Filed: Sep. 05, 2003
Latest Update: Feb. 22, 2020
Summary: , Anabel Rodríguez with whom Carl Schuster, Rafael Lázaro-Castro, and Schuster Usera & Aguiló, LLP were on brief for appellee Janssen, Ortho, LLC.decisions in each of the four instances.discrimination case;intentional discrimination, Tex. Dep't of Cmty.elements precludes gender discrimination;
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1207
NIDIA ACEVEDO,
Plaintiff, Appellant,
v.
JOHNSON & JOHNSON,
JANSSEN PHARMACEUTICAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Baldock,* Senior Circuit Judge.
Wilma E. Reverón-Collazo for appellant.
Anabel Rodríguez with whom Carl Schuster, Rafael Lázaro-Castro
and Schuster Usera & Aguiló, LLP were on brief for appellee Janssen
Ortho, LLC.
September 5, 2003
*
Of the Tenth Circuit, sitting by designation.
Per Curiam. This is an appeal in a gender discrimination
case brought under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000-e (2000). Applying the familiar McDonnell-Douglas
framework, the district court determined that plaintiff Nidia
Acevedo had established a prima facie case of gender discrimination
against her former employer, Johnson & Johnson Janssen
Pharmaceutical ("Janssen"), based primarily on four occasions when
Janssen promoted or appointed men instead of Acevedo to positions
sought by the latter and for which she was arguably qualified. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
However, under McDonnell Douglas all that a prima facie
case does in the first instance is shift the burden to the employer
to offer legitimate non-discriminatory reasons for the challenged
actions. 411 U.S. at 802-03. Here the district court determined
that Janssen had offered "ample evidence" to fulfill its burden by
providing plausible non-discriminatory reasons for the company's
decisions in each of the four instances. Indeed, according to the
district court, the evidence suggested that the men selected over
Acevedo were actually "better qualified for the positions" than she
was.
Weighing the company's motion for summary judgment, the
district court determined that Acevedo had not provided sufficient
evidence to permit a reasonable jury to conclude that Janssen's
articulated reasons for the controverted decisions were pretextual
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or that the company acted at least in part with discriminatory
animus. See Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 673-74
(1st Cir. 1996). The district court therefore granted summary
judgment to Janssen. Acevedo now appeals, and our review is de
novo. Gu v. Boston Police Dep't,
312 F.3d 6, 10 (1st Cir. 2002).
That a qualified woman was passed over four times in
favor of men is certainly a useful foundation for building a gender
discrimination case; but in this instance the company provided
plausible and supported reasons for its conclusions that the men
were even better qualified. Acevedo could have sought to show that
the explanations were false or implausible and she might then at
least have argued that the false explanations and the foundation
together comprised enough evidence to get to a jury. But the
explanations were not effectively countered.
Or alternatively she could have sought to show that there
was independent evidence of gender bias associated with one or more
of the decisions. Yet, though she bore the burden of proof to show
intentional discrimination, Tex. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253, 256 (1981), she did not persuasively pursue this
course either; we have considered the arguments on this point made
in her brief but agree with the district court that a jury could
not rationally conclude that gender discrimination was at work.
The surrounding circumstances also work against Acevedo's
claim. The "all boys club" of upper-level managers to which
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Acevedo repeatedly refers had at least one high-ranking female
member, Juanita Hawkins. When later in the saga Acevedo's
responsibilities were significantly pruned to allow her to focus on
her core activities--admittedly well performed--many of the
reallocated tasks were given to another woman. And when Acevedo
announced that she was quitting, Janssen managers apparently made
strenuous efforts to persuade her not to leave. None of these
elements precludes gender discrimination; but their presence, in
the absence of any affirmative evidence of gender based animus,
makes this a very straightforward case.
Affirmed.
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