
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                      ____________________        No. 94-2176                                 JOSEPH ANTHONY FAUSTO,                                Plaintiff, Appellant,                                          v.                                 JOHN J. WELCH, JR.,                            ACTING SECRETARY OF AIR FORCE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Joseph Anthony Fausto on brief pro se.            _____________________            Donald K.  Stern, United  States Attorney,  and Thomas E.  Kanwit,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                   August 29, 1995                                 ____________________                      Per  Curiam.   Plaintiff-appellant  Joseph  Anthony                      ___________            Fausto   appeals  pro  se  from  entry  of  summary  judgment                              ___  __            disposing  of  his  claim that  the  Air  Force discriminated            against  him, based on his gender, when it failed to hire him            as an administrative officer.  For the following  reasons, we            affirm.                                          I.                 The  relevant background  is  fully  and accurately  set            forth in the  district court's memorandum  and order, and  we            need only  provide a  brief summary here.   On May  29, 1984,            Fausto applied  for the position  of Administrative  Officer,            GS-11,  at an  Air  Force  facility  located  in  Wilmington,            Massachusetts.  The  evidence in the record  establishes that            Fausto  was  one  of eight  candidates  interviewed  for this            position;  that  the  candidates   were  scored  after  their            interviews; that Fausto  received the lowest score;  and that            Fausto's low score was due,  in part, to his poor performance            during his oral interview.1   There is some evidence that the            highest scoring candidate,  a woman, was offered the  job and            declined for  personal reasons.   In any  event, none  of the            remaining  candidates was offered the position.  Instead, the            job  was  restructured  as  a  GS-9  developmental  position,                                            ____________________            1.  Fausto suggests,  without  evidentiary  basis,  that  the            other  interviewees  never  existed.    In  addition,  Fausto            submitted his own affidavit proclaiming that he had performed            well during his oral interview.              reannounced, and  eventually offered to Rosemary  Tremblay, a            woman   who  had   been  shouldering   many   of  the   job's            responsibilities for some months.                 Having  exhausted  his administrative  remedies,  Fausto            filed suit in  the district court  against defendant-appellee            John J.  Welch,  Jr.,  Acting Secretary  of  the  Air  Force,            alleging discriminatory  treatment in violation of  Title VII            of the  Civil Rights Act  of 1964, 42  U.S.C.   2000e.   Both            parties  moved for  summary judgment.    The district  court,            relying  on the  three-stage,  burden-shifting framework  set            forth  in McDonnell  Douglas  Corp. v.  Green,  411 U.S.  792                      _________________________     _____            (1973), found that Fausto had established a prima facie  case                                                        _____ _____            of discrimination.   The court  found, however, that  the Air            Force  successfully   had   rebutted   the   presumption   of            discrimination  arising from  Fausto's  prima  facie case  by                                                    _____  _____            articulating a legitimate,  non-discriminatory reason for its            decision,  namely, Fausto's low  candidate ranking.  Finally,            the court concluded that Fausto had failed to submit evidence            sufficient  to permit a  reasonable factfinder to  infer that            the Air Force discriminated against him because he is a male.            Accordingly, the court  granted summary judgment in  favor of            the Air Force.2                                            ____________________            2.  Fausto  also alleges  in  his complaint  that he  was the            victim of retaliation  for filing a complaint with  the Equal            Employment  Opportunity  Commission.     The  district  court            granted summary judgment  for the Air Force on  this claim on            the ground that  Fausto failed to present a  prima facie case                                                         _____ _____                                         -3-                                         II.                 The basic order and allocation  of burdens of proof in a            Title VII  discriminatory treatment  case was  limned by  the            Supreme Court in  McDonnell Douglas, 441 U.S.  at 802-05, and                              _________________            expounded in St. Mary's Honor Ctr.  v. Hicks, 113 S. Ct. 2742                         _____________________     _____            (1993).   Where,  as here,  there  is no  direct evidence  of            discrimination,  the plaintiff  bears the  initial burden  of            establishing a prima facie case of discrimination.  See Smith                           _____ _____                          ___ _____            v. Stratus  Computer, Inc., 40  F.3d 11, 15 (1st  Cir. 1994),               _______________________            cert.  denied, 115  S. Ct.  1958  (1995).   If the  plaintiff            _____________            establishes  a prima  facie case,  the burden  shifts to  the                           _____  _____            employer  to  articulate   a  legitimate,  non-discriminatory            reason for its  decision.  See Mesnick v.  General Elec. Co.,                                       ___ _______     _________________            950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 504 U.S. 985                                               ____________            (1992).    Finally, if  the  employer meets  its  burden, the            plaintiff must introduce sufficient evidence to show that the            employer's  justification  is  a pretext  and  that  the true            reason for its action is  discriminatory.  See Smith, 40 F.3d                                                       ___ _____            at 16.   We  review the  grant of  summary judgment  de novo,                                                                 __ ____            viewing   the  evidence,   and   the  reasonable   inferences            therefrom, in  a light most favorable to  the party resisting            summary  judgment.   Woodman v.  Haemonetics  Corp., 51  F.3d                                 _______     __________________            1087, 1091 (1st Cir. 1995).                                            ____________________            of retaliation.   Fausto does not argue that  this was error,            and we deem the issue waived.                                           -4-                 A.  Defendant's Burden of Production                 Once  Fausto  made out  a  prima  facie case  of  gender                                            _____  _____            discrimination,  the Air Force  was required to  articulate a            legitimate,   non-discriminatory  reason   for  its   adverse            decision.  Fausto argues that, in the procedural posture of a            motion for summary judgment, the district court impermissibly            judged  the credibility of  the affiants in  determining that            the Air Force met its  burden.  Fausto also contends, relying            on  Milton  v. Weinberger,  645  F.2d 1070,  1079  (D.C. Cir.                ______     __________            1981), that his  low score, relative to the  other candidates            who were interviewed,  could not be used to  justify his non-            selection.  These arguments fail.                First, an employer's burden at the second stage is merely            a burden of production; it must introduce evidence  which, if            "taken as true,"  would permit an inference that  there was a            non-discriminatory reason for the adverse action.  Hicks, 113                                                               _____            S. Ct.  at 2748.   Second, Milton is inapposite.   In Milton,                                       ______                     ______            the  District  of  Columbia Circuit  held  that  the relative            rankings of  candidates before  their  interviews could  not,            alone, serve as a legitimate  reason for the non-selection of            the  appellants  where  it was  apparent  that  the selecting            official did  not rely solely  on these rankings to  make his            decision.   See Milton,  645 F.2d at  1079.   In the  instant                        ___ ______            case, the relative  rankings introduced by the Air Force were            final  rankings of  the  candidates after  their  interviews.                                         -5-            Moreover,   the   Air   Force   introduced   other   evidence            demonstrating that Fausto's  interview went  poorly and  that            the  selecting officials believed  he lacked the  capacity to            perform the job.  Under  the circumstances, the Air Force met            its burden of production.                 B.  Plaintiff's Burden of Showing Discriminatory Animus                 At  the third and  final stage,  Fausto was  required to            proffer  sufficient evidence to  prove by a  preponderance of            the evidence that the Air Force's  justification was merely a            pretext for gender discrimination.  Woodman, 51 F.3d at 1091-                                                _______            92.  We are persuaded that Fausto  failed to meet this burden            essentially for the reasons stated by the district court.  We            add the following.                 Contrary to Fausto's  suggestion, the fact that  the Air            Force   redacted  the  names  of  the  other  candidates  and            identified them  solely  by their  sex  for purposes  of  its            summary judgment  motion  does not support an inference  that            these  candidates  did not  exist or  that their  scores were            fabricated.  See  Byrd v. Ronayne, 1995 WL 461827  at *3 (1st                         ___  ____    _______            Cir. Aug.  9, 1995) (summary  judgment cannot be  defeated by            reliance "upon conclusory allegations, improbable inferences,            and  unsupported speculation"  (quoting Medina-Munoz  v. R.J.                                                    ____________     ____            Reynold Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))).             ___________________                 We also reject Fausto's suggestion that summary judgment            was improper  because he  submitted evidence  from which,  he                                         -6-            claims, it could be inferred that he was better qualified for            the  position  of administrative  officer  than  was Rosemary            Tremblay.3   The  unrebutted  evidence  that  both  male  and            female  candidates  were  passed  over  in  the  decision  to            restructure the  job  makes  improbable  the  inference  that            Tremblay was offered the position at a lower grade because of            her gender.   More importantly, the unrebutted  evidence that            Fausto  had  the  lowest  ranking  of  the  eight  candidates            interviewed  renders  implausible the  inference  that gender            bias was  a motivating factor  in the decision not  to select            him.  Cf. Gilty v. Village  of Oak Park, 919 F.2d 1247,  1253                  ___ _____    ____________________            (7th  Cir. 1990) (upholding  grant of summary  judgment where            race discrimination claimant would have placed no higher than            fifth  on the  eligibility list  even in  the absence  of the            alleged discrimination).                 Affirmed.                 ________                                            ____________________            3.  Fausto submitted a  copy of his  form SF-171, a  standard            government form providing detailed employment history,  and a            copy of Rosemary Tremblay's resume.                                         -7-
