USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 94-1306
STEPHANIE S. SMITH,
Plaintiff, Appellant,
v.
STRATUS COMPUTER, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Laurence M. Johnson, with whom Ann E. Johnston and Fordham &
____________________ _________________ _________
Starrett, P.C., were on brief for appellant.
______________
Samuel A. Marcosson, Attorney, James R. Neely, Jr., Deputy
_____________________ ______________________
General Counsel, Gwendolyn Young Reams, Associate General Counsel, and
_____________________
Vincent J. Blackwood, Assistant General Counsel, were on brief for the
____________________
Equal Employment Opportunity Commission, amicus curiae.
David H. Erichsen, with whom Peter A. Spaeth, Ann K. Bernhardt,
__________________ ________________ ________________
and Hale and Dorr, were on brief for appellee.
_____________
____________________
November 21, 1994
____________________
STAHL, Circuit Judge. Plaintiff Stephanie S. Smith
STAHL, Circuit Judge.
_____________
sued her former employer, Stratus Computer, Inc. ("Stratus"),
for illegal sex discrimination. The district court granted
summary judgment for Stratus and Smith appeals. We affirm.
I.
I.
__
Standard of Review and Background
Standard of Review and Background
_________________________________
A. Standard of Review
______________________
Because we are reviewing a grant of summary
judgment, we view the facts in the light most favorable to
the non-moving party, drawing all reasonable inferences in
plaintiff's favor. Woods v. Friction Materials, Inc., 30
_____ _________________________
F.3d 255, 259 (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). When a
party fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party bears the burden of proof at trial, there
can no longer be a genuine issue as to any material fact: the
failure of proof as to an essential element necessarily
renders all other facts immaterial, and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v.
_____________
Catrett, 477 U.S. 317, 322-23 (1986). See also Woods, 30
_______ ___ ____ _____
-2-
2
F.3d at 259. Even in an employment discrimination case,
"`where elusive concepts such as motive or intent are at
issue, summary judgment may be appropriate if the nonmoving
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 v. R.J. Reynolds Tobacco Co., 896 F.2d
____________ __________________________
5, 8 (1st Cir. 1990)).
B. Factual and Procedural Background
_____________________________________
Smith was hired in May 1989 as director of product
marketing by Stratus, a Marlboro, Massachusetts, corporation
that designs, manufactures and sells "fault-tolerant"
computer systems and products -- i.e., products that enable
customers to remain on-line in the event of a system failure.
Previously, Smith had worked for more than five years as a
marketing director for another Boston-area computer company
and had earned master's and doctoral degrees in psychology
from the University of Illinois. Smith received from Stratus
a $115,000 starting salary, a $15,000 sign-on bonus, and
options on 7,000 shares of Stratus stock.
Smith's first months at Stratus proceeded smoothly.
In December 1989, William Thompson, Smith's supervisor and
Stratus's senior vice-president of marketing, gave her a
favorable performance review. Thompson described Smith's
start at Stratus as "excellent," and wrote that she was
-3-
3
"perceived as a substantial and valuable contributor to
Stratus." Thompson rated Smith's overall performance as
"exceed[ing] expectations in several significant areas," the
second-highest of five possible performance ratings.
Contemporaneous with her review, Smith received a 5% raise
and stock options for an additional 1,500 shares.
Around January 1990, as part of a company
reorganization, Smith came under the direct supervision of
Stratus co-founder Robert Freiburghouse, who held the title
of senior vice-president for marketing and engineering.
Before the reorganization, Thompson had recommended that
Smith be promoted to vice-president for product marketing --
a title that Smith thought was critical to her effective
interaction with executives in other departments.
Freiburghouse did not act immediately on Thompson's
recommendation; he testified in his deposition that he was
uncertain about her qualifications for the title. In April
1990, however, after personally supervising Smith for four
months, Freiburghouse recommended that Smith be named a vice-
president.
In June 1990, Smith received a 4.8% raise in
recognition of her new title as well as another 5% merit
raise, bringing her annual salary to $133,000. Although the
record contains no formal evaluation of Smith's work by
Freiburghouse, Smith stated that Freiburghouse told her that
-4-
4
she was one of his top two employees, and that John Young,
Stratus's vice-president for human resources, told her that
Freiburghouse was very enthusiastic about her performance.
In deposition testimony, Freiburghouse described Smith's
performance only as "satisfactory." Freiburghouse did say,
however, that if she had not been performing well enough to
merit the title of vice-president, he would not have
recommended her promotion.
In the fall of 1990, Smith learned that the company
would again be reorganized at the end of that year, this time
bringing her under the supervision of Gary Haroian, Stratus's
general manager of corporate operations.
The prospect of working for Haroian worried Smith.
Haroian had a different view of marketing's proper function
within the company; he thought marketing should focus more on
supporting the sales staff and conducting rigorous pricing
analyses and less on product development, which he saw as the
purview of the engineering department. Months earlier,
Haroian had expressed some reservations to Freiburghouse
about Smith's promotion to vice-president, although the
evidence does not indicate whether Smith ever learned about
this. Smith did know, however, about Haroian's differing
vision of the marketing function; she testified in her
deposition that she knew he "wasn't a fan." In a meeting
with Freiburghouse before the change took effect, Smith
-5-
5
expressed her concern about working for Haroian, even asking
Freiburghouse if she should quit. In her deposition, Smith
testified that she was not serious about quitting, but was
merely soliciting reassurance from Freiburghouse that she was
generally on the right track and would be able to work things
out with Haroian.
Things did not work out, though -- at least from
Haroian's perspective. Although Smith testified that she
received no indication that anything was seriously amiss
until a June 12, 1991, meeting with Haroian, Haroian
testified that the meeting was the culmination of several
weeks of mounting frustration over Smith's failure to
redirect the marketing effort in the way he desired. In
addition, Haroian testified that he had been hearing numerous
complaints about Smith's leadership and poor morale within
the marketing group. At the June 12 meeting, Haroian
outlined the problems he perceived, and Smith asked him
whether she should just take a severance package (Smith
testified that, as was her habit, she was reacting
emotionally, and was not serious about quitting). Haroian,
however, told Smith not to worry, that things were not all
that bad, and that he would think about how to proceed during
Smith's vacation, which was to begin the next day. Smith
went home that night and drafted a handwritten memo to
-6-
6
Haroian outlining how she proposed to solve the problems he
perceived in marketing.
While Smith was on vacation, Haroian heard further
complaints about Smith's lack of leadership and focus from
mid-level managers who reported directly to Smith. At the
end of June, Haroian spoke with Stratus's president, William
Foster, and Stratus's human resources vice-president, John
Young, about removing Smith from her position as marketing
vice-president. Both of them agreed that Haroian should take
such action. On July 1, 1991, the day Smith returned from
vacation, Haroian met with Smith in his office and informed
her that he was removing her from her job as marketing vice-
president.
Exactly what happened next is disputed, but we
accept Smith's version of events. Haroian offered her a
severance package extending over six months, which Smith
rejected as unacceptably short. Then, and only then, Smith
claims, did Haroian offer her another position in the company
-- a position on Haroian's staff with unspecified duties,
coextensive with the proposed severance period. Smith
interpreted Haroian's actions as termination of her
employment rather than a suggestion that she be permanently
reassigned; no one at Stratus ever advised her differently.
The day after her meeting with Haroian, Smith cleared out her
office at Stratus. A week later, she called a meeting with
-7-
7
her staff and announced that she was leaving, without making
clear to them whether she had been fired or had resigned.
During the week following her termination, Smith
met with John Young and another human resources manager,
Richard Marciante, to discuss her situation. Smith claims
that Marciante told her that she should not be overly
concerned about losing her job since her husband was employed
and could at least provide the family with one income.
Smith claims that her treatment was markedly
different from that of male vice-presidents and managers
whose performances were deemed unsatisfactory. Those
employees, Smith claims, either received more generous
severance packages than the six months offered to Smith or
were offered other suitable employment within the company.
In mid-July, when Smith asked Haroian why she was being
treated differently from these other executives, Haroian
simply shrugged. When Smith asked John Young the same
question, Young told her that he had asked Haroian that
__
question, and that Haroian had told Young that he simply
thought it better to sever Smith completely.
Smith filed complaints on October 15, 1991, with
both the Massachusetts Commission Against Discrimination and
the Equal Employment Opportunity Commission.1 Smith
____________________
1. Smith requested and received permission to withdraw her
complaints before both these agencies and pursue a private
action.
-8-
8
commenced this action on January 13, 1992, by filing a
complaint in federal district court. In her complaint, Smith
charged Stratus with illegal discrimination on the basis of
her sex in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e,2 violation of the Equal Pay Act of
1963, 29 U.S.C. 206(d)(1), and violations of various
Massachusetts laws. On October 8, 1993, the district court
granted Stratus's motion for summary judgment on the federal
claims, concluding that Smith had failed to adduce sufficient
evidence to support a jury finding that Stratus's stated
reason for dismissing her was a pretext for discrimination.3
This appeal followed.
II.
II.
___
Discussion
Discussion
__________
____________________
2. Title VII of the Civil Rights Act of 1964 provides in
relevant part:
It shall be an unlawful employment
practice for an employer--
(1) . . . to discharge any individual, or
otherwise to discriminate against any
individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of such
individual's race, color, religion, sex,
or national origin . . . .
42 U.S.C. 2000e-2(a).
3. The district court also ruled there was insufficient
evidence to proceed on Smith's claim under the Equal Pay Act.
Smith does not contest that ruling in this appeal. The
district court "remanded" Smith's state law claims to state
court pending the outcome of this appeal.
-9-
9
Smith makes two arguments on appeal. First, she
argues that the district court misinterpreted the Supreme
Court's holding in St. Mary's Honor Center, Inc. v. Hicks,
______________________________ _____
113 S. Ct. 2742 (1993), when it required her to adduce
evidence that Stratus's stated reason for her dismissal was a
pretext for discrimination. Second, Smith argues that even
___________________
if the district court interpreted Hicks correctly, its grant
_____
of summary judgment should nonetheless be reversed because
Smith introduced sufficient evidence to show that Stratus's
proffered reason for her dismissal was a pretext for
discrimination. We address each argument in turn.
A. The District Court's Interpretation of St. Mary's v.
_____________________________________________________________
Hicks
_____
When a Title VII plaintiff is unable to offer
direct proof of her employer's discrimination -- as is
usually the case and was so here -- we allocate the burden of
producing evidence according to the now-familiar framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
_______________________ _____
802-05 (1973). See Hicks, 113 S. Ct. at 2746. Under this
___ _____
framework, the plaintiff bears the initial burden of
establishing a prima facie case of sex discrimination. She
must show that (1) she is a member of a protected class; (2)
she was performing her job at a level that rules out the
possibility that she was fired for inadequate job
performance; (3) she suffered an adverse job action by her
-10-
10
employer; and (4) her employer sought a replacement for her
with roughly equivalent qualifications. Mesnick v. General
_______ _______
Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied,
_________ _____ ______
112 S. Ct. 2965 (1992). If the plaintiff successfully bears
this relatively light burden,4 we presume that the employer
engaged in impermissible sex discrimination. Texas Dept. of
______________
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
_________________ _______
If the employer articulates a legitimate, non-
discriminatory reason for its decision, however, the
presumption of discrimination vanishes, and the burden of
production shifts back to the plaintiff. The plaintiff must
____________________
4. Stratus argues that Smith failed to satisfy her prima
facie burden by not putting forth evidence sufficient to show
that she was qualified for the position, i.e., "`that [s]he
was doing [her] job well enough to rule out the possibility
____________________________
that [s]he was fired for inadequate job performance, absolute
or relative.'" Menard v. First Sec. Serv. Corp., 848 F.2d
______ _______________________
281, 285 (1st Cir. 1988) (quoting Loeb v. Textron, 600 F.2d
____ _______
1003, 1012 (1st Cir. 1979)). Stratus argues that Smith's
evidence of her adequate performance, consisting primarily of
a dated performance evaluation, pay increases and stock
options, in no way rules out the possibility that she was
fired for performing inadequately at the time in question.
The plaintiff's prima facie burden in Title VII
cases, however, is "not onerous." Mesnick, 950 F.2d at 823
_______
(1991). We have interpreted the prima facie requirement at
issue to mean that the plaintiff must put forth sufficient
evidence to "support an inference that [the plaintiff's] job
performance at the time of her discharge was adequate to meet
[the employer's] legitimate needs." Keisling v. Ser-Jobs For
________ ____________
Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994). In
_______________
Keisling, we held that a plaintiff's evidence of increased
________
responsibilities over time, positive feedback and pay
increases -- evidence similar to that adduced by Smith --
satisfied this element, even though the evidence did not
extend right up to the time of her discharge. We think that
Smith's evidence reasonably supports the same inference, and
thus we hold that she satisfied her prima facie burden.
-11-
11
then introduce sufficient evidence to support two additional
findings: (1) that the employer's articulated reason for the
job action is a pretext, and (2) that the true reason is
discriminatory. Woods, 30 F.3d at 260. The plaintiff may
_____
rely on the same evidence to prove both pretext and
discrimination, but the evidence must be sufficient for a
reasonable factfinder to infer that the employer's decision
was motivated by discriminatory animus. See Goldman, 985
___ _______
F.2d at 1117-18.
Smith argues that under Hicks, a Title VII
_____
plaintiff's burden in this final stage does not include
___
adducing evidence that an employer's true motivation was
discriminatory. In other words, Smith contends that a
factfinder presented with sufficient evidence of pretext but
no evidence of discrimination may always reasonably infer
______
that the employer's true motivation was discriminatory, and
that summary judgment against the plaintiff would therefore
be precluded in such circumstances. Thus, Smith asserts, the
district court's grant of summary judgment was improper
because a jury should have been permitted to infer from
Smith's evidence of pretext that the true reason for her
maltreatment was sex discrimination.
Smith's argument rests primarily on a passage from
Hicks in which the Court noted that "[t]he factfinder's
_____
disbelief of the reasons put forward by the defendant
-12-
12
(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 added). Our recent opinion in
Woods squarely addressed this issue, and we will not revisit
_____
it at length here. As stated in Woods, we interpret the
_____
above passage from Hicks as making 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. . .
______
. 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.
Woods, 30 F.3d at 261 n.3. Thus, the district court
_____
interpreted Hicks correctly when it ruled that, to survive
_____
Stratus's summary judgment motion, Smith had to adduce
sufficient evidence to support a finding that Stratus's
stated reason was not only a pretext, but that it was a
pretext for illegal sex discrimination.
B. Smith's Evidence of Discrimination
______________________________________
Smith's second argument is that the district court
erred in ruling that she failed to introduce sufficient
evidence of Stratus's discriminatory animus. Upon review of
-13-
13
the evidence, drawing all reasonable inferences in Smith's
favor, we agree with the district court.
Smith offers an abundance of evidence indicating
that Stratus found her performance more than satisfactory and
that, despite her concerns about working for Haroian, she
heard no substantial criticism of her performance until her
pre-vacation meeting with Haroian on June 12, 1991. Even if
we assume arguendo that this evidence is sufficient to
________
support a finding of pretext, it could not, standing alone,
possibly lead a reasonable jury to conclude that
discriminatory animus was the real motivation behind
Haroian's action. Title VII does not grant relief to a
plaintiff who has been discharged unfairly, even by the most
irrational of managers, unless the facts and circumstances
indicate that discriminatory animus was the reason for the
decision. See Mesnick, 950 F.2d at 825.
___ _______
Smith does offer other evidence purporting to show
discriminatory animus. More specifically, Smith alleges that
Stratus's treatment of her differed from that of a number of
male vice-presidents, who, Smith claims, were bounced from
their jobs but were afforded a much softer landing than she
was offered. As we explain below, however, Smith's evidence
is wholly inadequate to support these allegations in any
relevant way.
-14-
14
In a disparate treatment case, the plaintiff has
the burden of showing that she was treated differently from
"persons situated similarly `in all relevant aspects.'" The
________________________ ___
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st
________________ _________________
Cir. 1989) (quoting Smith v. Monsanto Chemical Co., 770 F.2d
_____ _____________________
719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986))
_____ ______
(emphasis added); see also Burdine, 450 U.S. at 258 ("[I]t is
___ ____ _______
the plaintiff's task to demonstrate that similarly situated
employees were not treated equally"); Mack v. Great Atlantic
____ ______________
and Pacific Tea Co., 871 F.2d 179, 182 (1st Cir. 1989)
_____________________
(affirming summary judgment where plaintiff failed to
demonstrate that "comparably credentialed" employees received
more favorable treatment). Thus, for us to compare Smith's
treatment with that of terminated or transferred male
executives in a meaningful way, Smith would have to show that
she was similarly situated to those men in terms of
performance, qualifications and conduct, "without such
differentiating or mitigating circumstances that would
distinguish" their situations. Mitchell v. Toledo Hosp., 964
________ ____________
F.2d 577, 583 (6th Cir. 1992). This she has utterly failed
to do.
First, Smith points to the treatment afforded
former Stratus vice-presidents Ray Hermo and Greg Sheard.
Freiburghouse testified in his deposition that, although he
knew nothing about the specifics of Hermo's and Sheard's
-15-
15
situations, he knew that their supervisors had been
dissatisfied with their respective performances. Young
testified in his deposition that Hermo received a severance
package, and that he was "sure there were others" who
received such packages. Company records indicate that Sheard
continued to receive his annual salary of $126,000 for up to
nine months following his last day at the company.
Smith also points to Freiburghouse's deposition
testimony about Bill Murphy. According to Freiburghouse,
Murphy filled a number of positions at different times at the
company's request. Freiburghouse testified that Murphy,
after completing his assigned task of eliminating a division
of the company, was named vice-president of sales, North
America Division. When asked if the company created that
position for him, Freiburghouse testified that he did not
know. Smith asserts in her brief that this evidence showed
that Murphy "was removed from his position, and defendant
Stratus created a position for him."
Freiburghouse also testified that two other male
vice-presidents, Jim Austin and Alex Lupinetti, were demoted
twice to positions of lesser responsibility.
As further evidence of disparate treatment, Smith
points to the case of Bill Elliot, her predecessor as
marketing vice-president. Elliot became vice-president of
strategic planning, a position that Haroian described as "a
-16-
16
high level individual contributor function," with only one
staff person working for him.
Smith's evidence fails to provide the factfinder
with a sufficient basis on which to conclude that she was
"similarly situated in all relevant aspects" to the male
vice-presidents she names. Other than Freiburghouse's
hearsay testimony that Sheard's and Hermo's supervisors were
"dissatisfied" in some unspecified manner, we know nothing
about the alleged performance problems of those two
individuals or the level of dissatisfaction of their
supervisors; as for the other four executives, there is no
__
indication that their job changes were due to poor
performance, nor would that be a permissible inference for a
jury to make on this scant record. Thus, this sketchy
evidence, lacking a sufficient foundation for a legally
relevant comparison of Smith and the male executives, cannot
support an inference that Smith's dismissal was motivated by
discriminatory animus.
Smith offers three additional snippets of evidence
to prove Stratus's discriminatory animus. First, Smith
points to Haroian's shrug in response to her question about
why she was being treated differently than a number of male
managers -- a tacit admission, she claims, of disparate
treatment. Next, Smith offers her recollection that Young
also asked Haroian why Smith was being treated differently
-17-
17
than male vice-presidents and was told that Haroian simply
thought it better to sever Smith completely. Finally, Smith
points to Marciante's comment telling her not to worry since
her husband still had an income. Haroian's shrug cannot be
considered an admission of discrimination. First, in Smith's
deposition testimony, she stated that she named the
_____
executives when she posed the question to Haroian -- not that
she asked him why she was being treated differently from
males. Thus, Haroian was not even being presented with an
_____
accusation of gender discrimination when he shrugged.
Second, Haroian could have meant any number of things, or
nothing at all, by his shrug; we find the shrug, under these
circumstances, to be so ambiguous that it is not just "of
little probative force," Menard v. First Sec. Serv. Corp.,
______ _______________________
848 F.2d at 288, but it is of absolutely no probative force
whatsoever.
We find little more probative value in Haroian's
statement to John Young. Even assuming that Young actually
asked Haroian why Smith was being treated differently than
male executives -- and not why she had not been offered
another position, as Smith's attorney suggests in a passage
from Young's deposition to which Smith specifically directed
our attention -- we fail to see how a reasonable jury could
infer from Haroian's answer any hint of discriminatory
animus.
-18-
18
Finally, Marciante's comment lends itself to many
possible interpretations. Smith claims that the comment
smacks of gender bias, denigrates the importance of her
career and "suggests a `men's club' atmosphere in which women
executives are viewed as dilettantes." Brief of
Plaintiff/Appellant at 45. Even if we accept this far-
fetched interpretation of Marciante's comment, the fact
remains that Marciante was a mid-level Stratus manager who
did not participate in the decision to remove Smith from her
job. Smith's failure to adduce any evidence that Marciante
made or influenced the decision to remove Smith from her job
makes the comment irrelevant to the issue of discriminatory
animus. See Medina-Munoz, 896 F.2d at 10 ("The biases of one
___ ____________
who neither makes nor influences the challenged personnel
decision are not probative in an employment discrimination
case.").
In sum, we find nothing in Smith's evidence that
would permit a reasonable jury to infer that discriminatory
animus motivated Stratus to remove Smith from her job. Thus,
there is no genuine issue as to any material fact, and
Stratus is entitled to judgment as a matter of law. See
___
Woods, 30 F.3d at 259.
_____
For the foregoing reasons, the district court's
grant of summary judgment is
AFFIRMED.
AFFIRMED.
-19-
19
