

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1929

                         PATRICK PERKINS,

                      Plaintiff, Appellant,

                                v.

                    BRIGHAM &amp; WOMEN'S HOSPITAL
                               and
                         GEORGE H. KAYE,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]                                                                 

                                             

                              Before

                     Selya, Boudin and Lynch,

                          Circuit Judges.                                                  

                                             

     Daniel S.  Sharp, with whom Elaine  Whitfield Sharp, Barbara                                                                           
C.  Johnson, and  Whitfield  Sharp &amp;  Sharp  were on  brief,  for                                                     
appellant.
     Richard P. Ward,  with whom  Bonnie B. Edwards  and Ropes  &amp;                                                                           
Gray were on brief, for appellees.              

                                             

                          March 21, 1996

                                             

          SELYA, Circuit Judge.  In this case, Brigham &amp;  Women's                    SELYA, Circuit Judge.                                        

Hospital  (the  Hospital)  allegedly   fired  plaintiff-appellant

Patrick Perkins, an African-American male,  because it discovered

that  he  had engaged  in  a despicable  pattern  of work-related

sexual harassment over a protracted  period of time.   Apparently

convinced  that the best defense is a good offense, Perkins sued.

Unimpressed by this effort to turn the tables, the district court

rejected  Perkins' claims  of  race-based  discrimination at  the

summary judgment stage.  On appeal, Perkins accuses  the court of

straying  down the wrong path.   Undertaking de  novo review, see                                                                           

Smith v. F.W. Morse &amp; Co.,     F.3d    ,     (1st Cir. 1996) [No.                                   

95-1556, slip op. at 29], we find no navigational error.

I.  BACKGROUND          I.  BACKGROUND

          We  depict  the  facts   (which  are  by  any  standard

unpleasant)  in  the  light   least  hostile  to  the  appellant,

consistent  with record  substantiation.   See, e.g.,  Garside v.                                                                        

Osco  Drug,  Inc., 895  F.2d 46,  48 (1st  Cir.  1990).   In this                           

process,   we  weed   out  "conclusory   allegations,  improbable

inferences, and  unsupported speculation."   Medina-Munoz v. R.J.                                                                           

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).                              

          The appellant worked at the Hospital as a  patient care

assistant.      He  garnered   generally   favorable  performance

evaluations  over a ten-year span,  but his record  was marred by

several  instances of  misconduct (which  led to  warnings and/or

suspensions).   In mid-1990 a more serious incident occurred:  in

the  dead of  night, the  appellant  invaded a  restricted lounge

                                2

where  two female  radiology  technicians  were sleeping  between

cases.   One woman claimed  that, upon awakening,  she discovered

the  appellant staring  at her  from the  foot of  her bed.   The

technicians  reported  the   occurrence  and  informed   Hospital

officials that the appellant had made sexual overtures to each of

them  on  prior  occasions.1     A  supervisor  added  background

information,  revealing that  the  appellant  habitually  uttered

"flirtatious statements."

          The  Hospital   moved  to  terminate   the  appellant's

employment in the wake of this episode but the in-house Grievance

Review  Board (the Board) reduced the proposed penalty to a four-

week suspension without pay.  Withal, the Board  acknowledged the

appellant's unfortunate penchant for making salacious comments to

female employees, and advocated "appropriate disciplinary action"

if this meretricious behavior continued.

          In November  of 1991    roughly seventeen  months after

his  nocturnal caper in  the technicians' lounge    the appellant

telephoned  a nurse  while she  was participating  in a  surgical

procedure and loudly warned her not to call him "Pat."  There was

a  history leading  up to this  call, and  the nurse  demanded an

investigation   of  what   she  described   as   the  appellant's

"harassment" of  her.   Perkins' supervisor,  an African-American

                                                  

     1According to  one woman,  Perkins often  asked  her out  on
dates,  and  in  one instance,  when  she  replied  that she  was
married,  he retorted  that "I  don't want  your husband,  I want
you."   The other  woman  revealed that  when, in  the course  of
Perkins'  amorous  pursuit,  she  mentioned  her  gravidity,   he
responded:  "Pregnant women turn me on."

                                3

woman, suspended him pending further review of the incident.

          George  Kaye, the  Hospital's vice-president  for human

resources, considered the  nurse's complaint in conjunction  with

reports from operating room managers that the appellant continued

to engage  in  inappropriate sexual  banter and  innuendo.   Kaye

retained Nancy Avery, an independent social worker, to conduct an

inquiry.    The  Hospital   adopted  an  investigatory   protocol

calculated  to  provide  a  confidential forum  in  which  female

employees could  safely discuss  their experiences  vis-a-vis the

appellant.

          Avery's report  was  damning.   It  recounted  numerous

episodes  of unacceptable  behavior  involving the  appellant and

myriad female employees.   It  would serve no  useful purpose  to

take  a complete inventory of these tawdry vignettes.  Suffice it

to  say that the list  includes instances in  which the appellant

described his  sexual prowess  in explicit detail,  boasted about

the length  of  his  penis,  exposed  himself,  patted  a  female

employee's buttocks,  and proposed a menage-a-trois.   The report

also memorialized  the appellant's threats  to retaliate  against

women  who declined his advances by, for example, warning that he

would slash their  tires (and, in one case, that  he would not be

averse to attacking a woman in a garage).

          Kaye concluded  that the  appellant had engaged  in the

misconduct  described  by  Avery,  and  cashiered  him  effective

February  7,  1992.   This  time  the  Board,  after hearing  the

appellant's denial of the allegations, upheld his ouster.

                                4

          The  appellant brought  suit in  a Massachusetts  state

court charging  inter alia racial discrimination.2   The Hospital                                    

removed the case to a federal forum.  Discovery lasted for over a

year.   When the Hospital thereafter  requested summary judgment,

the district  court obliged.  Overriding  Perkins' objection, the

court ruled as a matter  of law that, although he had made  out a

prima  facie case  of racial  discrimination under  the McDonnell                                                                           

Douglas  burden-shifting model,  see McDonnell  Douglas Corp.  v.                                                                       

Green,  411  U.S. 792,  802  (1973),  the Hospital  had  produced               

evidence of a legitimate, nondiscriminatory justification for the

discharge,  namely, the extensive  misconduct related  in Avery's

report, sufficient  to meet its  burden of production  under that

model; that the record revealed no evidence probative of pretext;

and that,  therefore, no rational factfinder  could conclude that

the  Hospital  dismissed Perkins  on account  of  his race.   See                                                                           

Perkins  v. Brigham &amp; Women's  Hosp., Civ. No.  93-11701- DPW (D.                                              

Mass. July 31, 1995) (D. Ct. Op.).

          In  this  appeal,  Perkins  abandons  several   of  his

original  initiatives  and concentrates  his  fire  on the  lower

court's  rejection  of  the   race  discrimination  claims.    He

maintains  that the  court  allowed brevis  disposition on  those                                                    

claims    only   because   it   overlooked,   misconceived,   and

mischaracterized  the relevant  evidence,  and  then applied  the

                                                  

     2The  appellant   named  both  Kaye  and   the  Hospital  as
defendants.    Because  Kaye's   liability  (if  any)  could  not
conceivably  be greater than the Hospital's, we treat the case as
if the Hospital were the sole defendant and appellee.

                                5

wrong analytic framework.

II.  ANALYSIS          II.  ANALYSIS

          We  begin our discussion of  the merits by noting that,

contrary to the appellant's  position, there is no insurmountable

obstacle  blocking  the  use  of  Fed.  R.  Civ.  P.  56  in  the

circumstances  of this case.  The function of summary judgment is

"to pierce  the  boilerplate  of  the  pleadings  and  assay  the

parties' proof  in order to  determine whether trial  is actually

required."  Wynne v. Tufts Univ. Sch. of Med., 976  F.2d 791, 794                                                       

(1st Cir. 1992), cert. denied, 113 S. Ct. 1845 (1993).  Here, the                                       

record, fairly  read, contains no  sign that  the district  court

overlooked, misconceived, or  mischaracterized the evidence.   To

the  contrary,  as  the  district  court  concluded,  the  record

discloses  no genuine  issue as  to any  material event;  and the

undisputed facts, taken most  favorably to the appellant, confirm

that the  Hospital is entitled  to judgment as  a matter  of law.

See, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315                                                         

(1st  Cir. 1995)  (collecting  cases describing  summary judgment

standard);  see  also Medina-Munoz,  896  F.2d  at 8  (discussing                                            

propriety of summary judgment even when "elusive concepts such as

motive or intent" are at issue).

          We give  credit  where credit  is  due.   The  district

court's opinion  is both  meticulous and  scholarly.   It  treats

every  claim  and item  of evidence,  and closes  virtually every

avenue that Perkins tries  to travel on appeal.   Because that is

                                6

so, we resist the temptation to transpose into our own words what

has already been well expressed, preferring instead to affirm the

judgment essentially on the basis of the opinion below.  We pause

only to add punctuation in a few spots.3

                                A                                          A

          The  appellant's   principal  complaint  is   that  the

district court analyzed his  race discrimination claims under the

McDonnell  Douglas framework.   He  bases  this complaint  on his                            

assumption  that  the  record  contains  evidence  sufficient  to

warrant   deployment  of   the   somewhat   different   framework

constructed  by the Court in Price Waterhouse Co. v. Hopkins, 490                                                                      

U.S.  228,  258  (1989)  (plurality  op.).4    When,  as  now,  a

plaintiff  alleges  disparate treatment,  he  ordinarily has  the

burden of proving that the defendant took  the adverse employment

action  (here, dismissal)  because  of a  protected trait  (here,

race).  The Price  Waterhouse framework, where applicable, shifts                                       

the burden of persuasion to the employer.

                                                  

     3We think it is at least  arguable that the Civil Rights Act
of 1991, Pub. L. 102-166,   102, 105  Stat. 1071 (1991) (codified
at  42 U.S.C.     2000e-2000e-16), applies  in this  case.    But
neither  party  cited this  statute in  the district  court; that
court did not  refer to it in the opinion  below; and the parties
ignore it in their  appellate briefs.  Given this  background, we
do not base our decision on the 1991 Act (but we note that, if we
were to apply  it, the result that we reach  in this appeal would
not be affected).  By like token, given the circumstances of this
case,  we see  no need to  differentiate between  the appellant's
parallel claims of  race-based discrimination  under federal  and
state law, respectively.

     4The  appellant does  not  contend that  the district  court
erred  in its performance of the McDonnell Douglas analysis, but,                                                            
rather, that the analysis should not have been performed at all.

                                7

           For  present   purposes,  we  need  not   explore  the

conditions under which  Price Waterhouse might apply.   The shift                                                  

in  the burden  of  persuasion contemplated  by Price  Waterhouse                                                                           

invariably  depends  upon a  plaintiff's  ability  to produce  or

proffer evidence of the  employer's discriminatory motive for the

adverse job action that  goes beyond the simple prima  facie case

showing  needed to  invoke McDonnell  Douglas (which,  when made,                                                       

requires  the  employer  to   provide     but  not  prove      an

explanation).  See, e.g., Fields v. Clark Univ., 966 F.2d 49, 51-                                                         

52 (1st Cir.  1992), cert. denied, 113 S. Ct. 976 (1993); Jackson                                                                           

v. Harvard Univ., 900 F.2d 464, 467 (1st Cir.), cert. denied, 498                                                                      

U.S, 848 (1990).

          Courts are in some  disarray as to the type and kind of

evidence  that  is  sufficient  to  bring  the  Price  Waterhouse                                                                           

framework  into play.5  Compare  Troupe v. May  Dept. Stores Co.,                                                                          

20 F.3d 734, 738 (7th Cir.  1994) with Ostrowski v. Atlantic Mut.                                                                           

Ins.  Cos., 968  F.2d 171,  182 (2d  Cir. 1992).   In  this case,                    

however, there is no reason to essay fine distinctions or seek to

clarify the Price Waterhouse  standard.  The evidence as  a whole                                      

simply will not support a  reasonable inference that the Hospital

discharged  Perkins because it harbored an  animus against him as

an African-American.  The extensive, point-by-point discussion of

the proof  in Judge  Woodlock's detailed opinion  renders further

                                                  

     5The  Civil Rights Act  of 1991, see supra  note 3, does not                                                         
supply a ready means  of resolving this disagreement.   See Tyler                                                                           
v.  Bethlehem Steel Corp., 958  F.2d 1176, 1182  (2d Cir.), cert.                                                                           
denied, 506 U.S. 826 (1992).                

                                8

analysis on our  part supererogatory.   Because we  find in  this

record nothing remotely resembling  probative evidence of a race-

based animus, the appellant's claim fails.

                                B                                          B

          The  appellant attacks  the  lower court's  reliance on

affidavits supplied by three  female employees that contain lurid

firsthand accounts of his unsavory conduct.  The court considered

these  affidavits in determining that the Hospital had advanced a

nondiscriminatory rationale for its  actions.  See D. Ct.  Op. at                                                            

32.   The appellant  reasons  that, because  the affidavits  were

unavailable  to the Hospital at  the time it  discharged him, the

court could not mull them in analyzing the Hospital's motivation.

This anfractuous reasoning distorts the applicable legal rule.

          It is true that  an employer's proffered  justification

must be based on information that  it knew and relied upon at the

time  it  decided to  take the  adverse  employment action.   See                                                                           

McKennon v. Nashville Banner Pub. Co., 115 S. Ct. 879, 885 (1995)                                               

(explaining  that  because  an  employee's  misconduct   was  not

discovered  until after  her discharge,  the "employer  could not

have been motivated  by knowledge it  did not have and  it [could

not] claim that the employee was fired for  the nondiscriminatory

reason");  Sabree v. United Bhd. of Carpenters, 921 F.2d 396, 403                                                        

(1st Cir. 1990) (similar).   That is  to say, an employer  cannot

avoid liability in a discrimination case by exploiting a weakness

in an employee's credentials or performance that was not known to

the  employer at the time  of the adverse  employment action (and

                                9

that,  therefore,  could  not  have  figured  in  the  decisional

calculus).

          This rule is inapposite in the case at bar.  Though the

challenged affidavits did  not exist when the Hospital handed the

appellant his walking papers, the information that they contained

was known  to and fully absorbed  by the Hospital at  the time it

fired Perkins.  The  affiants had reported their  encounters with

the  appellant  to Avery,  their  stories  were  embodied in  her

report,  and  the  relevant  information was  factored  into  the

Hospital's decisional process.  Consequently, the court below did

not err in considering the affidavits.

                                C                                          C

          The  district court rejected the appellant's attempt to

show intentional discrimination by comparing his treatment at the

Hospital's  hands  with the  treatment  accorded  to a  Caucasian

clinical supervisor who was  also terminated for harassing female

co-workers.  See D. Ct. Op. at 38-42.  Perkins assigns error.  We                          

discern none.

          A  claim of  disparate  treatment based  on comparative

evidence  must  rest  on  proof that  the  proposed  analogue  is

similarly situated  in material respects.   See Morgan  v. Harris                                                                           

Trust &amp; Savs. Bank,  867 F.2d 1023, 1026 (7th Cir.  1989); Lanear                                                                           

v.  Safeway  Grocery,  843  F.2d   298,  301  (8th  Cir.   1988).                              

Accordingly,  the proponent  of the  evidence must show  that the

individuals  with whom he seeks  to be compared  have "engaged in

the  same  conduct  without  such  differentiating  or mitigating

                                10

circumstances  that  would  distinguish   their  conduct  or  the

employer's  treatment of them for it."  Mitchell v. Toledo Hosp.,                                                                          

964  F.2d 577,  582  (6th Cir.  1992).   The  test  is whether  a

"prudent person,  looking  objectively at  the  incidents,  would

think  them roughly  equivalent  and the  protagonists  similarly

situated."  Dartmouth Review  v. Dartmouth College, 889 F.2d  13,                                                            

19 (1st Cir. 1989).  While an exact correlation is not necessary,

the  proponent   must  demonstrate  that  the   cases  are  "fair

congeners."  Id. at 19.                          

          In  this instance, Judge Woodlock's opinion illustrates

beyond hope  of contradiction,  citing book  and verse,  that the

requisite similarities are lacking.  See D. Ct. Op. at 38-42.  We                                                  

see no advantage  in repastinating soil already well ploughed and

instead  adopt Judge  Woodlock's characterization.    However, we

think  it wise to emphasize two aspects.  First, the Hospital had

good reason to believe that the clinical supervisor's misconduct,

while  reprehensible,  was   markedly  less   serious  than   the

appellant's  misconduct.   Second,  the supervisor    unlike  the

appellant     did not  have  a history  of  repeated disciplinary

actions over a ten-year period.

III.  CONCLUSION          III.  CONCLUSION

          We  return  to   the  point  of  our  beginning.    The

appellant's several efforts to mount an offensive (including some

initiatives  that  we  have  not discussed  here)  are  uniformly

unavailing.   The record  in this case simply  will not support a

reasonable inference  that the Hospital  discharged the appellant

                                11

because   it  harbored   an  animus   against  African-Americans.

Consequently, we need go no further.

Affirmed.          Affirmed.                  

                                12
