
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1049                                     PRIYA K. DAS,                                Plaintiff, Appellant,                                          v.                        CIBA CORNING DIAGNOSTICS CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Priya K. Das on brief pro se.            ____________            Edward N. Perry and Perkins, Smith & Cohen on brief for appellee.            _______________     ______________________                                 ____________________                                     June 8, 1993                                 ____________________                      Per  Curiam.    In 1988  Ciba  Corning  Diagnostics                      ___________            Corporation  ("Ciba")  placed  an  advertisement  seeking   a            "manufacturing engineer-mechanical."   Priya K. Das  applied,            but was not hired, or, for that matter, granted an interview.            He  sued Ciba alleging,  under various legal  theories,1 that            he  was denied  employment because  of his  age  and national            origin.   After  some discovery,  a hearing  was held  on the            parties'  cross motions for  summary judgment.   The district            court  granted  summary  judgment in  Ciba's  favor  and also            allowed its  motion  for sanctions,  fining  Das $250.    Das            appeals both rulings.  Finding no error, we affirm.                                       BACKGROUND                                      BACKGROUND                                      __________                      The facts are essentially undisputed and we recount            them in a light favorable to the plaintiff.                      The advertisement that gave rise to this litigation            described  Ciba as a  company engaged in  medical diagnostics            and biomedical research.  The  ad stated: "We are looking for            an individual  to provide mechanical  engineering support  to            the medical  instrument assembly  and test areas.  . .  . The            ideal  candidate will have  a B.S. in  Mechanical Engineering                                            ____________________            1.   Das' suit alleged violations  of Title VII, 42 U.S.C.               2000e  et  seq.;  the Age  Discrimination  in  Employment Act                   ________            ("ADEA"), 29 U.S.C.    621 et seq.; and the  Civil Rights Act                                       _______            of 1866,  42 U.S.C.    1981.   "[T]he standards  of liability            under all [of  these statutes] are substantially  identical,"            Villanueva  v. Wellesley College, 930  F.2d 124, 126 n.2 (1st            __________     _________________            Cir.), cert. denied, 112 S.  Ct. 181 (1991), and the district                   _____ ______            court, accordingly, analyzed Das' claims collectively.                                            -2-            and  3-5 years of experience in a manufacturing environment."            Of 57  applicants, Das  and 53  others were  not interviewed.            Born and educated  in India, Das was  46 years of age  at the            time.   Ciba hired  a younger  candidate who  possessed, like            Das, a  B.S. in mechanical  engineering, but  had only  three            years  of  work  experience.   Dissatisfied  with  the hiring            decision, Das wrote to Ciba  for an explanation.  The company            responded that Das'  25 years of experience were  not a "good            fit"  with  the criteria  set  for the  entry  level position            advertised.  This suit ensued.                      In an  affidavit supporting its  motion for summary            judgment  Ciba averred  that Das' application  was eliminated            because (1) the company was  not interested in candidates who            changed jobs every  two years: "Das' excessive  `job hopping'            made him a very unattractive candidate," and (2) none of Das'            experience  related to the  medical or biomedical  field.  It            was  attested that the  hired candidate's hands-on experience            in plastics was the deciding factor in making a job offer due            to the  increased use of plastic  parts in the industry.   As            such,  the hiree possessed  more relevant experience  for the            advertised position under the hiring criteria then in place.                      In   opposition,  Das   pointed  to   his  superior            education   and   experience  which,   he   declared   in  an            accompanying affidavit, fully qualified him for the job.  The            denial  of employment because  of his 25  years of experience                                         -3-            shows,  he  asserted,  that   Ciba's  selection  process  was            grounded  in age bias.  And, Das  claimed, the fact that Ciba            later  changed its story  and offered a  different rationale,            i.e., that he  was a job-hopper, signified a  cover-up of the            true reason for  the hiring decision.  According  to Das, his            job changes were  either for career advancement or the result            of   layoffs,  plant  closings,  and  the  like,  all  common            occurrences in  manufacturing industries.   Accordingly,  the            job-hopper label was  untrue, and  merely a  pretext for  the            real reason: age discrimination.                      Following a hearing, the district court ruled  from            the  bench that  Das, in  attacking  the person  hired as  an            unqualified  candidate,  had  failed  to  offer  sufficiently            probative evidence from which  a fact-finder could reasonably            infer that defendant's  hiring reasons were a pretext for age            or  national  origin  discrimination.    Accordingly,  Ciba's            motion  for summary  judgment was  allowed,  and Das'  cross-            motion for summary judgment was denied.                                      DISCUSSION                                      DISCUSSION                                          I                                          _                      This suit  is virtually  identical to  three others            brought  by Das  after he  was  not hired  for an  advertised            engineer  position  solely  because of  the  contents  of his            resume.   See Das  v. Cri-Tech, Inc.,  No. 90-1769,  slip op.                      ___ ___     ______________            (1st Cir. Jun. 12, 1991)  (Das I);  Das v. Bowmar/Ali,  Inc.,                                       _____    ___    _________________                                         -4-            No. 90-2096, slip op. (1st Cir. Jun. 21, 1991) (Das II),  and                                                            _______            Das v. A.W.  Chesterton Co., No. 91-1159, slip  op. (1st Cir.            ___    ____________________            Sept. 24, 1991) (Das  III).  Each prior appeal -  - also from                             ________            an adverse  summary judgment  - - was  affirmed on  the basis            that  Das  had  failed  to  present  any  probative  evidence            permitting an  inference that  the hiring  decision masked  a            discriminatory motive or  was otherwise incredible.   In this            appeal,   we   focus,   as  does   appellant,   on   the  age            discrimination claim.                      In Das  I and  Das II, we  described the  standards                         ______      ______            applicable  to summary  judgment  in the  disparate treatment            employment discrimination context,  and do not  restate them.            See  also Goldman  v. First  Nat'l Bank  of Boston,  985 F.2d            ___  ____ _______     ____________________________            1113, 1116-18 & n.4 (1st  Cir. 1993).  The Supreme Court  has            recently  clarified the  standards  for  liability under  the            ADEA.   Hazen Paper Co. v.  Biggins, 113 S. Ct.  1701 (1993).                    _______________     _______            The Court  explained that  "there is  no disparate  treatment            under the ADEA  when the  factor motivating  the employer  is            some feature other than the  employee's age," id. at 1705; "a                                                          ___            disparate   treatment  claim   cannot   succeed  unless   the            employee's protected  trait actually  played a  role in  [the            employer's  decisionmaking] process  and had  a determinative            influence on the outcome."  Id. at 1706.                                        ___                      We  assume, as  did the  district  court, that  Das            satisfied the  prima facie rubric  for hiring  discrimination                                         -5-            claims.  Keyes v. Secretary of the Navy, 853 F.2d 1016,  1023                     _____    _____________________            (1st Cir. 1988).   Ciba clearly and  sufficiently articulated            permissible   non-discriminatory  reasons   for  its   hiring            decision, requiring Das to show that explanation "unworthy of            credence,"  that is, "not the true  reason for the employment            decision."  Texas  Dep't of Community Affairs v. Burdine, 450                        _________________________________    _______            U.S. 248, 256 (1981).                      We conclude, relying on the analysis set out in Das                                                                      ___            II, that  plaintiff failed  to undercut  the plausibility  of            __            Ciba's  proffered  rationale  with  specific  facts (and  not            merely  subjective conclusions) that  would enable a  jury to            find that age  was an undisclosed,  motivating factor in  the            hiring decision.   In so  deciding, we note, first,  that Das            has  not attempted  to counter  Ciba's  explanation that  his            resume  indicated  no  experience  in the  medical/biomedical            fields.  Second, regarding Das' claim that  Ciba "changed its            story" and  later offered a  different reason for  not hiring            him, Das  has failed  to show that  those later  reasons were            premised  upon  discriminatory  motive.   As  we  have stated            before:  "Since an  employer's nondiscriminatory  motivations            for adverse  employment decisions  are irrelevant  in an  age            discrimination  case, a  `mere  showing  that the  employer's            articulated    reason    may   shield    another    (possibly            nondiscriminatory)  reason  does  not  create  a  dispute  of            material  fact' sufficient  to  withstand summary  judgment."                                         -6-            Goldman,   985  F.2d  at  1118  n.4  (quoting  Villanueva  v.            _______                                        __________            Wellesley  College, 930  F.2d  124,  128  (1st  Cir.),  cert.            __________________                                      _____            denied, 112 S. Ct. 181 (1991)).            ______                      Finally,  Das stresses the role that his many years            in the  field may have played  in hurting his chances  to get            the job.   He argues that hiring criteria which impermissibly            favor a minimum number of years of work experience make age a            determining  factor in the selection process and, because age            and experience  are directly  related, effectively  eliminate            all applicants over 40 years of age.  The Biggins decision is                                                      _______            instructive  on this  point.   In deciding  that a  dismissal            based   solely  on  pension  status  was  not  discriminatory            treatment on  the basis of  age for ADEA purposes,  the Court            emphasized  that  "[b]ecause  age and  years  of  service are            analytically  distinct, an employer  can take account  of one            while ignoring  the other,  and thus it  is incorrect  to say            that a  decision based  on years  of  service is  necessarily            `age-based'."  Biggins,  113 S. Ct.  at 1707.   Consequently,                           _______            the ADEA  is  not violated  when  the factor  motivating  the            employment decision merely correlates  with age, i.e.,  gives            rise to a  permissive and not a necessary inference.  By like            token, having failed to show  that age actually played a role            in the decision not to hire him, Das may not, under  Biggins,                                                                 _______            ask  us to  presume that  the employer's  decision to  hire a            candidate   with  significantly   less  work   experience  is                                         -7-            automatically age-based.  As Biggins makes plain, even if, as                                         _______            Das speculates, older  workers are likely to  have more years            of work experience, Ciba's decision to hire an engineer  with            three  years of  desired experience  does  not, without  more            evidence  than is offered here, implicate the prohibitions of            the ADEA.2                                          II                                          __                      We turn to  the issue of sanctions.  In  Das II, we                                                               ______            upheld a $1420 award of attorneys' fees and costs against Das            under Fed. R. Civ. P. 11.  Here, Ciba contended that  Das had            violated  Rule 11  by  irresponsibly maintaining  this action            after  three  similar  (and  similarly meritless)  complaints            against  other corporate defendants had been dismissed.  Ciba            sought attorneys' fees  and costs in excess of  $12,000.  The            district court found that Das' claims, filed in October 1989,            were  brought in good  faith and were  objectively reasonable            until the filing of his cross motion for summary judgment one            year  later.    By that  time,  Das  I and  Das  II  had been                                            ______      _______            dismissed in the  district court, and Das had  reason to know            that his  cross motion was  neither well founded in  fact nor            warranted in existing  law.  Taking into account  Das' pro se                                                                   ___ __            status,   the  court  concluded  that  a  $250  sanction  was                                            ____________________            2.  Nor  do we  read Das'  complaint  to state  a claim  that            Ciba's  facially  neutral hiring  practices impact  older job            applicants  more harshly.   The  Court has  not  recognized a            "disparate  impact"  theory  of  liability  under  the  ADEA.            Biggins, 113 S. Ct. at 1706.            _______                                         -8-            appropriate.    We  find  no  abuse  of  discretion  in  this            carefully  considered determination.    Anderson v.  Beatrice                                                    ________     ________            Foods Co., 900 F.2d 388, 394 (1st Cir.)  ("The trial judge is            _________            best  positioned  to   decide  what  sanction  best   fits  a            particular  case or best responds to  a particular episode or            pattern  of errant  conduct."), cert.  denied,  498 U.S.  891                                            _____  ______            (1990).                      The   defendant-appellee    requests   costs    and            reasonable attorneys' fees  for defending this appeal.   When            Das, who has proceeded pro se throughout, noticed this appeal                                   ___ __            in January 1992, he knew that the same arguments advanced now            had been rejected  in Das I, Das  II, and Das III  and should                                  _____  _______      _______            have realized that no valid  grounds for appeal existed here.            Considering this litigation history,  the frivolous nature of            this appeal, and  taking into account Das' pro  se status, we                                                       ___  __            assess double costs and damages in  the amount of $500.  Fed.            R. App. P. 38; see La  Amiga del Pueblo, Inc. v. Robles,  937                           ___ __________________________    ______            F.2d 689,  692 (1st Cir. 1991); N.E. Alpine Ski Shops v. U.S.                                            _____________________    ____            Divers Co., 898 F.2d 287, 291 n.1 (1st Cir. 1990).            __________                      The  judgment of  the district  court  is affirmed;                      ___________________________________________________            double costs and $500 awarded to the appellee.            _____________________________________________                                         -9-
