USCA1 Opinion
August 17, 1994
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-2296
JIMMIE E. WOODS,
Plaintiff, Appellant,
v.
FRICTION MATERIALS, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
ERRATA SHEET
ERRATA SHEET
The following references to "Mass. Gen. L. ch. 93A" should be
changed to "Mass. Gen. L. ch. 93":
Page 5, first full , l. 9
Page 6, l.10
Page 8, l.11
Page 20, l.5, l.7, l.17
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_____________________
*Chief Judge Stephen Breyer heard oral argument in this matter but did
not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).
August 4, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________
No. 93-2296
JIMMIE E. WOODS,
Plaintiff, Appellant,
v.
FRICTION MATERIALS, INC.,
Defendant, Appellee.
____________
ERRATA SHEET
The opinion of this court issued on July 29, 1994, is amended as
follows:
Page 15, second line from the bottom of the page: Delete "the"
after "than."
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-2296
JIMMIE E. WOODS,
Plaintiff, Appellant,
v.
FRICTION MATERIALS, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Frederick T. Golder with whom Bernstein, Golder & Miller P.A. was
___________________ ________________________________
on brief for appellant.
Samuel A. Marcosson, James R. Neely, Jr., Gwendolyn Young Reams,
____________________ ____________________ _____________________
and Vincent J. Blackwood were on brief for Equal Employment
_______________________
Opportunity Commission, amicus curiae.
Dan T. Carter with whom James Allan Smith, Smith, Currie &
_______________ ___________________ ________________
Hancock, Richard W. Gleeson, and Gleeson & Corcoran were on brief for
_______ ___________________ __________________
appellee.
____________________
July 29, 1994
____________________
_____________________
*Chief Judge Stephen Breyer heard oral argument in this matter but did
not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).
STAHL, Circuit Judge. Plaintiff Jimmie E. Woods
_____________
filed a complaint charging defendant Friction Materials Inc.
("FMI") with illegal race, age, and handicap discrimination
in violation of state and federal law. Woods now appeals the
district court grant of summary judgment in favor of FMI. We
affirm.
I.
I.
__
FACTUAL FINDINGS AND PRIOR PROCEEDINGS
FACTUAL FINDINGS AND PRIOR PROCEEDINGS
______________________________________
Woods, a 54 year-old, handicapped, African-American
male, was employed between 1961 and 1986 by PT/BT, a small
group of interrelated brake manufacturing companies in
Lawrence, Massachusetts. During his tenure with PT/BT, Woods
was promoted twice, to the position of foreman in 1968, and
to the position of supervisor in 1970. In 1986, FMI, a
wholly owned subsidiary of Echlin, Inc. ("Echlin") acquired
the assets of PT/BT. Thereafter, Wood continued working at
FMI as a production foreman without a break in service.
In February of 1987, Echlin, concerned about the
financial condition of the newly formed FMI, fired FMI's
president and manufacturing manager. Three days later,
Echlin appointed Patrick Healey to the top managerial
position at FMI, that of division manager. Under Healey's
leadership, FMI began to retool and update its manufacturing
processes.
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2
As a result, Woods and the other three FMI
production foremen in the block-making department (Richard
Bond, a 45 year-old caucasian male, Paul Harris, a 65 year-
old African-American male, and Peter Lane, an 50 year-old
African-American male) experienced an increase in their
duties and responsibilities. According to Woods, FMI began
to expect more from its employees and the supervisor's
position became more complicated than it had been when he
worked at PT/BT. Deposition of J. Woods at 28. After the
reorganization began, of the four supervisors in the block-
making department, Bond was terminated for poor performance
and Lane was demoted to a non-supervisory position. Woods
initially fared well at FMI, as evidenced by a November 1987
written evaluation in which Superintendent Elvin Valentin
gave Woods an overall rating of three on a scale of one to
five. In 1988, however, Woods learned that Valentin's
opinion of his work had diminished. In a ten to fifteen
minute review, Valentin told Woods that both he and
manufacturing manager Ray Shaffer (Woods' direct supervisor)
felt that Woods was not performing up to his capability, that
he needed to improve his scheduling and interpersonal skills,
and that he would not be receiving a raise. Id. at 47-49.
___
In October 1988, Woods was injured in a non-work
related automobile accident. The resulting injuries forced
Woods to take an extended medical leave of absence from FMI.
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3
By the end of February 1989, Woods had used all of his
medical and vacation leave time and still was unable to
return to work. Pursuant to FMI's policy of terminating all
employees who are unable to work after the expiration of
their leave time, notwithstanding the ongoing nature of the
ailment, FMI terminated Woods. Woods does not challenge his
termination.
By 1989, Woods was physically able to return to
work. In late 1989, FMI began interviewing candidates for
the position of production foreman for a new production line.
Woods, along with approximately seventy-four others, applied
for one of four available positions. Of the seventy-five
applicants, personnel manager Arthur McKew decided to
interview eight, including Woods. The eight applicants were
interviewed by two of FMI's production superintendents,
Warren Kappeler and Garnet Wilson1, who evaluated the
candidates on their manufacturing and production knowledge
and comprehension, supervisory skills, and general demeanor.
____________________
1. Wilson replaced Valentin who, in July 1989, was arrested
by the Massachusetts State Police and terminated from his
employment for theft of FMI funds. McKew aff. at 2. This is
only important because of Woods' allegation that Valentin
made racist remarks to Woods while they worked together.
Valentin, however, played no role in FMI's decision not to
hire Woods since he was no longer employed by the company
when the employment decisions were made. See Medina-Munoz v.
___ ____________
R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990)
__________________________
("The biases of one who neither makes nor influences the
challenged personnel decision are not probative in an
employment discrimination case.").
-4-
4
Both Kappeler and Wilson assessed Woods' supervisory skills
and understanding of production processes as weak and felt
that on balance these weaknesses outweighed Woods' years of
experience. Both men recommended that Woods not be hired.
McKew stated that he ultimately decided not to hire Woods
based upon the interviews and Woods' previous performance
evaluations. In his deposition, McKew conceded that although
Woods could have filled one of the open positions, he was not
hired because there were others who he found to be better
qualified. The positions were thereafter filled by four
younger, non-handicapped, caucasian males. Woods concedes
that he is unaware of the qualifications possessed by those
ultimately hired.
On March 19, 1990, Woods filed a complaint with the
Massachusetts Commission Against Discrimination ("MCAD"). On
May 7, 1990, Woods commenced this action by filing a
complaint in the Superior Court of Massachusetts for the
County of Middlesex. In his complaint, Woods charged FMI
with age discrimination in violation of the Federal Age
Discrimination and Employment Act ("ADEA"), 29 U.S.C. 621
et seq., and with age and/or race and/or color and/or
__ ____
handicap discrimination in violation of Mass. Gen. L. ch.
151B and Mass. Gen. L. ch. 93 102 and 103.
After removing the action to the federal district
court in Massachusetts, FMI filed a motion for summary
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5
judgment on all claims, claiming that Woods had not made out
a prima facie case of discrimination because he had not shown
that he was qualified for the position sought, and, in the
alternative, that FMI's decision not to hire Woods had been
made for nondiscriminatory reasons, i.e., those hired were
better qualified. Woods filed a motion in opposition. On
October 1, 1993, the district court issued a written order in
which it awarded summary judgment in FMI's favor, finding
that although Woods had established a prima facie case, he
had failed to allege sufficient facts to rebut FMI's
articulated nondiscriminatory reasons under both ADEA and
Mass. Gen. L. ch. 151B. The district court further held that
Woods' claim under Mass. Gen. L. ch. 93 was preempted by
Mass. Gen. L. ch. 151B. It is from this judgment that Woods
now appeals.
II.
II.
___
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
We review grants of summary judgment de novo, and,
__ ____
like the district court, are obliged to review the facts in a
light most favorable to the non-moving party, drawing all
inferences in the non-moving party's favor. LeBlanc v. Great
_______ _____
Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied,
____________ ____ ______
114 S. Ct. 1398 (1994). Summary judgment is appropriate when
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
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6
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). "`[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
_______
issue of material fact.'" Medina-Munoz, 896 F.2d at 8
________ ____________
(emphasis in original) (quoting Anderson v. Liberty Lobby,
________ _______________
Inc., 477 U.S. 242, 247-248 (1986) (citations omitted)).
____
Moreover, summary judgment may be appropriate "`[e]ven in
cases where elusive concepts such as motive or intent are at
issue, . . . if the non-moving party rests merely upon
conclusory allegations, improbable inferences, and
unsupported speculation.'" Goldman v. First Nat'l Bank of
_______ ____________________
Boston, 985 F.2d 1113, 1116 (1st Cir. 1993) (quoting Medina-
______ _______
Munoz, 896 F.2d at 8). Finally, Fed. R. Civ. P. 56(c)
_____
"mandates the entry of summary judgment . . . upon motion
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,
______________ _______
322-23 (1986). III.
III.
____
DISCUSSION
DISCUSSION
__________
On appeal, Woods claims, inter alia, that the
_____ ____
district court misapplied the respective burdens of the
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7
parties under both federal and state law. More specifically,
Woods argues that the district court erred in ruling that the
burden shifting framework as limned in McDonnell Douglas
__________________
Corp. v. Green, 411 U.S. 792, 802-05 (1973) and expounded in
_____ _____
St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993) (1)
________________________ _____
may require plaintiff to present more than a prima facie case
in order to survive a motion for summary judgment, (2)
requires the employer to do no more than simply articulate a
nondiscriminatory reason for its employment action, and (3)
requires plaintiff to present evidence to show not only that
the employer's proffered reason was a pretext, but that it
was a pretext for illegal discrimination. Moreover, Woods
___
claims that the district court erred in analyzing both the
federal and state claims together under the same federal
standard and further erred in finding that Woods claims under
Mass. Gen. L. 93 102 and 103 were preempted. We address
each argument in turn.
A. Federal Claim
_________________
In an ADEA failure to hire discrimination suit,
plaintiff bears the ultimate burden of persuading the
factfinder that the employer illegally discriminated against
plaintiff by refusing to hire plaintiff on the basis of
his/her age. See Lawrence v. Northrop Corp., 980 F.2d 66, 69
___ ________ ______________
(1st Cir. 1992). Where there is little direct evidence of
age discrimination, plaintiff may rely upon the three stage
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8
burden-shifting framework set forth in McDonnell Douglas.
_________________
See id. at 68; Goldman, 985 F.2d at 1117. Under this
___ ___ _______
framework, plaintiff initially must establish a prima facie
case of discrimination, i.e., in a failure to hire situation,
plaintiff must show that (1) s/he is a member of a protected
class, (2) s/he applied and was qualified for the position in
question, (3) that despite his/her qualifications, s/he was
rejected, and (4) that, after rejection, the position
remained open and the employer continued to seek applicants
from persons of the complainant's qualifications. See
___
McDonnell Douglas, 411 U.S. at 802. Once plaintiff
__________________
successfully establishes a prima facie case, it is presumed
that the employer engaged in impermissible age
discrimination. See Texas Dept. of Community Affairs v.
___ ___________________________________
Burdine, 450 U.S. 248, 254 (1981).
_______
In the second stage, the employer must rebut this
presumption by articulating a legitimate, non-discriminatory
reason for its decision not to hire plaintiff. See Vega v.
___ ____
Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993). "The
_____________________
employer's burden at this stage is merely one of production;
the burden of persuasion remains plaintiff's at all times."
Lawrence, 980 F.2d at 69. Once a legitimate
________
nondiscriminatory reason is articulated, the presumption
created by plaintiff's prima facie case disappears. Id. At
___
the third and final stage, plaintiff must produce sufficient
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9
evidence, direct or indirect, to show that the reasons
advanced by the employer constitute a mere pretext for
unlawful discrimination. See LeBlanc, 6 F.3d at 842. To
___ _______
meet this burden, the claimant must prove both that the
____
employer's articulated reason is false, and that
discrimination was the actual reason for its employment
action. See Hicks, 113 S. Ct. at 2749 n.4.2 If plaintiff
___ _____
"fails to show `pretext,' [for discrimination] the challenged
employment action `must stand.'" Id. at 2752 n.6 (quoting
___
McDonnell Douglas, 411 U.S. at 807).
_________________
Of course, the framework described above applies to
a full bench trial, as was the case in Hicks. As we noted in
_____
____________________
2. Woods misstates the law when he argues without citing any
authority that "[i]f the plaintiff shows that an employer's
reasons are not credible, he resurrects the presumption of
unlawful discrimination, since in the absence of any known
reasons for the employers decision, courts presume that the
employer was motivated by discriminatory reasons." In Hicks,
_____
the Court addressed this precise issue and held that once the
defendant
has succeeded in carrying its burden of
production, the McDonnell Douglas
____________________
framework -- with its presumptions and
burdens -- is no longer relevant. To
resurrect it later, after the trier of
fact has determined that what was
`produced' to meet the burden of
production is not credible, flies in the
face of our holding in Burdine that to
_______
rebut the presumption `[t]he defendant
need not persuade the court that it was
actually motivated by the proffered
reasons.'
Hicks, 113 S. Ct. at 2749 (quoting Burdine, 450 U.S. at 254).
_____ _______
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10
LeBlanc, however, the Hicks decision set forth the respective
_______ _____
burdens which need to be met in order for a party to survive
a motion for summary judgment:
In the context of a summary judgment
proceeding, Hicks requires that, once the
_____
employer has advanced a legitimate,
nondiscriminatory basis for its adverse
employment decision, the plaintiff,
before becoming entitled to bring the
case before the trier of fact, must show
evidence sufficient for the factfinder
reasonably to conclude that the
employer's decision to discharge him or
her was wrongfully based on age.
Goldman, 985 F.2d at 1117; Lawrence, 980
_______ ________
F.2d at 69-70; Villanueva [v. Wellesley
__________ _________
College], 930 F.2d [124,] 127-28 [(1st
_______
Cir.), cert. denied, 112 S. Ct. 181
_____ ______
(1991)]; Connell [v. Bank of Boston], 924
_______ ____ __ ______
F.2d [1169,] 1172 [(1st Cir.), cert.
_____
denied, 501 U.S. 1218 (1991)]. "Direct
______
or indirect evidence of discriminatory
motive may do, but `the evidence as a
whole . . . must be sufficient for a
reasonable factfinder to infer that the
employer's decision was motivated by age
animus.'" Goldman, 985 F.2d at 1117
_______
(quoting Connell, 924 F.2d 1172 n.3).
_______
Thus, the plaintiff cannot avert summary
judgment if the record is devoid of
adequate direct or circumstantial
evidence of discriminatory animus on the
part of the employer. See id. at 1118
___ ___
(citations and footnote omitted).
LeBlanc, 6 F.3d at 843.3
_______
____________________
3. In its amicus curiae brief, the Equal Employment
Opportunity Commission (the "EEOC"), urges us to hold that
"an employment discrimination plaintiff may survive summary
judgment by establishing a prima facie case of discrimination
and showing a genuine issue of fact on the question of
whether the employer's asserted explanation for its actions
is worthy of credence." In other words, the EEOC would like
a blanket statement that once evidence of pretext is
proffered, that evidence along with the prima facie case will
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1. Stage One - Woods' Prima Facie Case
1. Stage One - Woods' Prima Facie Case
_______________________________________
We agree that Woods has provided sufficient
evidence to establish a prima facie case. As the district
court stated, Woods has shown that
[h]e is a member of [the] protected
class[] . . . within the meaning of
applicable law. His long experience in
the industry and history of largely
favorable reviews, and McKew's opinion
that he was qualified to fill one of the
____________________
at all times shield plaintiff from adverse summary judgments.
The EEOC cites as authority the following passage from Hicks,
_____
in which the Court specifically noted that
[t]he factfinder's disbelief of the
reasons put forward by the defendant
(particularly if disbelief is accompanied
by a suspicion of mendacity) may,
___
together with the elements of the prima
facie case, suffice to show intentional
discrimination.
Hicks, 113 S. Ct at 2749 (emphasis supplied). We do not
_____
agree that the Court's language supports the EEOC's position.
Rather, this quoted statement simply makes clear that the
Supreme Court envisioned that some cases exist where a prima
facie case and the disbelief of a pretext could provide a
_____
strong enough inference of actual discrimination to permit
the fact-finder to find for the plaintiff. Conversely, we do
not think that the Supreme Court meant to say that such a
finding would always be permissible. (For example, suppose
______
an employee made out a truly bare-bones prima facie case of
age discrimination, and the employer responded that the
employee lacked the necessary skills for the job. Suppose
also that unrefuted evidence showed that the response was a
pretext, because the employer had fired the employee to
conceal the employer's own acts of embezzlement. In such an
instance, there would be a prima facie case at the outset and
a disbelieved pretext, but we think it plain that no
reasonable jury could find age discrimination on such a
record.) The strength of the prima facie case and the
significance of the disbelieved pretext will vary from case
to case depending on the circumstances. In short, everything
depends on the individual facts.
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12
openings, has created at least a genuine
issue as to his ability to meet the
employer's legitimate expectations.
Woods was denied a supervisory position
by FMI. In addition, [FMI] has not
offered evidence to remove from dispute
the issue whether he is about as
qualified as the individuals ultimately
hired.
Therefore, we turn our attention to the question of whether
FMI has satisfied its burden of production by articulating a
legitimate non-discriminatory reason for refusing to hire
Woods.
2. Stage Two - FMI's Articulated Nondiscriminatory
2. Stage Two - FMI's Articulated Nondiscriminatory
___________________________________________________
Reason
Reason
______
FMI offers two interrelated reasons for not hiring
Woods. Basically, FMI contends that Woods was not qualified
to hold a supervisory position in the new and retooled FMI,
and that in the alternative, even if he was found to be
minimally qualified, that he was not as qualified as those
ultimately hired. In support of these claims, FMI introduced
the affidavits of Healey, McKew, Wilson, and Kappeler. In
his statement, Healey recounted the changes he implemented to
make FMI financially competitive in the market and why Woods'
prior experience was not indicative of his ability to
competently fill the updated position of productions foreman.
Among the changes, he noted that the production foremen in
particular were given more responsibility while losing some
of their support systems and that "[i]n essence, FMI went
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from a relatively simple operation to a complex manufacturing
system with a production schedule and pre-planning
requirements." Affidavit of P. Healey at 8. Healey stated
that Woods "had a limited technical knowledge of how brake
parts were manufactured . . . . a limited ability to trouble
shoot and generally displayed limited inclination and ability
to be innovative." Id. at 5. Healey further opined that
___
Woods lacked "basic supervisory skills, including the ability
to plan work, to organize and to implement a production plan,
and to motivate employees to carry out the plan," id., and
___
that he "had a great deal of difficulty in planning for and
implementing the coordination of the machinery, raw material
and workforce assignments necessary to produce the product
mix and quantity required of his shift," id. at 9. Attached
___
to Healey's affidavit is a copy of an undated and unsigned
evaluation, one which was never shared with Woods because of
his accident and subsequent inability to return to work. In
the evaluation, both Healey and Shaffer rated Woods' overall
performance in the second to lowest category, while awarding
Woods the lowest grade with regard to enforcement of company
policies, acceptance of responsibility, and decision-making.
Healey stated that as a result of this evaluation, management
intended to place Woods on probationary status prior to his
accident.
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Kappeler and Wilson stated in their affidavits that
based upon their interviews, they found Woods to be an
unacceptable candidate for a foreman position with FMI
because of his weak supervisory skills and lack of
understanding of production processes, such as sequencing and
planning. Both men rated Woods as having the poorest
supervisory skills of all those interviewed. Affidavit of W.
Kappeler at 2; Affidavit of G. Wilson at 1. As noted
earlier, McKew also stated that those hired were more
qualified. Thus, we find that FMI successfully articulated
non-discriminatory reasons for not hiring Woods, and
therefore carried its burden of production.
3. Stage Three - Pretext for Discrimination
3. Stage Three - Pretext for Discrimination
____________________________________________
Finally, we must determine whether Woods has
produced sufficient evidence to raise a genuine issue of
material fact such as would permit a reasonable factfinder to
conclude that FMI did not rely on its articulated reasons in
deciding not to hire Woods and that FMI unlawfully
___
discriminated against Woods because of his age. Of course,
the most obvious and relevant piece of evidence Woods could
introduce to contradict FMI's assertion that he was not the
best qualified for the position, would be evidence regarding
the qualifications of those hired. Woods, however, has
neither introduced their respective resumes, nor argued to us
that he was unable to obtain this information through the
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normal discovery channels. In fact, the only evidence
produced by Woods to show that the other candidates were not
more qualified appears in his own deposition where he
concludes, after admitting that he had no knowledge of the
qualifications of those hired, that he had twenty years of
experience in the brake manufacturing industry while the
other applicants had none. Woods contends that on this basis
alone, a reasonable juror might infer that Woods was as
qualified or more qualified than those who were hired.
Furthermore, he contends that it would be reasonable for a
juror to infer, on the basis of this evidence coupled with
his prima facie case that the actual reason for FMI's
decision not to hire Woods was because he was too old. We do
not agree. Although Woods has presented enough evidence
to permit a reasonable factfinder to determine that he was
qualified to hold one of the four positions on the basis of
1) his experience, 2) the favorable evaluations and
promotions Woods received prior to his accident, and 3)
McKew's reluctant admission that Woods was minimally
qualified to hold one of the four positions, there is no
evidence either to rebut FMI's assertion that those hired
were more qualified, or to suggest that FMI's decision not to
hire Woods was in any way driven by illegal age animus.
Because Woods has failed to present sufficient evidence to
permit a reasonable factfinder to infer that FMI's
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articulated reason was a pretext for unlawful age
discrimination, his claim under ADEA must fail.
B. State Law Claims
B. State Law Claims
____________________
1. Mass. Gen. L. ch. 151B
1. Mass. Gen. L. ch. 151B
__________________________
Next, Woods claims that although Mass. Gen. L. ch.
151B4
employment discrimination claims are generally analyzed
according to the federal burden shifting regime articulated
____________________
4. Mass. Gen. L. ch. 151B 4 provides in relevant part:
It shall be an unlawful practice:
1. For an employer, by himself or his agent,
because of the race, color, . . . to refuse to hire or employ
or to bar or to discharge from employment such individual or
to discriminate against such individual in compensation or in
terms, conditions or privileges of employment, unless based
upon a bona fide occupational qualification.
. . . .
1B. For an employer in the private sector, by
himself or his agent, because of the age of any individual,
to refuse to hire or employ or to bar or to discharge from
employment such individual, or to discriminate against such
individual in compensation or in terms, conditions or
privileges of employment, unless based upon a bona fide
occupational qualification.
. . . .
16. For any employer, personally or through an
agent, to dismiss from employment or refuse to hire, rehire
or advance in employment or otherwise discriminate against,
because of his handicap, any person alleging to be a
qualified handicapped person, capable of performing the
essential functions of the position involved with reasonable
accommodation, unless the employer can demonstrate that the
accommodation required to be made to the physical or mental
limitations of the person would impose an undue hardship to
the employer's business.
Mass. Gen. Laws Ann. ch. 151B 4 et seq., (West 1982 & Supp.
1994).
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in McDonnell Douglas, the Massachusetts Supreme Judicial
_________________
Court (the "SJC"), has placed a more demanding burden upon
the employer than the burden imposed by federal law as
interpreted by this circuit. Thus, Woods argues that it was
error for the district court to lump the federal and state
claims together, and that under the proper standard, FMI's
motion for summary judgment must fail.
It is well established "that the `state courts are
the ultimate expositors of state law' and the federal courts
are bound by the constructions placed upon state statutes by
state courts absent extreme circumstances." Rundlett v.
________
Oliver, 607 F.2d 495, 500 (1st Cir. 1979) (quoting Mullaney
______ ________
v. Wilbur, 421 U.S. 684, 691 (1975)). Moreover, it is
______
equally well established that when interpreting Massachusetts
discrimination statutes, the SJC "may look to the
interpretations of analogous federal statutes, but are not
bound thereby." August v. Offices Unlimited, Inc., 981 F.2d
______ ________________________
576, 580 n.3 (1st Cir. 1992).
While the SJC has used the three-part McDonnell
_________
Douglas analysis as a guide in deciding claims under Mass.
_______
Gen. L. ch. 151B, it has been somewhat more severe in its
treatment of defendants. In the oft-cited Wheelock College
________________
v. Massachusetts Comm'n. Against Discrimination, 355 N.E.2d
_____________________________________________
309 (Mass. 1976), the SJC acknowledged that McDonnell-Douglas
_________________
merely required the employer to articulate a legitimate non-
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18
discriminatory reason for its action; but the court went on
to say under ch. 151B, "that articulating a reason in cases
of this kind requires the employer to produce not only
evidence of the reason for its action but also underlying
facts in support of that reason." Id. at 313-14. Other
___
Massachusetts cases follow the same course.5
All this, however, is academic in the present case
because even under the more demanding standard apparently
followed in Massachusetts, FMI has done more than merely
articulate a reason. It has offered three affidavits in
which those concerned set forth their assessment that Woods
was not as well qualified as the four men ultimately hired;
there is a contemporaneous evaluation of Woods critical of
his skills that would presumably be admissible as a business
record; and there is an explanation from one of the affiants
that colorably explains how Woods could have done an adequate
job for a number of years without being especially well
qualified for the more demanding tasks contemplated by the
new position in the upgraded company. Whether or not these
____________________
5. See, e.g., McKenzie v. Brigham and Women's Hosp., 541
___ ____ ________ ___________________________
N.E.2d 325, 326 (Mass. 1989) (defendant must "advanc[e]
lawful grounds for the action taken and produce evidence of
___
underlying facts in support thereof") (emphasis added);
Trustees of Forbes Library v. Labor Relations Comm'n, 428
____________________________ _______________________
N.E.2d 124, 128 (Mass. 1981) (employer could not say merely
that employee was fired for breaking rules, but also "would
have to identify the rules and perhaps the occasions of their
violation, and offer some indication that it had considered
these violations in its deliberations prior to the
discharge").
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materials taken together are a substantial case for the
company--the case would be a stronger one if more had been
said about the qualifications of the four men hired instead
of Woods--the materials certainly amount to some evidence in
support of the articulated reason.
Finally, it does not matter in the present case
whether Massachusetts turns out to follow Hicks as construed
_____
by the EEOC rather than as we have construed it. Whatever
weight a disbelieved reason may have in supporting an
inference of discriminatory intent, Woods has not created "a
genuine issue of fact on the question of whether the
employer's asserted explanation for its actions is worthy of
credence." See p. 11, n.3, supra. The jury might conclude
___ _____
that Woods was at least minimally qualified based on his past
record, but there is no evidence that the employer's asserted
explanation--that it found four other men better qualified--
is pretextual.
2. Mass. Gen. L. ch. 93 102 and 103.
2. Mass. Gen. L. ch. 93 102 and 103.
________________________________________
Lastly, Woods claims that the district court erred
in finding that his Mass. Gen. L. ch. 93 102 and 103
claims were preempted by Mass. Gen. L. ch. 151B. Woods'
argument, however, is not supported in the caselaw. See
___
Martin v. Envelope Div. of Westvaco Corp., No. CIV. A. 92-
______ ________________________________
30121-MAP, 1994 WL 162354, at *11 (D. Mass. Apr. 29, 1994)
(collecting federal and state court cases holding that Mass.
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Gen. L. ch. 151B provides the exclusive remedy in
Massachusetts for employment related discrimination claims);
see also DeFazio v. Delta Air Lines, Inc., 849 F. Supp. 98,
___ ____ _______ _____________________
103 (D. Mass. 1994) (holding that the reasoning of state and
federal cases which find Mass. Gen. L. ch. 93 102
employment discrimination claims to be preempted by Mass.
Gen. L. ch. 151B "applies with equal force to [employment
discrimination] claims under Chapter 93, 103").
In sum, we agree with the district court that
the adequacy of the remedies afforded
under Mass. Gen. L. ch. 151B, the
efficiency of a uniform legislative
remedy, the importance of giving effect
to the procedural prerequisites of Mass.
Gen. L. ch. 151B, and the absence of
clear guidance from the Massachusetts
Supreme Judicial Court, all support the
finding that Mass. Gen. L. ch. 151B is
the exclusive state law remedy for
employment discrimination complaints.
Woods v. Friction Materials, Inc., 836 F. Supp. 899, 908 (D.
_____ ________________________
Mass. 1993) (citing Bergeson v. Franchi, 783 F. Supp. 713 (D.
________ _______
Mass. 1992)).
III.
III.
____
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the order of the
district court granting summary judgment in favor of
defendant FMI is Affirmed.
_________
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