Fausto v. Welch ( 1995 )


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  • 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                                    [NOT FOR PUBLICATION]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. Kanwit, ________________ _________________
    Assistant United States Attorney, on brief for appellee.


    ____________________

    August 29, 1995
    ____________________






















    Per Curiam. Plaintiff-appellant Joseph Anthony ___________

    Fausto appeals pro se from entry of summary judgment ___ __

    disposing of his claim that the Air Force discriminated

    against 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 is fully and accurately set

    forth in the district court's memorandum and order, and we

    need only provide a brief summary here. On May 29, 1984,

    Fausto applied for the position of Administrative Officer,

    GS-11, at an Air Force facility located in Wilmington,

    Massachusetts. The evidence in the record establishes that

    Fausto was one of eight candidates interviewed for this

    position; that the candidates were scored after their

    interviews; that Fausto received the lowest score; and that

    Fausto's low score was due, in part, to his poor performance

    during his oral interview.1 There is some evidence that the

    highest scoring candidate, a woman, was offered the job and

    declined for personal reasons. In any event, none of the

    remaining candidates was offered the position. Instead, the

    job was restructured as a GS-9 developmental position,




    ____________________

    1. Fausto suggests, without evidentiary basis, that the
    other interviewees never existed. In addition, Fausto
    submitted his own affidavit proclaiming that he had performed
    well during his oral interview.













    reannounced, and eventually offered to Rosemary Tremblay, a

    woman who had been shouldering many of the job's

    responsibilities for some months.

    Having exhausted his administrative remedies, Fausto

    filed suit in the district court against defendant-appellee

    John J. Welch, Jr., Acting Secretary of the Air Force,

    alleging discriminatory treatment in violation of Title VII

    of the Civil Rights Act of 1964, 42 U.S.C. 2000e. Both

    parties moved for summary judgment. The district court,

    relying on the three-stage, burden-shifting framework set

    forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 _________________________ _____

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

    of discrimination. The court found, however, that the Air

    Force successfully had rebutted the presumption of

    discrimination arising from Fausto's prima facie case by _____ _____

    articulating a legitimate, non-discriminatory reason for its

    decision, 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 granted summary judgment in favor of

    the Air Force.2

    ____________________

    2. Fausto also alleges in his complaint that he was the
    victim of retaliation for filing a complaint with the Equal
    Employment Opportunity Commission. The district court
    granted summary judgment for the Air Force on this claim on
    the ground that Fausto failed to present a prima facie case _____ _____

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    II.

    The basic order and allocation of burdens of proof in a

    Title VII discriminatory treatment case was limned by the

    Supreme Court in McDonnell Douglas, 441 U.S. at 802-05, and _________________

    expounded in St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 _____________________ _____

    (1993). Where, as here, there is no direct evidence of

    discrimination, the plaintiff bears the initial burden of

    establishing a prima facie case of discrimination. See Smith _____ _____ ___ _____

    v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994), _______________________

    cert. denied, 115 S. Ct. 1958 (1995). If the plaintiff _____________

    establishes a prima facie case, the burden shifts to the _____ _____

    employer to articulate a legitimate, non-discriminatory

    reason for its decision. 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 is a pretext and that the true

    reason for its action is discriminatory. See Smith, 40 F.3d ___ _____

    at 16. We review the grant of summary judgment de novo, __ ____

    viewing the evidence, and the reasonable inferences

    therefrom, in a light most favorable to the party resisting

    summary judgment. Woodman v. Haemonetics Corp., 51 F.3d _______ __________________

    1087, 1091 (1st Cir. 1995).


    ____________________

    of retaliation. Fausto does not argue that this was error,
    and we deem the issue waived.

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    A. Defendant's Burden of Production

    Once Fausto made out a prima facie case of gender _____ _____

    discrimination, the Air Force was required to articulate a

    legitimate, non-discriminatory reason for its adverse

    decision. Fausto argues that, in the procedural posture of a

    motion for summary judgment, the district court impermissibly

    judged the credibility of the affiants in determining that

    the Air Force met its burden. Fausto also contends, relying

    on Milton v. Weinberger, 645 F.2d 1070, 1079 (D.C. Cir. ______ __________

    1981), that his low score, relative to the other candidates

    who were interviewed, could not be used to justify his non-

    selection. These arguments fail.

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

    a burden of production; it must introduce evidence which, if

    "taken as true," would permit an inference that there was a

    non-discriminatory reason for the adverse action. Hicks, 113 _____

    S. Ct. at 2748. Second, Milton is inapposite. In Milton, ______ ______

    the District of Columbia Circuit held that the relative

    rankings of candidates before their interviews could not,

    alone, serve as a legitimate reason for the non-selection of

    the appellants where it was apparent that the selecting

    official did not rely solely on these rankings to make his

    decision. See Milton, 645 F.2d at 1079. In the instant ___ ______

    case, the relative rankings introduced by the Air Force were

    final rankings of the candidates after their interviews.



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    Moreover, the Air Force introduced other evidence

    demonstrating that Fausto's interview went poorly and that

    the selecting officials believed he lacked the capacity to

    perform the job. Under the circumstances, the Air Force met

    its burden of production.

    B. Plaintiff's Burden of Showing Discriminatory Animus

    At the third and final stage, Fausto was required to

    proffer sufficient evidence to prove by a 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 suggestion, the fact that the Air

    Force redacted the names of the other candidates and

    identified them solely by their sex for purposes of its

    summary judgment motion does not support an inference that

    these candidates did not exist or that their scores were

    fabricated. See Byrd v. Ronayne, 1995 WL 461827 at *3 (1st ___ ____ _______

    Cir. Aug. 9, 1995) (summary judgment cannot be 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



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

    the position of administrative officer than was Rosemary

    Tremblay.3 The unrebutted evidence that both male and

    female candidates were passed over in the decision to

    restructure the job makes improbable the inference that

    Tremblay was offered the position at a lower grade because of

    her gender. More importantly, the unrebutted evidence that

    Fausto had the lowest ranking of the eight candidates

    interviewed renders implausible the inference that gender

    bias was a motivating factor in the decision not to select

    him. Cf. Gilty v. Village of Oak Park, 919 F.2d 1247, 1253 ___ _____ ____________________

    (7th Cir. 1990) (upholding grant of summary judgment where

    race discrimination claimant would have placed no higher than

    fifth on the eligibility list even in the absence of the

    alleged discrimination).

    Affirmed. ________















    ____________________

    3. Fausto submitted a copy of his form SF-171, a standard
    government form providing detailed employment history, and a
    copy of Rosemary Tremblay's resume.

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