

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 97-1683

                          DALE BRAMBLE,
                      Plaintiff - Appellant,

                                v.

                  AMERICAN POSTAL WORKERS UNION,
                    AFL-CIO PROVIDENCE LOCAL,
                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ronald R. Lagueux, U.S. District Judge]                                                                

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Godbold,* Senior Circuit Judge,                                                         

                 and Barbadoro,** District Judge.                                                          

                                           

     Kevin J. McAllister, with  whom Brennan, Recupero, Cascione,                                                                           
Scungio &amp; McAllister was on brief for appellant.                              
     Paul F. Kelly,  with whom Anne R. Sills and Segal, Roitman &amp;                                                                           
Coleman were on brief for appellee.                 

                                           

                         January 27, 1998
                                           

                                                  

*  Of the Eleventh Circuit, sitting by designation.

**  Of the District of New Hampshire, sitting by designation.

          TORRUELLA,  Chief  Judge.   Dale  F.  Bramble  sued his                    TORRUELLA,  Chief  Judge.                                            

employer, the American Postal Workers, AFL-CIO, Providence, Rhode

Island Area Local,  (the "Union") under the Age Discrimination in

Employment  Act of  1967 ("ADEA"),  29 U.S.C.     621-34,  in the

Federal  District Court  of Rhode  Island.   He alleges  that the

Union discriminated against  him on the basis of  his age when it

adopted  a new  salary structure  for his  office of  Local Union

President, effectively eliminating his  salary.  Bramble  brought

this suit under both a disparate treatment and a disparate impact

theory of  recovery.   The district court  dismissed the  case on

summary judgment  and  this  appeal  followed.   See  Bramble  v.                                                                       

American  Postal Workers Union, AFL-CIO,  963 F. Supp. 90 (D.R.I.                                                 

1997).  We affirm.

                            BACKGROUND                                      BACKGROUND                                                

          The   following  facts   are  essentially   undisputed.

Bramble,  a  United  States  Postal  Service  ("Postal  Service")

worker, was first  elected to the Union presidency  in 1974.  For

eleven years thereafter, he held the post while working full-time

at the  postal service.   In 1985,  the Union  voted to  make the

presidency a full-time position.  The Union paid Bramble a $3,000

stipend plus the equivalent  of his old salary.  In  spite of the

fact  that he  was  no longer  drawing a  salary from  the Postal

Service,  Bramble maintained  his  status  as  an  active  Postal

Service employee as he continued to hold the presidency.

          In November 1991,  Bramble was re-elected as  the Union

president in a  close three-way race in which he garnered only 35

                               -2-

percent of the vote.  The year following his re-election, Bramble

accepted an early retirement package from the Postal Service.  At

that  point, Bramble began drawing  a federal pension in addition

to his full salary as Union president.

          In  January  1993,  with  the  majority  of  the  Union

opposing  Bramble's administration,  an  amendment to  the  Union

constitution  was adopted  by a  vote  of 34-23.   The  amendment

revised the salary structure of the Union presidency from a fixed

rate to a  rate that  was tied  to the president's  salary as  an

active Postal  Service employee.   According to this  "active pay

status" rate,  any Union president  receives a $3,000  stipend in

addition to the salary he or she would receive in accordance with

his or her active status with the Postal Service.1

          Pursuant to  the new  policy,  more experienced  postal

workers  serving as president  receive higher salaries  than less

experienced workers  holding the same position,  while presidents

who are retired or on disability receive a mere $3,000 in  annual

compensation.   Because  Bramble was retired,  the salary  he was

receiving in addition to the stipend was eliminated.   It is also

undisputed that  Bramble was disliked  by many in the  union, and

that  the amendment  was intended  by many,  if not  all, of  its

supporters as a means to force Bramble's resignation.  On July 1,

1993, Bramble did just that.
                                                  

1  The original amendment  to the Union constitution was somewhat
confusing,  but a subsequent amendment was adopted to clarify the
"active pay status" policy.  The district court opinion refers to
this  "active  pay status"  policy  as  the  "no loss,  no  gain"
amendment.  See Bramble, 963 F. Supp. at 93.                                 

                               -3-

          Two  weeks  later,  Bramble brought  this  suit  in the

Federal District Court of Rhode Island alleging that  the Union's

actions  amounted  to  a constructive  discharge  based  upon age

discrimination  in  violation  of  the  ADEA,  29 U.S.C.     626.

Bramble sued the Union in both its  capacity as an "employer" and

as a "labor  union" under the ADEA.   Bramble's amended complaint

employed both disparate  treatment and disparate  impact theories

of recovery.   In his disparate treatment  claim, Bramble alleges

that the  defendant used his eligibility for  retirement, a proxy

for  his  age, as  a  means to  force him  from  office.   In his

disparate  impact  claim,  Bramble alleges  that  the  new salary

structure is  a  policy which  disproportionately affects  people

protected by the ADEA.  The district court dismissed this case on

summary judgment, concluding that there was insufficient evidence

to create a genuine dispute as to whether the Union was motivated

by age-based  animus and  that business  necessity justified  the

Union's new policy.

                            DISCUSSION                                      DISCUSSION                                                

I.  Jurisdiction          I.  Jurisdiction

          As a  preliminary matter,  the Union  claims that  this

court does not have jurisdiction over this case because the Union

is  not covered  as  an "employer"  under the  ADEA, 29  U.S.C.  

623(a).  An  employer is only subject  to the ADEA if  it employs

"twenty or more employees for each  working day in each of twenty

or more  calendar  weeks in  the  current or  preceding  calendar

year."  29  U.S.C.   630(b).  The  Union claims that  Bramble was

                               -4-

its only  true employee and that it is  thus outside the scope of

the ADEA.   This argument is  bolstered by an examination  of the

Union's W-3  forms, which  reveal that,  while over thirty  union

"employees" received some  form of compensation during  the years

at issue, almost all of  these "employees" received less than one

thousand  dollars per  year.    While this  fact  casts doubt  on

whether twenty or  more employees were actually engaged  in Union

work for each working day  in twenty or more calendar weeks,  the

record at this stage  of the case does not  contain any schedules

or time  sheets to indicate when  employees were at the  Union or

engaged in Union  duties.  Construing this limited  record in the

light most favorable to Bramble, we must conclude that there is a

genuine issue of material fact regarding the qualification of the

Union as an "employer" under sections 623(a) and 630.  Therefore,

it is premature for this court to declare that the district court

acted  without   proper  subject  matter  jurisdiction   when  it

considered the merits of this case for summary judgment purposes.

          Furthermore,  "'[i]t is a  familiar tenet that  when an

appeal presents a  jurisdictional quandry, yet the  merits of the

underlying issue,  if reached, will  in any event be  resolved in

favor of the party challenging the court's jurisdiction, then the

court may forsake the jurisdictional riddle and simply dispose of

the appeal on  the merits.'"  See  Rojas v. Fitch, 127  F.3d 184,                                                           

187 (1st Cir. 1997) (quoting Hachikian  v. FDIC, 96 F.3d 502, 506                                                         

n.4 (1st Cir. 1996)).  In light of the fact that summary judgment

                               -5-

for the Union is affirmed  herein, we are not inclined  to remand

on jurisdictional grounds.

          The Union  also  argues  that it  is  not  required  to

conform  to  ADEA  requirements  because  it  is   not  a  "labor

organization" covered  by section   623(c).  A labor organization

under the ADEA represents employees of  a covered "employer," and

any  corporation  wholly  owned  by  the  federal  government  is

specifically excluded from the  ADEA's definition of  "employer."

See 29 U.S.C.   630(b).  However,  if the Union is subject to the             

requirements of the ADEA by virtue of its status as an "employer"                                                   

under section  623(a) and is  being sued in that  capacity, it is

irrelevant  whether it also  qualifies as a  "labor organization"

under  section 623(c).   Thus, the Union's  second jurisdictional

argument has been mooted by  our finding that summary judgment on

the issue of subject matter jurisdiction would be premature.

II.  Disparate Treatment          II.  Disparate Treatment

          Review  of a district court's award of summary judgment

is de novo.   See United Nat'l  Ins. Co. v. Penuche's,  Inc., 128                                                                      

F.3d 28,  30 (1st Cir. 1997).   We view the entire  record in the

light most  hospitable to  the party  opposing summary  judgment,

indulging  all reasonable inferences in  that party's favor.  See                                                                           

Ahern v. O'Donnell, 109 F.3d 809, 811 (1st Cir. 1997).                            

          The ADEA was promulgated  by Congress out of a  concern

that   older   workers   were  being   deprived   of   employment

opportunities  due  to  inaccurate  stereotypes.    See  EEOC  v.                                                                       

Wyoming,  460 U.S.  226, 231  (1983).   To establish  a disparate                 

                               -6-

treatment claim under the ADEA, an employee must show that he was

treated adversely because  of his age.  Mesnick  v. General Elec.                                                                           

Co., 950 F.2d  816, 823 (1st  Cir. 1991), cert. denied,  504 U.S.                                                                

985 (1992).  To survive summary judgment, the employee must first

either present  direct evidence of  discrimination or make  out a

prima facie case of discrimination, invoking the  burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-                                                       

05 (1973).  See Mesnick,  950 F.2d at 823.   In this case,  there                                 

was  no direct evidence  of discrimination.2   Therefore, Bramble

was required  to make out  a prima facie case  demonstrating that

(1) he was over the age of forty; (2) his work was sufficient  to

meet his  employer's  legitimate expectations;  (3) his  employer

took adverse  action against him;  and (4) the employer  sought a

replacement with  roughly  equivalent  job  qualifications,  thus

revealing a continued need for the same services and skills.  See                                                                           

id. (citing Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110 (1st                                                 

Cir. 1989)).

          Bramble's   claim   was   different   from   most   age

discrimination claims insofar  as he held an elected  office.  He                                                              

was  employed collectively by the union  members.  This obviously

complicated  Bramble's task  of showing discriminatory  animus on

the  part  of  his  employer.    The decision  to  constructively

                                                  

2  Bramble argues that some direct evidence of discrimination did
exist in  this case.   He  points to  a comment  made by a  union
member on  the floor  prior  to the  vote on  the amended  salary
structure,  referring to  Bramble  as  "the  retired  President."
However,  this  comment  plainly  provides  no  evidence  of  age
discrimination.

                               -7-

discharge Bramble was made by a majority of the 57 members of the

union electorate who  voted on the amendment, and,  as courts are

acutely aware, determining  the "motive" behind a  policy adopted

via popular vote is a monumental challenge.  See e.g., O'Brien v.                                                                        

United States,  391 U.S.  367, 383-84  (1968) ("[i]nquiries  into                       

congressional motives or purposes are a  hazardous matter").  For

example,  the requirement that  Bramble's work be  "sufficient to

meet his employer's legitimate expectations" effectively became a

requirement that Bramble  be a successful  politician.  Here  was

where  Bramble's improbable effort to prove age discrimination on

the part of an entire union electorate ultimately failed.

          Dale Bramble  eventually  lost favor  with  his  Postal

Worker constituents.  Bramble's counsel  may have stated it  most

succinctly when he stated that "there were a lot of people in the

Union who did not  like him."  After nineteen years  as the Union

President,  Bramble's  counsel  explained,  he  had  made  enough

enemies that "[the Union]  wanted to get  rid of him for  several

reasons."   For over a  year, Bramble had continued  as President

after failing to win a majority in the presidential election, and

there is  no evidence  that his popularity  was increasing.   The

transcript of  the  Union  meeting at  which  the  amendment  was

adopted reveals that Bramble was perceived by  various members of

the  Union  as  being  insulated,  greedy,  uncommunicative,  and

generally untrustworthy.   It  is not  for this  or any  court to

determine the character of the plaintiff in this case, but  it is

relevant that the Union members were critical of their President.

                               -8-

None of the members who spoke out against Bramble on that evening

criticized him as being too old for his job.  In the face of this

evidence  that the majority of  the union members were displeased

with Bramble's presidency, and due to the lack of any evidence to

the  contrary, we reject Bramble's claims of disparate treatment.

In  essence, he failed  to establish a  key element of  his prima

facie   case  of  disparate  treatment  --  that  "his  work  was

sufficient to meet his employer's legitimate expectations."3

          Bramble argues that  even if the  Union wanted to  oust

him as president for reasons other than age, it violated the ADEA

when it implemented its new "active pay status" salary  plan.  He

alleges that the plan "constitutes a form of overt discriminatory

animus" because retirement status is  tied to age.   Essentially,

Bramble argues  that because  older people  are  the only  people

eligible for  retirement, and  because the  new salary  structure

would have the primary effect of discouraging retired people from

seeking the Union presidency, the  new salary structure is per se

age discrimination.   However,  Bramble's argument  fundamentally

misinterprets Hazen  Paper v. Biggens,  507 U.S. 604  (1993), the                                               

most recent Supreme Court case on this issue.

          In  Hazen  Paper,  the  Court  considered  "whether  an                                    

employer violates  the ADEA by  acting on the basis  of a factor,

such  as  an  employee's pension  status  or  seniority,  that is

empirically correlated  with age."  Id.  at 608.  In  holding for                                                 
                                                  

3   The Union has  since amended its  constitution to provide for
run-off elections so that no President will ever again be elected
without winning a majority vote.

                               -9-

the employer  in that case, the Court clarified 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                                                                        

609.  The reasoning behind the Court's decision was that "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.'"  Id. at 611.                            

          Despite  Bramble's  attempts   to  distinguish  pension

status from "active pay status," the analysis under the ADEA must

be the same.  While retired postal workers likely outnumber those

postal workers on  disability or unpaid  leave, the fact  remains

that the  group  negatively affected  by  the active  pay  status

policy  is "analytically distinct"  from the group  of retirement

aged  postal employees.   In  other  words, there  is a  positive

correlation between active pay status and age,  but one is not an

exact proxy for the other.

          Hazen Paper explains that where  an employment decision                               

is premised  upon  an age-correlated  but  analytically  distinct

factor, a  violation of the  ADEA has occurred  only if there  is

additional evidence that  the employer was  motivated by an  age-

discriminatory animus.  Id. at 612-13.  As discussed above, there                                     

is  no such  evidence in  this case.   The  plaintiff's disparate

treatment claim must fail.

III.  Disparate Impact          III.  Disparate Impact

                               -10-

          Bramble  also   claims  that  the  Union's  new  salary

structure has a "disparate impact" on older persons  in violation

of the ADEA.   A "disparate  impact" claim involves  "'employment

practices that are facially neutral in the treatment of different

groups  but  that in  fact fall  more harshly  on one  group than

another and cannot be justified by a business necessity.'"  Hazen                                                                           

Paper, 507 U.S.  at 609, quoting Teamsters v.  United States, 431                                                                      

U.S.  324, 335-36,  n.15 (1977).    Statistics comparing  persons

holding at-issue jobs and composition of qualified job applicants

are commonly a basic component of  a disparate impact claim.  See                                                                           

Wards  Cove Packing  Co., Inc.  v. Atonio,  490 U.S.  642, 650-51                                                   

(1989).  As the Supreme  Court has repeatedly reminded, there has

been  no  definitive  interpretation  of  the  applicability   of

disparate impact analysis to the ADEA.  See Hazen Paper, 507 U.S.                                                                 

at 610;  Markham v. Geller,  451 U.S. 945 (1981)  (Rehnquist, J.,                                    

dissenting from denial  of certiorari).  Furthermore,  this Court

has never  addressed the question.   However, this case  does not

present  this  Court  with  a  proper occasion  to  take  up  the

question, because, even  assuming arguendo that these  claims are                                                    

viable under  the ADEA, it  is plainly apparent that  Bramble has

insufficient evidence to support his claim.

          In this case,  the effect of the  questioned employment

practice has  not fallen on  a group at  all, but on  one person.

Only the president's salary was  modified by the amendment.  Thus

it is undisputed that the only person affected by the  active pay

status policy  was Bramble.   Where an employer targets  a single

                               -11-

employee and  implements a  policy which  has, to  date, affected

only that one employee, there is  simply no basis for a disparate

impact claim.

          Instead, it appears  that Bramble's  claim is  actually

prospective, i.e.,  he argues that  it is apparent "on  its face"

that  the  active  pay  status  policy will  have  a  foreseeable                                                           

disparate impact.   However, proper disparate impact  claims only

involve facially neutral policies.   See Hazen Paper, 507 U.S. at                                                              

609.   Therefore, Bramble's disparate impact claim actually folds

into his failed disparate treatment claim.   See supra.  Thus, we                                                                

need  not  address  whether  the  Union  had  shown  a  "business

necessity"  for its  new policy,  the issue  which  persuaded the

district court to grant summary judgment on this disparate impact

claim.  See Bramble, 963 F. Supp. at 98-102.                              

IV.  Reasonable Notice          IV.  Reasonable Notice

          Bramble  argues  that  the district  court's  award  of

summary judgment failed to meet  the requirements of Fed. R. Civ.

P.  56(c) entitling  the party opposing  summary judgment  to ten

days notice and an opportunity to respond.  See Stella v. Town of                                                                           

Tewksbury, 4  F.3d 53, 56  (1st Cir. 1993).   He argues  that the                   

district court awarded  summary judgment on two grounds that were

not discussed  in  the Union's  Motion  for Summary  Judgment  --

namely  that there  was no  evidence of discriminatory  animus as

required  by Hazen  Paper and  that the  Union had  established a                                   

business  necessity  for  its  new  salary  structure.    Bramble

contends  that  the   ruling  thus  conflicted  with   the  well-

                               -12-

established principle that a trial court must give notice to both

parties of any issues it will be considering for summary judgment

that  exist outside of the  original Motion for Summary Judgment.

See Stella, 4 F.3d at 56.                    

          "'The purpose of  Rule 56 (c)  is to  allow a party  to

have a  meaningful opportunity  to challenge  a summary  judgment

motion.'"   Delgado-Biaggi v.  Air Transport Local  501, 112 F.3d                                                                 

565, 567 (1st Cir. 1997)  (quoting C a. Petrolera Caribe, Inc. v.                                                                        

Arco  Caribbean,  Inc.,  754  F.2d  404,  409  (1st  Cir. 1985)).                                

Indeed, where  a party  did not have  an adequate  opportunity to

address the rationale behind the summary judgment in the district

court, we  will not address the substance of the claims on appeal

because "'leapfrogging to the merits would display  much the same

disregard for  established  protocol  that  marred  the  district

court's  performance.'"  Delgado-Biaggi, 112 F.3d at 568 (quoting                                                 

Stella, 4 F.3d  at 55).  However,  while a party must  receive an                

adequate  opportunity to  challenge  the  general  grounds  of  a

prospective award of  summary judgment, a party need  not have an

opportunity to  address every step  of the reasoning  employed or

every  case relied  upon by  the district court.   In  this case,

Bramble filed two  briefs over the course of two  months in which

he attempted  to distinguish Hazen  Paper, the case on  which the                                                   

district  court  and  this court  ultimately  rely  in dismissing

Bramble's  disparate treatment claim.  Since his disparate impact

claim  merely extends from this failed disparate treatment claim,

Bramble's  inability to successfully  distinguish Hazen Paper was                                                                       

                               -13-

fatal to  both claims.  Thus we reject Bramble's argument that he

was denied reasonable notice.

          For  the reasons  stated herein,  the district  court's

award of summary judgment is affirmed.                                               

                               -14-
