
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1931                                     UDO U. UDO,                                Plaintiff, Appellant,                                          v.                          HENRY TOMES, COMMISSIONER FOR THE                             DEPARTMENT OF MENTAL HEALTH,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John A. Birknes, Jr., for appellant.            ____________________            Deborah S. Steenland, Assistant Attorney General, with whom  Scott            ____________________                                         _____        Harshbarger, Attorney General, was on brief for appellee.        ___________                                _____________________                                    April 28, 1995                                _____________________                      STAHL,  Circuit Judge.  Plaintiff-appellant Dr. Udo                      STAHL,  Circuit Judge.                              _____________            U.  Udo challenges  his  layoff from  Taunton State  Hospital            ("Taunton"),   which  is   operated   by  the   Massachusetts            Department  of Mental  Health ("DMH").   Udo claims  that DMH            laid him  off because of  age discrimination in  violation of            the Age Discrimination in  Employment Act ("ADEA"), 29 U.S.C.               626(b), and race discrimination  in violation of Title VII            of the  Civil Rights Act of  1964, 42 U.S.C.    2000(e).  Udo            also   claims  that   defendant-appellee  Henry   Tomes,  the            Commissioner of DMH, in  his individual capacity deprived him            of his  civil rights in violation  of 42 U.S.C.    1983.  The            district court granted summary judgment to defendant, and Udo            appeals.  We affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      In   October   1990,   the    Massachusetts   state            legislature directed  all state agencies,  including DMH,  to            implement cost-saving measures to address underfunding in the            Fiscal  Year  1991  budget.   DMH  responded  to this  fiscal            emergency  with  a  plan   that  included  significant  staff            reductions.   In connection with its  state-wide reduction in            force,  DMH  eliminated the  two  Physician  II positions  at            Taunton, one of which Udo held.  At that time, DMH employed a            total of nineteen Physician IIs in its various hospitals.  Of            those, Udo had the most seniority, having been employed since                                         -2-                                          2            1975.   Udo was also  the only Black and,  at sixty-five, the            oldest of the nineteen Physician IIs employed by DMH.                      Tomes  notified Udo  by  letter dated  October  12,            1990, that his position  at Taunton had been eliminated.   In            the letter, in accordance  with procedures under which senior            employees  whose positions  are  eliminated  can "bump"  less            senior employees, Tomes offered  Udo certain bumping options.            Tomes  also  notified  Udo  that  he  could request  an  exit            interview  with the  DMH Equal  Employment/Affirmative Action            Office to determine if any affirmative action rights had been            abridged.    Although Udo  requested  such  an interview,  no            interview was ever conducted.   Udo elected to bump  into the            Physician II position at Metropolitan State Hospital, and, on            October  26, 1990, Tomes sent Udo a letter indicating that he            had been awarded that position.                      After awarding  Udo  the Physician  II position  at            Metropolitan  State Hospital,  DMH  became aware  that, as  a            result  of  a   disciplinary  action  for   malpractice,  the            Massachusetts  Board of  Registration  in  Medicine  had,  on            October  17,  1990,  restricted  Udo's  license  to  practice            medicine  to  Taunton.    Consequently,  in  a  letter  dated            November 6, 1990, Tomes informed Udo, "Since your election to            practice medicine at Metropolitan State Hospital  is contrary            to  this   disciplinary  action,  you   are  hereby  laid-off            effective November 17, 1990."                                         -3-                                          3                      Udo,   a   member  of   the   Massachusetts  Nurses            Association  ("MNA"),  challenged  the  elimination   of  his            position and his layoff through the grievance process set out            in  the union's collective bargaining agreement, arguing that            those  actions violated  the collective  bargaining agreement            and  that they were discriminatory  in terms of  both age and            race.1    The arbitrator  found  that  Udo's layoff  violated            seniority  provisions of the  collective bargaining agreement            and held that the  "decision to lay off [Udo]  was arbitrary,            capricious  and   unreasonable  and  in   violation  of   the            contract."2     The  arbitrator   did   not  consider   Udo's            discrimination claims.                      In  April 1992,  before  his  arbitration case  was            concluded,  Udo became  aware that  Taunton had  advertised a            Physician  II position with a posting date of April 16, 1992,            and a closing date  of April 24, 1992.   On May 8, 1992,  the            MNA  notified Taunton that Udo was eligible to be recalled to            that position through the collective bargaining agreement, as                                            ____________________            1.  The  MNA also  pursued an  action with  the Massachusetts            Labor  Relations Commission against DMH on  behalf of all MNA            members who  had  been laid  off  or bumped  (including  Udo)            during   the  state-wide   reduction   in   force,  and   the            Massachusetts Labor  Relations Commission found  that DMH had            violated the collective bargaining agreement.            2.  The  arbitrator  rendered his  decision  on  December 20,            1992, giving  the parties ninety  days to reach  a settlement            regarding relief.  Because the parties  were unable to agree,            on  June  11,  1993,  the  arbitrator  ordered  that  Udo  be            reinstated to  his position  at Taunton and  that he  receive            partial back pay.                                         -4-                                          4            the  agreement provides  for recall  following layoff  at any            time within two years.   DMH responded that it  had rescinded            that  announcement  and  that  the  position  was  no  longer            available.   Udo later found  out that the  position had been            filled by an  "03" physician.  An  03 physician has  the same            duties  as a  Physician  II, but  does  not come  within  the            collective bargaining agreement.                      In addition to  challenging the elimination of  his            position and  his layoff  through his  union,  Udo filed  the            instant  action.    The  district  court  granted defendant's            motion for summary judgment, and Udo appeals.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Standard of Review            ______________________                      As always,  we review  a district court's  grant of            summary judgment de novo and, like the district court, review                             __ ____            the facts in the light most favorable to the nonmoving party.            See, e.g., Lareau v. Page, 39 F.3d 384, 387 (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).                                         -5-                                          5            B.  Age and Race Discrimination            _______________________________                      1.  The Legal Framework                      _______________________                      In disparate-treatment cases,  plaintiffs bear  the            ultimate burden  of proving  that  they were  the victims  of            intentional discrimination.  St.  Mary's Honor Ctr. v. Hicks,                                         ______________________    _____            113  S. Ct. 2742, 2747-48 (1993).  When plaintiffs are unable            to  offer direct  proof  of  their employers'  discriminatory            animus  --  as is  usually the  case and  was  so here  -- we            allocate the  burden of  producing evidence according  to the            now-familiar  three-step framework  set  forth  in  McDonnell                                                                _________            Douglas  Corp. v. Green, 411  U.S. 792, 802-05  (1973).  See,            ______________    _____                                  ___            e.g.,  Hicks,  113  S.  Ct. at  2746  (race  discrimination);            ____   _____            LeBlanc v.  Great Am.  Ins. Co.,  6 F.3d 836,  842 (1st  Cir.            _______     ___________________            1993)  (age discrimination),  cert. denied,  114 S.  Ct. 1398                                          _____ ______            (1994).                      Under the McDonnell  Douglas framework,  plaintiffs                                __________________            bear the initial burden of establishing a prima facie case of            discrimination.   McDonnell Douglas,  411 U.S.  at  802.   In                              _________________            reduction-in-force cases, the plaintiff establishes the prima            facie case by demonstrating that  he or she (1) was a  member            of a protected class, (2)  met the employer's legitimate job-            performance expectations, (3) was laid off, and (4) that  the            employer either did not treat  members of the protected class            neutrally or retained persons  not within the protected class            in the same position.  See LeBlanc, 6 F.3d at 842.                                   ___ _______                                         -6-                                          6                      Once the plaintiff establishes a  prima facie case,            a   presumption   arises   that   the   employer   unlawfully            discriminated against  the plaintiff.   Hicks, 113 S.  Ct. at                                                    _____            2747;  LeBlanc, 6 F.3d at 842.  This presumption "places upon                   _______            the defendant the burden of producing an explanation to rebut            the prima  facie  case  --  i.e., the  burden  of  `producing            evidence' that the adverse employment actions were taken `for            a legitimate, nondiscriminatory reason.'"   Hicks, 113 S. Ct.                                                        _____            at 2747 (quoting Texas Dept. of Community Affairs v. Burdine,                             ________________________________    _______            450  U.S. 248, 254 (1981)).   While the  burden of production            shifts to the  defendant during this second step,  the burden            of persuasion remains on the plaintiff.  Hicks, 113 S. Ct. at                                                     _____            2747.                      If  the  defendant "articulate[s]  some legitimate,            nondiscriminatory  reason  for  the   plaintiff's  [layoff],"            McDonnell  Douglas, 411 U.S. at  802, then the presumption of            __________________            discrimination established  by  the plaintiff's  prima  facie            showing  "drops out of  the picture."   Hicks, 113 S.  Ct. at                                                    _____            2749.    The burden  of production  then  shifts back  to the            plaintiff, who  is  given an  opportunity  to show  that  the            defendant's stated reason for laying  off the plaintiff was a            pretext for discrimination.   See McDonnell Douglas, 411 U.S.                                          ___ _________________            at   804.    "The   defendant's  `production'  (whatever  its            persuasive  effect)  having  been  made, the  trier  of  fact            proceeds to decide the  ultimate question:  whether plaintiff                                         -7-                                          7            has  proven `that  the defendant  intentionally discriminated            against [him].'"  Hicks, 113 S. Ct. at 2749 (quoting Burdine,                              _____                              _______            450  U.S. at 253) (alterations in Hicks); see also LeBlanc, 6                                              _____   ___ ____ _______            F.3d  at 843  (applying Hicks  to age  discrimination cases).                                    _____            Thus,   once   the   employer   articulates   a   legitimate,            nondiscriminatory  reason for  laying off  the plaintiff,  to            avoid   summary  judgment,   the  plaintiff   must  introduce            sufficient  evidence to support  two findings:   (1) that the            employer's articulated reason for laying off the plaintiff is            a pretext, and  (2) that the  true reason is  discriminatory.            Smith v. Stratus  Computer, Inc.,  40 F.3d 11,  16 (1st  Cir.            _____    _______________________            1994), petition for cert. filed,  63 U.S.L.W. 3644 (U.S. Feb.                   ________ ___ _____ _____            21, 1995) (No. 94-1416).  While the plaintiff may rely on the            same evidence  to prove both pretext  and discrimination, the            evidence must  be sufficient  for a reasonable  factfinder to            infer   that  the  employer's   decision  was   motivated  by            discriminatory animus.  Id.                                    ___                      2.  Application                      _______________                      We shall  assume, as  the district court  did, that            Udo  established  a  prima  facie case  under  the  McDonnell                                                                _________            Douglas formulation for both age and race discrimination.  As            _______            its  reason for laying Udo off, DMH points to the restriction            on Udo's medical license  that made it impossible for  him to                                         -8-                                          8            bump  to  another hospital.3    This  reason satisfies  DMH's            burden of production  and shifts  the burden back  to Udo  to            prove  that   DMH's  proffered   reason  is  a   pretext  for            discrimination.                      Even assuming arguendo that DMH's immediate seizure                                    ________            on  the restriction on Udo's  license was a  pretext for some            other  reason,4  in order  to  survive a  motion  for summary            judgment,  Udo's evidence must also allow a jury to find that            DMH's  articulated reason was  a pretext  for discrimination.                                                      ___ ______________            See Smith, 40 F.3d at 16 ("Title VII does not grant relief to            ___ _____            a plaintiff  who has  been discharged unfairly,  even by  the                                            ____________________            3.  The  exact language  of the  restriction placed  on Udo's            license is as follows:                      The  Respondent  [Udo] will  restrict his                      current practice of  medicine to  Taunton                      State Hospital and its affiliate programs                      where he currently practices, or to those                                                    ___________                      hospitals  and  their affiliates  who are                      _________________________________________                      approved by  the  Board in  advance,  and                      ___________________________________                      such  practice will  be  monitored  by  a                      Board-approved  monitoring physician  who                      will report  to the  Board, on  a regular                      basis,  the   Respondent's  activity  and                      quality of patient care rendered by him.            (emphasis added).                      Although  the Board  imposed  this  restriction  on            Udo's medical  license on October  17, 1990, it  stemmed from            malpractice occurring before 1980 at St. Luke's Hospital.  At            Udo's request, on  November 28, 1990,  the Board changed  the            restriction to allow  Udo to practice at  other hospitals and            clinics under the jurisdiction of DMH.            4.  We note  that the  arbitrator found  Udo's  layoff to  be            "arbitrary, capricious  or unreasonable  and in violation  of            the  contract."  While  we, of course,  are not  bound by the            arbitrator's findings,  Alexander v. Gardner-Denver  Co., 415                                    _________    ___________________            U.S.  36, 59-60  (1974), the  arbitrator's decision  could be            considered some evidence of pretext.                                         -9-                                          9            most   irrational   of  managers,   unless   the   facts  and            circumstances indicate  that  discriminatory animus  was  the            reason for the decision.").                      To  establish  that  he  was  the  victim  of  race            discrimination, Udo presents an  MNA document that shows that            the nineteen Physician IIs employed by DMH at the time he was            laid  off  comprised  eleven   Caucasians,  six  Asians,  one            Hispanic, and one Black  (Udo).  Based on this  document, Udo            maintains that  DMH retained all eleven  Caucasians, but that            it  laid off the only Black (Udo), the only Hispanic, and two            of the six  Asians.  DMH responds with the  affidavit of Jeff            McCue,  DMH's  Assistant  Commissioner for  Human  Resources.            According  to McCue,  DMH  eliminated only  two Physician  II            positions,  not four,  namely the  two positions  at Taunton.            McCue explains  that because neither  Udo nor Dr.  Pandya, an            Asian  who  held the  other  Taunton  Physician II  position,            exercised  their bumping  options, neither  of the  two least            senior  Physician IIs, who happened  to be a  Hispanic and an            Asian, were laid off.                      Udo also  argues that DMH's failure  to conduct his            requested  exit interview  to  determine whether  affirmative            action rights pertaining to him were being abridged evidences            DMH's  discriminatory  animus.    DMH  states  that  no  exit            interview  was   conducted  because  Udo   asked  Richard  C.            Haddocks, Jr.,  the Director  of Human Resources  at Taunton,                                         -10-                                          10            for  an exit interview on October 18, 1990, but Haddocks took            a medical  leave of  absence beginning on  October 21,  1990,            prior to taking action  on Udo's request, and did  not return            to work until after Udo had been laid off.5                      As evidence of age  discrimination, Udo notes  that            in  June 1990,  Haddocks sent  him a  letter stating  that he            would  have to retire since  he turned sixty-five that month.            After  Udo  informed  him  that  he  was  mistaken  and  that            retirement  was  not  required  until  age seventy,  Haddocks            checked  further into the matter and informed Udo that he was            correct.  In his affidavit submitted with defendant's summary            judgment motion, Haddocks stated that he wrote the retirement            letter because he had received incorrect information from the                                            ____________________            5.  Udo also notes  that "the affirmative action plan  of DMH            specifically  provides that any layoff  action by DMH must be            reviewed by the EEO Administrator  before it becomes final to            determine  if  such  action  represents a  breakdown  in  the            affirmative action  program and therefore  calls for remedial            action."  DMH responds  that "[t]he EEO Administrator did  in            fact  review  the plan  for  staff  reductions prior  to  its            implementation."  Thus, DMH  claims that while Udo  failed to            receive his  exit interview, the EEO  Administrator had still            reviewed his layoff.                        Udo points out,  however, that the most DMH did was            initially  review  the  reduction  in  force  "prior  to  its            implementation," but that this  included only the elimination            of Udo's Taunton  position and  not his actual  layoff.   Udo            seems  to cite this as evidence that "the layoff should never            [have]  become final," rather than as evidence of age or race            discrimination.   While  this evidence  may constitute  proof            that DMH violated the  collective bargaining agreement, we do            not think that it tends to prove that Udo was laid off as the            result of age or race discrimination.                                         -11-                                          11            Massachusetts State Board of  Retirement that Udo was subject            to mandatory retirement at age sixty-five.                      As evidence  of both age  and race  discrimination,            Udo  also points  to DMH's  behavior after  he applied  for a            Physician II position  at Taunton that was  advertised by DMH            in April 1992.  DMH allegedly responded to  Udo's application            by  stating  that  the  announcement and  position  had  been            rescinded, but then later hired an "03" contract physician to            fill the position.                      We  do  not  think  that, given  this  evidence,  a            rational  jury would be  able to find  that DMH discriminated            against  Udo because  of  his age  or  his  race.   That  DMH            eliminated two positions, which were occupied by a Black  and            an  Asian, does not show that DMH was improperly motivated by            age or race when it subsequently laid Udo off.   See Lawrence                                                             ___ ________            v. Northrop Corp., 980 F.2d 66, 74 n.13 (1st Cir. 1992) ("Nor               ______________            can the fact that the three oldest associate program managers            in  Organization  4000 were  targeted  for  layoff itself  be            viewed   as   giving   rise    to   an   inference   of   age            discrimination.").  Similarly, we have  trouble understanding            how  DMH's failure  to  conduct an  exit  interview prior  to            laying Udo  off shows that  the decision  to lay him  off was            discriminatory  in  motive.    Nor   do  we  think  that  the            retirement  letter Udo received shows age  animus on the part            of  DMH;   rather,  it   seems  merely   to  show  that   the                                         -12-                                          12            Massachusetts State Board  of Retirement  sent DMH  incorrect            information.  Cf. Mesnick v. General Elec. Co., 950 F.2d 816,                          ___ _______    _________________            826 (1st Cir. 1991) ("the intentions of a third party may not            be attributed to an employer without some rational basis  for            attribution"), cert. denied, 112 S. Ct. 2965 (1992).                           _____ ______                      We focus in particular on the fact that Udo was not            recalled to his  position at  Taunton.  While  this tends  to            indicate  that DMH  did  not want  to  rehire him,  and  thus            supports the  inference that  the restriction on  his license            may  have been  a pretext,  it does not  by itself  provide a            basis for inferring age or race discrimination.  That DMH may            have violated the collective  bargaining agreement yet  again            when it  failed to recall Udo  does not indicate  that DMH is            thereby also liable under Title VII or the ADEA.                      Because Udo has  not presented evidence that  would            enable a rational jury to find  that he was laid off  because            of  age or race discrimination, we hold that DMH was entitled            to  summary judgment  on  Udo's age  and race  discrimination            claims.            C.  Section 1983            ________________                      Udo  also sued  Tomes in  his individual  capacity,            claiming that  Tomes violated  his civil rights  by depriving            him of  employment through  an unlawful  layoff based  on his            race, in violation of 42 U.S.C.    1983.  Because, as we held            above, Udo failed to raise a  triable issue as to whether his                                         -13-                                          13            layoff was motivated  by discriminatory intent, the  district            court properly granted Tomes summary judgment on this claim.                                         -14-                                          14                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      We hold that  Udo failed to create  a genuine issue            of triable fact  on his age  and race discrimination  claims,            and  therefore  also  on  his    1983  claim.    Accordingly,            defendant was entitled to summary judgment.  The  judgment of            the district court is therefore                      Affirmed.                      ________                                         -15-                                          15
