. Udo challenges his layoff from Taunton State Hospital
("Taunton"), which is operated by the Massachusetts
Department of Mental Health ("DMH"). Udo claims that DMH
laid him off because of age discrimination in violation of
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
626(b), and race discrimination in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. 2000(e). Udo
also claims that defendant-appellee Henry Tomes, the
Commissioner of DMH, in his individual capacity deprived him
of his civil rights in violation of 42 U.S.C. 1983. The
district court granted summary judgment to defendant, and Udo
appeals. We affirm.
I. I. __
Background Background __________
In October 1990, the Massachusetts state
legislature directed all state agencies, including DMH, to
implement cost-saving measures to address underfunding in the
Fiscal Year 1991 budget. DMH responded to this fiscal
emergency with a plan that included significant staff
reductions. In connection with its state-wide reduction in
force, DMH eliminated the two Physician II positions at
Taunton, one of which Udo held. At that time, DMH employed a
total of nineteen Physician IIs in its various hospitals. Of
those, Udo had the most seniority, having been employed since
-2- 2
1975. Udo was also the only Black and, at sixty-five, the
oldest of the nineteen Physician IIs employed by DMH.
Tomes notified Udo by letter dated October 12,
1990, that his position at Taunton had been eliminated. In
the letter, in accordance with procedures under which senior
employees whose positions are eliminated can "bump" less
senior employees, Tomes offered Udo certain bumping options.
Tomes also notified Udo that he could request an exit
interview with the DMH Equal Employment/Affirmative Action
Office to determine if any affirmative action rights had been
abridged. Although Udo requested such an interview, no
interview was ever conducted. Udo elected to bump into the
Physician II position at Metropolitan State Hospital, and, on
October 26, 1990, Tomes sent Udo a letter indicating that he
had been awarded that position.
After awarding Udo the Physician II position at
Metropolitan State Hospital, DMH became aware that, as a
result of a disciplinary action for malpractice, the
Massachusetts Board of Registration in Medicine had, on
October 17, 1990, restricted Udo's license to practice
medicine to Taunton. Consequently, in a letter dated
November 6, 1990, Tomes informed Udo, "Since your election to
practice medicine at Metropolitan State Hospital is contrary
to this disciplinary action, you are hereby laid-off
effective November 17, 1990."
-3- 3
Udo, a member of the Massachusetts Nurses
Association ("MNA"), challenged the elimination of his
position and his layoff through the grievance process set out
in the union's collective bargaining agreement, arguing that
those actions violated the collective bargaining agreement
and that they were discriminatory in terms of both age and
race.1 The arbitrator found that Udo's layoff violated
seniority provisions of the collective bargaining agreement
and held that the "decision to lay off [Udo] was arbitrary,
capricious and unreasonable and in violation of the
contract."2 The arbitrator did not consider Udo's
discrimination claims.
In April 1992, before his arbitration case was
concluded, Udo became aware that Taunton had advertised a
Physician II position with a posting date of April 16, 1992,
and a closing date of April 24, 1992. On May 8, 1992, the
MNA notified Taunton that Udo was eligible to be recalled to
that position through the collective bargaining agreement, as
____________________
1. The MNA also pursued an action with the Massachusetts
Labor Relations Commission against DMH on behalf of all MNA
members who had been laid off or bumped (including Udo)
during the state-wide reduction in force, and the
Massachusetts Labor Relations Commission found that DMH had
violated the collective bargaining agreement.
2. The arbitrator rendered his decision on December 20,
1992, giving the parties ninety days to reach a settlement
regarding relief. Because the parties were unable to agree,
on June 11, 1993, the arbitrator ordered that Udo be
reinstated to his position at Taunton and that he receive
partial back pay.
-4- 4
the agreement provides for recall following layoff at any
time within two years. DMH responded that it had rescinded
that announcement and that the position was no longer
available. Udo later found out that the position had been
filled by an "03" physician. An 03 physician has the same
duties as a Physician II, but does not come within the
collective bargaining agreement.
In addition to challenging the elimination of his
position and his layoff through his union, Udo filed the
instant action. The district court granted defendant's
motion for summary judgment, and Udo appeals.
II. II. ___
Discussion Discussion __________
A. Standard of Review ______________________
As always, we review a district court's grant of
summary judgment de novo and, like the district court, review __ ____
the facts in the light most favorable to the nonmoving party.
See, e.g., Lareau v. Page, 39 F.3d 384, 387 (1st Cir. 1994). ___ ____ ______ ____
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
-5- 5
B. Age and Race Discrimination _______________________________
1. The Legal Framework _______________________
In disparate-treatment cases, plaintiffs bear the
ultimate burden of proving that they were the victims of
intentional discrimination. St. Mary's Honor Ctr. v. Hicks, ______________________ _____
113 S. Ct. 2742, 2747-48 (1993). When plaintiffs are unable
to offer direct proof of their employers' discriminatory
animus -- as is usually the case and was so here -- we
allocate the burden of producing evidence according to the
now-familiar three-step framework set forth in McDonnell _________
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See, ______________ _____ ___
e.g., Hicks, 113 S. Ct. at 2746 (race discrimination); ____ _____
LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. _______ ___________________
1993) (age discrimination), cert. denied, 114 S. Ct. 1398 _____ ______
(1994).
Under the McDonnell Douglas framework, plaintiffs __________________
bear the initial burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. In _________________
reduction-in-force cases, the plaintiff establishes the prima
facie case by demonstrating that he or she (1) was a member
of a protected class, (2) met the employer's legitimate job-
performance expectations, (3) was laid off, and (4) that the
employer either did not treat members of the protected class
neutrally or retained persons not within the protected class
in the same position. See LeBlanc, 6 F.3d at 842. ___ _______
-6- 6
Once the plaintiff establishes a prima facie case,
a presumption arises that the employer unlawfully
discriminated against the plaintiff. Hicks, 113 S. Ct. at _____
2747; LeBlanc, 6 F.3d at 842. This presumption "places upon _______
the defendant the burden of producing an explanation to rebut
the prima facie case -- i.e., the burden of `producing
evidence' that the adverse employment actions were taken `for
a legitimate, nondiscriminatory reason.'" Hicks, 113 S. Ct. _____
at 2747 (quoting Texas Dept. of Community Affairs v. Burdine, ________________________________ _______
450 U.S. 248, 254 (1981)). While the burden of production
shifts to the defendant during this second step, the burden
of persuasion remains on the plaintiff. Hicks, 113 S. Ct. at _____
2747.
If the defendant "articulate[s] some legitimate,
nondiscriminatory reason for the plaintiff's [layoff],"
McDonnell Douglas, 411 U.S. at 802, then the presumption of __________________
discrimination established by the plaintiff's prima facie
showing "drops out of the picture." Hicks, 113 S. Ct. at _____
2749. The burden of production then shifts back to the
plaintiff, who is given an opportunity to show that the
defendant's stated reason for laying off the plaintiff was a
pretext for discrimination. See McDonnell Douglas, 411 U.S. ___ _________________
at 804. "The defendant's `production' (whatever its
persuasive effect) having been made, the trier of fact
proceeds to decide the ultimate question: whether plaintiff
-7- 7
has proven `that the defendant intentionally discriminated
against [him].'" Hicks, 113 S. Ct. at 2749 (quoting Burdine, _____ _______
450 U.S. at 253) (alterations in Hicks); see also LeBlanc, 6 _____ ___ ____ _______
F.3d at 843 (applying Hicks to age discrimination cases). _____
Thus, once the employer articulates a legitimate,
nondiscriminatory reason for laying off the plaintiff, to
avoid summary judgment, the plaintiff must introduce
sufficient evidence to support two findings: (1) that the
employer's articulated reason for laying off the plaintiff is
a pretext, and (2) that the true reason is discriminatory.
Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. _____ _______________________
1994), petition for cert. filed, 63 U.S.L.W. 3644 (U.S. Feb. ________ ___ _____ _____
21, 1995) (No. 94-1416). While the plaintiff may rely on the
same evidence to prove both pretext and discrimination, the
evidence must be sufficient for a reasonable factfinder to
infer that the employer's decision was motivated by
discriminatory animus. Id. ___
2. Application _______________
We shall assume, as the district court did, that
Udo established a prima facie case under the McDonnell _________
Douglas formulation for both age and race discrimination. As _______
its reason for laying Udo off, DMH points to the restriction
on Udo's medical license that made it impossible for him to
-8- 8
bump to another hospital.3 This reason satisfies DMH's
burden of production and shifts the burden back to Udo to
prove that DMH's proffered reason is a pretext for
discrimination.
Even assuming arguendo that DMH's immediate seizure ________
on the restriction on Udo's license was a pretext for some
other reason,4 in order to survive a motion for summary
judgment, Udo's evidence must also allow a jury to find that
DMH's articulated reason was a pretext for discrimination. ___ ______________
See Smith, 40 F.3d at 16 ("Title VII does not grant relief to ___ _____
a plaintiff who has been discharged unfairly, even by the
____________________
3. The exact language of the restriction placed on Udo's
license is as follows:
The Respondent [Udo] will restrict his
current practice of medicine to Taunton
State Hospital and its affiliate programs
where he currently practices, or to those ___________
hospitals and their affiliates who are _________________________________________
approved by the Board in advance, and ___________________________________
such practice will be monitored by a
Board-approved monitoring physician who
will report to the Board, on a regular
basis, the Respondent's activity and
quality of patient care rendered by him.
(emphasis added).
Although the Board imposed this restriction on
Udo's medical license on October 17, 1990, it stemmed from
malpractice occurring before 1980 at St. Luke's Hospital. At
Udo's request, on November 28, 1990, the Board changed the
restriction to allow Udo to practice at other hospitals and
clinics under the jurisdiction of DMH.
4. We note that the arbitrator found Udo's layoff to be
"arbitrary, capricious or unreasonable and in violation of
the contract." While we, of course, are not bound by the
arbitrator's findings, Alexander v. Gardner-Denver Co., 415 _________ ___________________
U.S. 36, 59-60 (1974), the arbitrator's decision could be
considered some evidence of pretext.
-9- 9
most irrational of managers, unless the facts and
circumstances indicate that discriminatory animus was the
reason for the decision.").
To establish that he was the victim of race
discrimination, Udo presents an MNA document that shows that
the nineteen Physician IIs employed by DMH at the time he was
laid off comprised eleven Caucasians, six Asians, one
Hispanic, and one Black (Udo). Based on this document, Udo
maintains that DMH retained all eleven Caucasians, but that
it laid off the only Black (Udo), the only Hispanic, and two
of the six Asians. DMH responds with the affidavit of Jeff
McCue, DMH's Assistant Commissioner for Human Resources.
According to McCue, DMH eliminated only two Physician II
positions, not four, namely the two positions at Taunton.
McCue explains that because neither Udo nor Dr. Pandya, an
Asian who held the other Taunton Physician II position,
exercised their bumping options, neither of the two least
senior Physician IIs, who happened to be a Hispanic and an
Asian, were laid off.
Udo also argues that DMH's failure to conduct his
requested exit interview to determine whether affirmative
action rights pertaining to him were being abridged evidences
DMH's discriminatory animus. DMH states that no exit
interview was conducted because Udo asked Richard C.
Haddocks, Jr., the Director of Human Resources at Taunton,
-10- 10
for an exit interview on October 18, 1990, but Haddocks took
a medical leave of absence beginning on October 21, 1990,
prior to taking action on Udo's request, and did not return
to work until after Udo had been laid off.5
As evidence of age discrimination, Udo notes that
in June 1990, Haddocks sent him a letter stating that he
would have to retire since he turned sixty-five that month.
After Udo informed him that he was mistaken and that
retirement was not required until age seventy, Haddocks
checked further into the matter and informed Udo that he was
correct. In his affidavit submitted with defendant's summary
judgment motion, Haddocks stated that he wrote the retirement
letter because he had received incorrect information from the
____________________
5. Udo also notes that "the affirmative action plan of DMH
specifically provides that any layoff action by DMH must be
reviewed by the EEO Administrator before it becomes final to
determine if such action represents a breakdown in the
affirmative action program and therefore calls for remedial
action." DMH responds that "[t]he EEO Administrator did in
fact review the plan for staff reductions prior to its
implementation." Thus, DMH claims that while Udo failed to
receive his exit interview, the EEO Administrator had still
reviewed his layoff.
Udo points out, however, that the most DMH did was
initially review the reduction in force "prior to its
implementation," but that this included only the elimination
of Udo's Taunton position and not his actual layoff. Udo
seems to cite this as evidence that "the layoff should never
[have] become final," rather than as evidence of age or race
discrimination. While this evidence may constitute proof
that DMH violated the collective bargaining agreement, we do
not think that it tends to prove that Udo was laid off as the
result of age or race discrimination.
-11- 11
Massachusetts State Board of Retirement that Udo was subject
to mandatory retirement at age sixty-five.
As evidence of both age and race discrimination,
Udo also points to DMH's behavior after he applied for a
Physician II position at Taunton that was advertised by DMH
in April 1992. DMH allegedly responded to Udo's application
by stating that the announcement and position had been
rescinded, but then later hired an "03" contract physician to
fill the position.
We do not think that, given this evidence, a
rational jury would be able to find that DMH discriminated
against Udo because of his age or his race. That DMH
eliminated two positions, which were occupied by a Black and
an Asian, does not show that DMH was improperly motivated by
age or race when it subsequently laid Udo off. See Lawrence ___ ________
v. Northrop Corp., 980 F.2d 66, 74 n.13 (1st Cir. 1992) ("Nor ______________
can the fact that the three oldest associate program managers
in Organization 4000 were targeted for layoff itself be
viewed as giving rise to an inference of age
discrimination."). Similarly, we have trouble understanding
how DMH's failure to conduct an exit interview prior to
laying Udo off shows that the decision to lay him off was
discriminatory in motive. Nor do we think that the
retirement letter Udo received shows age animus on the part
of DMH; rather, it seems merely to show that the
-12- 12
Massachusetts State Board of Retirement sent DMH incorrect
information. Cf. Mesnick v. General Elec. Co., 950 F.2d 816, ___ _______ _________________
826 (1st Cir. 1991) ("the intentions of a third party may not
be attributed to an employer without some rational basis for
attribution"), cert. denied, 112 S. Ct. 2965 (1992). _____ ______
We focus in particular on the fact that Udo was not
recalled to his position at Taunton. While this tends to
indicate that DMH did not want to rehire him, and thus
supports the inference that the restriction on his license
may have been a pretext, it does not by itself provide a
basis for inferring age or race discrimination. That DMH may
have violated the collective bargaining agreement yet again
when it failed to recall Udo does not indicate that DMH is
thereby also liable under Title VII or the ADEA.
Because Udo has not presented evidence that would
enable a rational jury to find that he was laid off because
of age or race discrimination, we hold that DMH was entitled
to summary judgment on Udo's age and race discrimination
claims.
C. Section 1983 ________________
Udo also sued Tomes in his individual capacity,
claiming that Tomes violated his civil rights by depriving
him of employment through an unlawful layoff based on his
race, in violation of 42 U.S.C. 1983. Because, as we held
above, Udo failed to raise a triable issue as to whether his
-13- 13
layoff was motivated by discriminatory intent, the district
court properly granted Tomes summary judgment on this claim.
-14- 14
III. III. ____
Conclusion Conclusion __________
We hold that Udo failed to create a genuine issue
of triable fact on his age and race discrimination claims,
and therefore also on his 1983 claim. Accordingly,
defendant was entitled to summary judgment. The judgment of
the district court is therefore
Affirmed. ________
-15- 15
Document Info
Docket Number： 94-1931
Filed Date： 4/28/1995
Precedential Status： Precedential
Modified Date： 9/21/2015