
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
