
USCA1 Opinion

	




          March 8, 1996     UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1556                                     KATHY SMITH,                                Plaintiff, Appellant,                                          v.                               F.W. MORSE & CO., INC.,                                 Defendant, Appellee.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of this court  issued on February  12, 1996, is          corrected as follows:          On  page 21,  line 15,  change "(1st  Cir. 1995)"  to  "(1st Cir.          1996)"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1556                                     KATHY SMITH,                                Plaintiff, Appellant,                                          v.                               F.W. MORSE & CO., INC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Debra  Weiss  Ford,  with whom  Edmond  J.  Ford, Eileen  L.               __________________              ________________  __________          Koehler,  and  Ford,  Ford &  Weaver,  P.A.  were  on brief,  for          _______        ____________________________          appellant.               Raymond P.  Blanchard, with whom Taylor,  Keane & Blanchard,               _____________________            ___________________________          P.A. was on brief, for appellee.          ____                              _________________________                                  February 12, 1996                              _________________________                    SELYA,  Circuit Judge.  In this  appeal, the  plaintiff                    SELYA,  Circuit Judge.                            _____________          invites  us to  overrule  the district  court's adverse  decision          under Title  VII of the  Civil Rights Act  of 1964, 42  U.S.C.             2000e-2000e-17 (1988)  (Title VII),  and to reinstate  her common          law  causes  of  action  for  breach  of  contract  and  wrongful          discharge.  We decline the invitation in all its aspects.          I.  BACKGROUND          I.  BACKGROUND                    We  chronicle the  events that  preceded the  filing of          suit and then recount what transpired thereafter.                              A.  Chronology of Events.                              A.  Chronology of Events.                                  ____________________                    Damar  Plastics  &  Metal  Fabricators,   Inc.  (Damar)          operated  a job  shop  in Somersworth,  New  Hampshire, where  it          crafted  custom  components  for   high-technology  applications.          Plaintiff-appellant Kathy Smith joined Damar in 1976 and advanced          steadily through  the ranks  until she  reached  the position  of          production  manager  almost a  decade later.   In  that capacity,          Smith scheduled production  runs and coordinated delivery  dates.          In late  1987, after an  imbroglio with Darrol  Robinson (Damar's          owner   and  general   manager),   she  requested   and  obtained          reassignment  to a  different post  having no  responsibility for          production scheduling.                    On December  23, 1988, defendant-appellee F.W.  Morse &          Co., Inc. (Morse), a  firm owned by Chris Bond,  acquired Damar's          business  and assets.  Damar then had fewer than forty employees,          including seven managers reporting directly to Robinson:  Michael          Hickman  (production  control);  Robert  Lane  (shipping); Ronald                                          3          Paradis (production/machining);  Marc Shevenell (production/sheet          metal); Gary Bickford (engineering);  Michael Seeger (sales); and          Smith.    Though  not  titled,  Smith  testified  that   she  was          considered  to  be a  de facto  manager  who, largely  because of          Hickman's  inadequacies,  performed many  of  the  duties of  the          production control manager.                    Bond promptly concluded that  Damar had too many chiefs          and  too few  Indians.   Within  days of  the  closing, he  fired          Hickman.   Then, in concert with Maryann Guimond, the new general          manager  (who  had  authority   to  hire,  fire,  and  discipline          personnel),  he  interviewed  a  number  of employees,  including          Smith.   In the aftermath  of this review,  the company cashiered          Lane.   To  fill  the void  created  by the  two  executive-level          departures, Morse promoted Smith to the newly created position of          materials manager, consolidating responsibilities for scheduling,          production  control, inventory control, purchasing, shipping, and          receiving that had previously been spread among three managers.                    All  told,  Morse's   initial  reorganization   efforts          substituted  Guimond  for   Robinson  and  pared   second-echelon          management  from  seven to  five.   In  addition to  Guimond, the          reconfigured  management  team  comprised   Paradis  (machining);          Shevenell  (sheet metal); Bickford (engineering); Seeger (sales);          and  Smith  (materials).   In  recognition  of Smith's  increased          responsibilities, Morse  twice hiked her pay (once in January and          again in March),  thus increasing her  weekly stipend by  roughly          twenty-five percent.                                          4                    At about the time of the takeover, Smith informed  Bond          that  she had become pregnant  and would need  a maternity leave.          Morse,  a tiny  company,  had no  formal maternity  leave policy.          Bond nonetheless honored Smith's request and assured her that her          position  was "secure."  In preparation for her leave, Smith held          several  meetings  with Guimond,  Shevenell,  and  Paradis.   The          company temporarily distributed her managerial duties among other          supervisors  and  arranged  for a  newly-hired  secretary,  Kelly          Gilday,  to  perform her  clerical  functions.   Along  the  way,          Guimond informed  Smith that  either Paradis or  Shevenell likely          would  be discharged,  and told  her that  she would  be promoted          again  upon  her  return  from  maternity  leave.   Guimond  also          indicated that,  in all  probability, Bickford would  be demoted,          and Smith  would  be asked  to assume  a portion  of his  duties.          While   these   changes   presumably  would   warrant   increased          remuneration, Guimond did not mention an amount.                    On  April 7,  1989,  Smith began  her maternity  leave,          planning to  return to work in approximately six weeks.  She gave          birth two weeks later.  Meanwhile, Guimond, expecting the "sky to          fall," held  regular "reality check" meetings  with Shevenell and          Paradis.   To  her  surprise, the  plant  functioned very  well.1          Guimond reported the good news to Bond.                    Smith visited the plant on  May 1 and informed  Guimond          that  she  wished  to  return  to  work  one  week  earlier  than                                        ____________________               1During  this same  time frame,  the company  eliminated the          engineering manager's position.  However, Bickford remained  with          Morse in a lesser capacity.                                          5          originally  anticipated.   Guimond inquired  about whether  Smith          desired  more children,  and  Smith replied  affirmatively.   The          following day, Guimond queried  Karen Vendasi, Smith's sister and          co-worker,  about Smith's plans to have a larger family.  Vendasi          relayed this conversation to Smith and told her of nascent rumors          to the effect that she might not return to work.  Smith contacted          Guimond  and  demanded  an   explanation.    Guimond  denied  any          knowledge  of the rumors, dismissed them as idle buzznacking, and          again  assured Smith that her  job was secure.   Guimond repeated          these assurances during a chance meeting on May 4.                    A few days later,  Guimond concluded that the materials          manager's position  was superfluous and decided  to eliminate it.          She told Smith of her decision on May 11.   During this telephone          conversation, Guimond asked Smith if  she preferred people to  be          told that she  had decided to stay at home  with her infant child          rather than that  she had  been discharged.   Smith rejected  the          suggestion.  Nevertheless, a  Morse employee repeated this canard          to several customers.2                    Following Smith's  severance, Guimond gave  most of her          duties  to Paradis  in his  new capacity  as operations  manager.          Shevenell assumed the role of manufacturing manager (in charge of          both  machining and sheet metal work).  Guimond also promoted two          lower-ranking  employees, Peter  Lapanne  and  Brian Hoffman,  to          assistant  manager  positions (though  evidence adduced  at trial                                        ____________________               2The company  reprimanded the employee  and trial  testimony          tended to establish that Morse had not authorized the comments.                                          6          demonstrated that Lapanne  had been an  assistant manager as  far          back   as  1984,   and   that  neither   man   assumed  any   new          responsibilities or received  any salary  increase in  connection          with  his new title).   Gilday continued to  perform the clerical          functions  associated with  Smith's  former position.   When  the          second round  of the  reorganization wound  down,  the plant  had          three second-echelon managers    Paradis (operations);  Shevenell          (manufacturing); and  Seeger (sales)    in lieu  of the  original          seven.                               B.  Procedural History.                               B.  Procedural History.                                   __________________                    Smith  sued  Morse  in  a  New  Hampshire  state  court          alleging,  inter   alia,  wrongful  discharge   based  on  gender                     _____   ____          discrimination, intentional infliction of emotional distress, and          breach of contract.   Morse removed the case to  federal district          court on the ground  that Smith's claim "arose under"  Title VII,          thus prompting federal question  jurisdiction.  See 28  U.S.C.                                                             ___          1331,   1343(c)(3),  1441,  1446;  see  also  28  U.S.C.     1367                                             ___  ____          (conferring  ancillary  jurisdiction  over   appended  nonfederal          claims).   Smith thereafter filed an amended  complaint that made          her Title VII claim explicit.                    Early  in the  proceedings,  Morse  moved  for  partial          summary judgment.   The  district court  (Stahl, J.) granted  the          motion  on  the  common  law  wrongful  discharge  and  emotional          distress claims.  See  Smith v. F.W. Morse  & Co., No.  90-361-S,                            ___  _____    _________________          slip op. at 12 (D.N.H. Sept. 26, 1991) (unpublished) (Smith I).                                                                _______                    Several  years later, the  parties simultaneously tried                                          7          the Title VII  claim to the bench (McAuliffe,  J.) and the breach          of contract  claim to a jury.3   At the close  of the plaintiff's          case, the district court entered  judgment as a matter of law  in          the  defendant's  favor on  the  breach  of  contract  claim  and          disbanded  the jury.   The  Title VII  case proceeded  before the          district judge.   Morse asserted  that it scrapped  the materials          manager's  position  and laid  off the  appellant  as part  of an          overarching   strategy  to  streamline   a  top-heavy  managerial          structure, and that even if Smith had not been on maternity leave          she would have been flattened by the downsizing steamroller.  The          district  court agreed  and  entered judgment  accordingly.   See                                                                        ___          Smith v.  F.W. Morse  & Co.,  901 F. Supp.  40, 45  (D.N.H. 1995)          _____     _________________          (Smith II).  This appeal ensued.           ________          II.  THE TITLE VII CLAIM          II.  THE TITLE VII CLAIM                    The crown jewel of the appellant's asseverational array          is her contention that  the district court erred in  finding that          Morse  did not discriminate against her  on the basis of her sex.          Our appraisal of this contention is in three parts.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    Following a  bench trial, the court  of appeals reviews                                        ____________________               3The Civil Rights  Act of 1991, Pub. L. 102-166,    102, 105          Stat. 1071, 1073  (1991) (codified at  42 U.S.C.    1981a(c)(1)),          authorizes trial  by jury in  Title VII cases.   Since the events          that  form the basis of  the appellant's claim  occurred prior to          the effective date of  the 1991 Act, she  had no right to  a jury          trial on her  Title VII claim.  See Landgraf  v. USI Film Prods.,                                          ___ ________     ________________          Inc., 114  S. Ct. 1483, 1487 (1994) (holding that the 1991 Act is          ____          not retroactive).  By like token,  the Price Waterhouse framework                                                 ________________          for proof  of "mixed-motive"  discrimination that we  describe in          Part II(B), infra, is  somewhat changed under the 1991  Act.  See                      _____                                             ___          Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995).          ______    ______                                          8          the trier's factual determinations  for clear error, see Cumpiano                                                               ___ ________          v. Banco Santander P.R.,  902 F.2d 148, 152 (1st Cir. 1990); Fed.             ____________________          R.  Civ.  P. 52(a),  but affords  plenary  review to  the trier's          formulation  of  applicable legal  rules,  see  Johnson v.  Watts                                                     ___  _______     _____          Regulator  Co.,  63  F.3d  1129,  1132  (1st  Cir.  1995).    The          ______________          jurisprudence of clear error  constrains us from deciding factual          issues anew.   See, e.g., Jackson v. Harvard Univ., 900 F.2d 464,                         ___  ____  _______    _____________          466  (1st  Cir.), cert.  denied, 498  U.S.  848 (1990);  Keyes v.                            _____  ______                          _____          Secretary  of  the Navy,  853 F.2d  1016,  1019 (1st  Cir. 1988).          _______________________          Indeed,  we may  not disturb  the district  court's record-rooted          findings of fact unless on the whole of the evidence we reach the          irresistible conclusion  that  a  mistake  has been  made.    See                                                                        ___          Cumpiano,  902 F.2d at 152;  RCI Northeast Servs.  Div. v. Boston          ________                     __________________________    ______          Edison Co., 822 F.2d 199, 203 (1st Cir. 1987).          __________                    This deferential  standard extends not only  to factual          findings  simpliciter  but  also  to inferences  drawn  from  the          underlying facts.   See Cumpiano,  902 F.2d at  152.   Similarly,                              ___ ________          findings regarding an actor's  motivation fall within the shelter          of  Rule 52(a), and, therefore,  if the trial  court's reading of          the record on such an issue is plausible, appellate review  is at          an end.  See Foster v.  Dalton,71 F.3d 52, 56-57 (1st Cir. 1995);                   ___ ______     ______          Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991).          _______    _______                         B.  The Jurisprudence of Title VII.                         B.  The Jurisprudence of Title VII.                             ______________________________                    Title VII  provides, inter alia, that it is an unlawful                                         _____ ____          employment practice  for an  employer to discharge  an individual          because of  her sex.  See  42 U.S.C.   2000e-2(a)(1).   After the                                ___                                          9          Supreme  Court  held  that  this phraseology  did  not  proscribe          discrimination on the  basis of pregnancy, see  General Elec. Co.                                                     ___  _________________          v. Gilbert, 429 U.S. 125, 145-46 (1976), Congress augmented Title             _______          VII  by enacting the Pregnancy  Discrimination Act of 1978 (PDA),          Pub. L. 95-555,   1,  92 Stat. 2076, 2076 (1978) (codified  at 42          U.S.C.   2000e(k)).  The PDA made clear that:                    The terms  "because of sex" or  "on the basis                    of sex"  include,  but are  not  limited  to,                    because  of or  on  the  basis of  pregnancy,                    childbirth,  or  related medical  conditions;                    and women affected by  pregnancy, childbirth,                    or  related  medical   conditions  shall   be                    treated the same  for all  employment-related                    purposes, including receipt of benefits under                    fringe benefit programs, as other persons not                    so affected  but similar in their  ability or                    inability to work.          42  U.S.C.   2000e(k).  Thus, at  the time Smith and Morse parted          company,  Title VII's  ban on  gender  discrimination encompassed          pregnancy-based discrimination.                    Like other  Title VII plaintiffs, an  employee claiming          discrimination on the basis of pregnancy may proceed under either          a  disparate  treatment  or  a  disparate  impact  theory.    See                                                                        ___          generally Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579-          _________ ____________________    ______          80  (1978)  (explaining  the  dichotomy).   Here,  the  appellant          alleged disparate treatment.  Consequently, she had the burden of          proving that the defendant purposefully terminated her employment          because of her pregnancy.                    In cases  predating the Civil  Rights Act of  1991, see                                                                        ___          supra   note   3,   the   framework   for   proving   intentional          _____          discrimination  varies depending  on  the availability  of direct                                          10          evidence.   See Fields  v. Clark Univ.,  966 F.2d 49,  51-52 (1st                      ___ ______     ___________          Cir.  1992), cert. denied, 113  S. Ct. 976  (1993); Cumpiano, 902                       _____ ______                           ________          F.2d at 153.   Absent  the evidentiary equivalent  of a  "smoking          gun," the plaintiff must attempt to prove her case by resort to a          burden-shifting framework.  See  Texas Dep't of Community Affairs                                      ___  ________________________________          v. Burdine,  450 U.S. 248, 254-56 (1981); McDonnell Douglas Corp.             _______                                _______________________          v. Green,  411 U.S.  792, 802  (1973).  Under  this framework,  a             _____          plaintiff  can   establish  a  prima  facie   case  of  pregnancy          discrimination  by  showing that  (1)  she  is pregnant  (or  has          indicated  an   intention  to  become  pregnant),   (2)  her  job          performance   has  been  satisfactory,   but  (3)   the  employer          nonetheless  dismissed her from her position  (or took some other          adverse employment  action against  her) while (4)  continuing to          have her duties performed by a comparably qualified person.  See,                                                                       ___          e.g., Cumpiano, 902 F.2d  at 153; Lipsett v. University  of P.R.,          ____  ________                    _______    ___________________          864 F.2d 881, 899 (1st Cir.  1988).  Establishing the prima facie          case raises a rebuttable presumption  that discrimination sparked          the adverse employment action, see Cumpiano, 902 F.2d at 153, and                                         ___ ________          imposes upon the employer  a burden to put forward  a legitimate,          nondiscriminatory motive for  the action.  See  Burdine, 450 U.S.                                                     ___  _______          at 254-55;  Lipsett, 864  F.2d at 899.   If the  defendant clears                      _______          this modest hurdle, the  presumption of discrimination vaporizes,          see  Mesnick v. General  Elec. Co., 950  F.2d 816, 823  (1st Cir.          ___  _______    __________________          1991), cert.  denied, 504  U.S. 985  (1992),4  and the  plaintiff                 _____  ______                                        ____________________               4Mesnick  is a case brought under  the Age Discrimination in          Employment  Act (ADEA), 29  U.S.C.    621-634,  rather than under          Title VII.   The same burden-shifting  framework applies in  both                                          11          (who  retains the ultimate burden  of persuasion on  the issue of          discriminatory  motive  throughout)  must  then  prove  that  the          employer's   proffered    justification   is   a    pretext   for          discrimination,  see St. Mary's Honor  Ctr. v. Hicks,  113 S. Ct.                           ___ ______________________    _____          2742, 2749 (1993); Mesnick, 950 F.2d at 823-24.                             _______                    On the  relatively rare occasions when a smoking gun is          discernible   that is, when a  plaintiff produces direct evidence          that  the protected characteristic was a motivating factor in the          employment   action      the  McDonnell   Douglas  framework   is                                        ___________________          inapposite.  See Fields, 966 F.2d at 52.  In  those cases, direct                       ___ ______          evidence  of discriminatory  motive    say, an  admission by  the          employer that it explicitly  took actual or anticipated pregnancy          into account in reaching an employment decision   serves to shift          the burden of persuasion  from employee to employer.   The latter          must  then affirmatively prove that  it would have  made the same          decision even if  it had not  taken the protected  characteristic          into account.  See Price Waterhouse v. Hopkins, 490 U.S. 228, 258                         ___ ________________    _______          (1989) (plurality op.); id. at 265-67 (O'Connor, J., concurring).                                  ___                    The seeming  neatness of this dichotomy  is illusory in          certain  respects,   for   evidence   rarely   comes   in   tidy,          geometrically precise packages.  In many cases, the  line between          McDonnell Douglas, on  one hand,  and  Price  Waterhouse, on  the          _________________                      _________________          other  hand, is  blurred.   In  those situations,  classification                                        ____________________          instances; therefore, ADEA cases have solid precedential value in          Title  VII litigation.  Hence, we  cite herein interchangeably to          Title VII  and ADEA  cases, often without  distinguishing between          them.                                          12          depends on  both the  quantity and quality  of the  proof that  a          court  deems   sufficient  to   constitute  direct   evidence  of          discriminatory animus.                    Discretion is  sometimes the better part  of valor, and          courts  often wisely  decide  to sidestep  difficult  theoretical          questions  if answers  to them  are not  essential to  the proper          resolution of a given case.  We have here a good example  of such          a  prudential approach.   The  trial  court largely  bypassed any          differential  direct  evidence/circumstantial evidence  tamisage,          preferring to go directly to a  finding that, on the totality  of          the   evidence   presented,   Morse   had   proven  that   gender          discrimination did not trigger the firing.  See Smith II, 901  F.                                                      ___ ________          Supp. at 44-45.  This approach negates any need for  us to pursue          the question of an analytic  framework to a definite  conclusion.          While we  agree with our concurring colleague that the decisional          process  is  important,  there comes  a  point  at which  slavish          insistence upon process for its own sake serves only to exalt the          trappings  of justice  over its  substance.   Here, the  district          court's finding on causation,  if sustainable, resolves the Title          VII claim whether  the appellant's prima facie  case arises under          the  McDonnell Douglas or Price  Waterhouse paradigm.   And as we               _________________    _________________          illustrate  below, see  infra  Part III(C),  that finding  passes                             ___  _____          muster.                                   C.  The Merits.                                   C.  The Merits.                                       __________                    Consistent  with the  district court's  approach, Morse          must be assumed to have  had the burden of proving that  it would                                          13          have taken the  same action    the elimination  of the  materials          manager's  position     whether   or  not  the  appellant  became          pregnant,  took  a  maternity  leave,  or  planned  to bear  more          children.    The court  found that  Morse  carried the  devoir of          persuasion on  this  pivotal issue.   It  concluded that  Morse's          decision was  "motivated by business judgment  and represented an          effort to economize  by placing the  most qualified personnel  in          the fewest number  of managerial positions possible, and  was not          based on  plaintiff's gender, pregnancy, or  her expressed desire          to have more children."  Smith II, 901 F. Supp. at 44.  The court                                   ________          also  concluded  "that  even  if   Guimond  is  assumed  to  have          considered impermissible gender-based  factors, the same decision          to  eliminate plaintiff's position would  still have been made at          the same  time" for reasons of business necessity.  Id.  The crux                                                              ___          of our inquiry is whether these findings are clearly erroneous.                    There is little doubt that an employer, consistent with          its business judgment, may  eliminate positions during the course          of a  downsizing without  violating Title  VII even  though those          positions are held by members of protected groups (pregnant women          included).  See, e.g., LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,                      ___  ____  _______    __________________          844-45 (1st Cir.  1993), cert.  denied, 114 S.  Ct. 1398  (1994);                                   _____  ______          Goldman v. First  Nat'l Bank,  985 F.2d 1113,  1118-19 (1st  Cir.          _______    _________________          1993);  Montana v. First  Fed. Sav. &  Loan Ass'n, 869  F.2d 100,                  _______    ______________________________          105, 107 (2d Cir.  1989); Dister v. Continental Group,  Inc., 859                                    ______    ________________________          F.2d  1108, 1115 (2d Cir. 1988); Pearlstein v Staten Island Univ.                                           __________   ___________________          Hosp.,  886 F. Supp. 260, 268-69 (E.D.N.Y. 1995).  This is merely          _____                                          14          a  reflection  of a  central  theme that  permeates  the relevant          jurisprudence:   insofar as Title  VII is concerned,  an employer          can hire or fire one employee instead of  another for any reason,          fair or unfair, provided that the employer's choice is not driven          by   race,   gender,   pregnancy,   or   some   other   protected          characteristic.   See Foster, 71  F.3d at 56; Keyes,  853 F.2d at                            ___ ______                  _____          1026; see  also Freeman v. Package Mach. Co., 865 F.2d 1331, 1341                ___  ____ _______    _________________          (1st Cir.  1988) (elucidating similar proposition  in ADEA case).          The flip  side of  the  coin, however,  is that  an employer  who          selectively cleans house cannot hide behind convenient euphemisms          such as "downsizing" or "streamlining."   Whether or not trimming          the fat  from  a  company's  organizational chart  is  a  prudent          practice in  a particular  business  environment, the  employer's          decision to eliminate specific positions must not be tainted by a          discriminatory  animus.    See Goldman,  985  F.2d  at  1118 n.4;                                     ___ _______          Maresco v. Evans  Chemetics, 964  F.2d 106, 111  (2d Cir.  1992);          _______    ________________          Mesnick, 950 F.2d at 825; Pearlstein, 886 F. Supp. at 268-69.          _______                   __________                    Against this  backdrop,  we believe  that the  evidence          adequately supports the trial court's findings.  When Morse  took          over, Damar had an inordinately high ratio of managers to workers          and the  managers' responsibilities  overlapped.5  Both  Bond and          Guimond testified  that from  the very  start they believed  that          Damar's  sprawling  organizational  structure  defied   rhyme  or          reason.   Accordingly,  they  set out  to  compress some  of  the                                        ____________________               5To  cite an  example,  Damar split  the responsibility  for          manufacturing  between two  managers  (Shevenell and  Paradis), a          situation that, in appellant's own phrase, caused daily "chaos."                                          15          sprawl.  The district court credited their intention, noting that          the witnesses' actions  matched their stated objective.   More to          the point,  Guimond testified  that she terminated  the appellant          "because  I had  a position that  I no  longer felt  needed to be          filled."   Bond testified in  the same vein,  indicating that he,          too, had  become convinced that Smith's  position was expendable.          The court  accepted this evidence, concluding  that the materials          manager's  position would  have been  eliminated within  the same          time frame whether or not Smith had taken a maternity leave.                    In our view, this determination,  while not inevitable,          is supportable.  In the first place, the record strongly suggests          that, in fact, the position was expendable.  In the second place,          any other  choice  would  have entailed  a  loss  of  engineering          expertise that Damar could ill afford.6  In  the third place, the          court's  view is  bolstered by  the reception that  the appellant          originally received from  the new  ownership.   Bond and  Guimond          apprised  her   of  the  planned  downsizing   and  assigned  her          significant  new   responsibilities  when  other   managers  were          dismissed.     They   also   promoted  her   and  increased   her          compensation.  These actions, undertaken with full knowledge that          the  appellant  was  pregnant  and  would  be  taking a  six-week          maternity leave,  are inconsistent  with a bias  against pregnant                                        ____________________               6Bond  testified  that he  purchased  Damar  to acquire  its          engineering talents.   Paradis and Shevenell  were highly trained          and experienced  engineers, while Smith had  no such credentials.          When Morse  discovered  that  it  could function  with  one  less          manager,  the  decision  to  retain Paradis  and  Shevenell,  and          dismiss Smith, seems quite plausible.                                          16          employees.  In the  fourth place, the district judge,  sitting as          the trier of fact,  had the right to credit Bond's testimony that          the "maternity leave never  played a role in itself"  because the          same  decision "would have been made in a very close time frame,"          and Guimond's testimony  to like effect.  In a  bench trial, such          credibility judgments are the  judge's prerogative.  See Anthony,                                                               ___ _______          952 F.2d at 606.                    To be sure,  the record could support a  less innocuous          conclusion.   The chronal proximity of  Guimond's questions anent          Smith's plans to have more children and her dismissal,  Guimond's          ill-advised suggestion that customers  and employees be told that          Smith  decided to  stay at  home  to care  for her  daughter, and          Smith's  termination while on maternity  leave are troubling   so          much so  that  we, if  free  to write  a palimpsest,  might  have          characterized   the  impetus   behind   the  appellant's   ouster          differently.  But  whether the  trial court could  have drawn  an          inference  of discriminatory intent is not the test.  See Foster,                                                                ___ ______          71 F.3d at 55; Keyes,  853 F.2d at 1027.   As long as a  contrary                         _____          inference is also supportable   and  that is the situation here            then it is for the trial court, not the court of appeals, to call          the tune.   After all, "when there  are two permissible  views of          the  evidence, the  factfinder's  choice between  them cannot  be          clearly erroneous."  Johnson, 63 F.3d at 1138 (citing Anderson v.                               _______                          ________          City of Bessemer City, 470 U.S. 564, 574 (1985)).          _____________________                    In  an effort to evade the force of this principle, the          appellant hauls two further  arguments from her bag.   First, she                                          17          asseverates that Morse  did not in  fact eliminate her  position,          and that the district court's contrary finding, see Smith II, 901                                                          ___ ________          F. Supp. at 43,  is itself clearly erroneous.   This asseveration          leads down a blind alley.                    When  an employer defends  an employment discrimination          case on the ground of position elimination, the position may not,          like a Dali painting, fade from one image to another only for the          first  image to reemerge  at the blink  of an eye.   See Gallo v.                                                               ___ _____          Prudential Residential  Servs., Ltd.  Partnership, 22  F.3d 1219,          _________________________________________________          1226-28 (2d Cir. 1994); LeBlanc, 6 F.3d at 846; Barnes v. GenCorp                                  _______                 ______    _______          Inc., 896 F.2d 1457, 1465 (6th Cir.),  cert. denied, 498 U.S. 878          ____                                   _____ ______          (1990).   Yet,  a  position elimination  defense is  not defeated          merely  because  another employee,  already  on  the payroll,  is          designated  to  carry out  some or  all  of the  fired employee's          duties  in addition  to  his own,  or  because those  duties  are          otherwise  reallocated  within  the  existing work  force.    See                                                                        ___          LeBlanc,  6  F.3d  at  846;  Barnes,  896  F.2d  at  1465.    The          _______                      ______          elimination of a position signifies the employer's belief that it          can get by with one less helper; it does not necessarily convey a          belief  that the work the employee had been doing was superfluous          and need not be performed at all.                    Here, the undisputed evidence before the district court          indicates that  after Guimond dismissed Smith,  the position that          Smith  had occupied    materials  manager   fell  into desuetude.          There is no basis in the record for a suggestion  that Lapanne or          Hoffman  assumed  any of  the  appellant's  former duties;  those                                          18          duties, which Paradis, Shevenell, and Gilday had performed during          Smith's leave, continued to  be performed by them (or,  at least,          by Paradis  and  Gilday).   In  short, the  second round  of  the          reorganization  (which  cost  Smith  her  job)  bore  a  striking          resemblance to the first round (which gave Smith her promotion to          materials  manager).   Given  these facts,  the district  judge's          determination that Morse eliminated  the appellant's position  is          unimpugnable.                    The  appellant next  endeavors  to  surmount the  sharp          escarpment of the clearly erroneous rule by casting a hook at the          legal  standard  applied  by   the  trial  court.    This   is  a          theoretically  sound  way  to  climb  the  mountain,  see,  e.g.,                                                                ___   ____          Reliance Steel Prods.  Co. v.  National Fire Ins.  Co., 880  F.2d          __________________________     _______________________          575, 577 (1st Cir. 1989) (explaining that appellate courts review          questions of law de novo, even  after a bench trial), but in this          case  the hook  does  not hold.   The  appellant's  thesis is  as          follows.   She  says that  Title VII  prohibits an  employer from          dismissing  an employee while she  is on maternity  leave even if          the  employer, in  the process of  rationalizing its  work force,          discovers that  her position is  redundant and eliminates  it for          that reason.                    Refined  to bare  essence, this  thesis suggests  that,          since Morse would not have discovered the redundancy at that time          (if ever) but for the fact that Smith took a maternity leave, the                                          19          leave brought about the  firing.7  And the appellant  attempts to          drive this point  home by citing Bond's  testimony that "because"          Smith was out on maternity leave, Morse was able to discover that          her  position  was expendable     testimony  which the  appellant          optimistically equates with an admission that Morse dismissed her          "because" of her pregnancy.   With respect, we believe  that this          argument, which seeks to apply a  black-letter legal principle in          a  totally   mechanical  fashion,  plays  mischievously   on  the          mendacity of language by substituting sound for sense.                    It  is settled under Title VII that an employer may not          discharge  an  employee based  on  the  categorical fact  of  her          pregnancy.  See Newport News Shipbuilding & Dry Dock Co. v. EEOC,                      ___ ________________________________________    ____          462 U.S. 669, 684 (1983); Cumpiano, 902 F.2d at 153.  By the same                                    ________          token, since a short-term inability to work is  bound up with the          very  nature of  pregnancy and  childbirth, that disability  is a          pregnancy-related  condition within  the meaning  of 42  U.S.C.            2000e(k),  and   Title  VII  thus  prohibits   an  employer  from          dismissing an  employee in  retaliation for taking  an authorized          maternity leave.  Nevertheless, under the PDA, pregnancy does not          confer total  immunity.8  An  employer may discharge  an employee                                        ____________________               7We  note  in  passing  that the  appellant's  reasoning  is          hopelessly  circular.   Morse demonstrated  a firm  commitment to          downsizing and actively sought ways to streamline its operations.          Consequently,  there is no  basis for surmising  that Morse would          have failed to realize that the materials manager's position  was          superfluous whether or not Smith took a maternity leave.               8We stress that  this case  is brought pursuant  to, and  is          governed  by,  Title VII.   If  the  recently enacted  Family and          Medical  Leave  Act  of 1993,  P.L.  103-3,  107  Stat. 6  (1993)          (codified at 29 U.S.C.    2601-2654) were applicable, a different                                          20          while  she is  pregnant  if it  does  so for  legitimate  reasons          unrelated  to  her pregnancy.   See,  e.g.,  Troupe v.  May Dept.                                          ___   ____   ______     _________          Stores Co., 20 F.3d 734, 738 (7th Cir.  1994); Pearlstein, 886 F.          __________                                     __________          Supp.  at 268-69; see also Lipsett, 864 F.2d at 899 (holding that                            ___ ____ _______          an employer may  dismiss an employee who is in  a protected class          for a  nondiscriminatory reason); Johnson v. Allyn & Bacon, Inc.,                                            _______    ___________________          731  F.2d 64,  70 (1st Cir.  1984) (similar).   It follows, then,          that an  employer may  discharge an  employee while  she is  on a          pregnancy-induced  leave so  long as  it does  so for  legitimate          reasons unrelated to her gravidity.                    Harmonizing these  principles  leads to  the  following          conclusions.  Title  VII mandates  that an employer  must put  an          employee's pregnancy (including her departure on maternity leave)          to one side in making its employment decisions    but the statute          does not command  that an employer bury its head  in the sand and          struthiously  refrain from implementing business judgments simply          because they affect a  parturient employee.  See Troupe,  20 F.3d                                                       ___ ______          at 738  (holding that the PDA "requires the employer to ignore an          employee's  pregnancy, but  . .  . not  her absence  from work");          Crnokrak v. Evangelical  Health Systems Corp., 819  F. Supp. 737,          ________    _________________________________          743  (N.D. Ill.  1993)  (stating that  "the  PDA does  not  force          employers to  pretend that absent employees  are present whenever          their absences are caused  by pregnancy").  At bottom,  Title VII          requires  a causal nexus between the employer's state of mind and          the  protected trait  (here,  pregnancy).   The mere  coincidence                                        ____________________          set of rules would obtain.                                          21          between that trait and  the employment decision may give  rise to          an inference of discriminatory animus, see St. Mary's, 113 S. Ct.             _________                           ___ __________          at 2747, but it is not enough to establish a per  se violation of          the statute (at least when, as now, the justification advanced by          the employer in support of the employment decision is on its face          legitimate and nondiscriminatory).9                    To sum up, an employee (pregnant or not) runs a risk of          suffering  the  ordinary  slings  and  arrows  that  suffuse  the          workplace  every day  she goes to  work and  every day  she stays          away.  Title  VII is neither a shield against this broad spectrum          of employer actions nor a  statutory guaranty of full employment,          come what  may.   Applying the PDA  as the  appellant asks  would          eliminate   an  employer's  business  necessity  defense     long          recognized  under Title VII    and cripple  industry's ability to          manage workers in  keeping with nondiscriminatory considerations.          That is not the law.  See Bowen v. Valley Camp of Utah, Inc., 639                                ___ _____    _________________________          F. Supp. 1199, 1204 (D. Utah 1986) (explaining that Title VII, as          amended  by  the  PDA,  does   not  "preclude  an  employer  from          articulating legitimate nondiscriminatory reasons for terminating          a woman while she was on maternity leave"); see generally Blackie                                                      ___ _________ _______                                        ____________________               9Say,  for   example,  a  Jewish  employee,   in  charge  of          maintaining  corporate records, stays home  for a week to observe          Passover.  In her absence, her employer rummages through the file          drawers that she maintains in search of  a particular memorandum.          The employer  finds a packet of  heroin.  The  employer would not          have had the occasion  to look through the  file drawers but  for          the  fact  that the  employee was  on  religious leave;  he would          simply  have  asked  the   employee  for  the  memo.     In  such          circumstances,  we think it is  clear that the  employer can fire          the  employee for  introducing drugs  into the  workplace without          violating Title VII's ban on religious discrimination.                                          22          v. Maine, ___ F.3d  ___, ___ (1st  Cir. 1996) [No. 95-1777,  slip             _____          op. at 13]  (suggesting, in retaliation case,  that "[a] contrary          rule would mummify the status quo").                    Here, the  district  court found  the  requisite  nexus          lacking  between  the  employer's  mindset  and  the   employee's          gravidity.    In the  court's  estimation,  Morse discharged  the          appellant for nondiscriminatory reasons.  The record permits that          view  of the  facts.   That the  discharge took  place while  the          appellant   was  on   maternity   leave  possessed   considerable          evidentiary   significance      but  that   circumstance  neither          transformed the  character of the employer's  action nor rendered          it per se unlawful under Title VII.  The district court therefore          did not apply an erroneous legal standard.          III.  THE BREACH OF CONTRACT CLAIM          III.  THE BREACH OF CONTRACT CLAIM                    We turn  now to the appellant's  partially tried breach          of contract claim.   At the  close of her  case, the trial  court          took  this claim from the jury  and directed a verdict in Morse's          favor.  The appellant assigns error.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    The  court of appeals reviews the grant of a motion for          judgment  as a  matter of  law de  novo, applying the  same legal          principles  that inform  the trial  court's ruling.    See Rolon-                                                                 ___ ______          Alvarado  v. Municipality of  San Juan, 1  F.3d 74, 77  (1st Cir.          ________     _________________________          1993).   Accordingly, we "examine the evidence and the inferences          reasonably extractable therefrom in  the light most hospitable to          the  nonmovant."  Fashion House,  Inc. v. K  Mart Corp., 892 F.2d                            ____________________    _____________                                          23          1076,  1088  (1st  Cir. 1989).    If the  proof,  eyed  from this          standpoint,  permits  a reasonable  factfinder  to  reach only  a          conclusion favorable  to the movant,  then the court  must remove          the issue from the jury's consideration.  See id.                                                    ___ ___                    While  this  approach  does  not  allow  the  court  to          "consider  the  credibility of  witnesses,  resolve conflicts  in          testimony, or evaluate the weight of  the evidence," Wagenmann v.                                                               _________          Adams, 829  F.2d 196, 200 (1st  Cir. 1987), neither does  it pave          _____          the way for every case, no matter how sketchy, to reach the jury.          Thus, "a mere  scintilla of evidence is not enough to forestall a          directed verdict, especially on a claim or  issue as to which the          burden  of proof belongs to the objecting party."  Fashion House,                                                             _____________          892 F.2d at 1088.                                   B.  The Merits.                                   B.  The Merits.                                       __________                    The  parties   who concur  on very little  else   agree          that  New  Hampshire law  governs the  breach of  contract claim.          Under  that law, the at-will status of an employment relationship          is  "one of prima facie  construction."  Panto  v. Moore Business                                                   _____     ______________          Forms,  Inc., 547  A.2d 260, 267  (N.H. 1988).   That  is to say,          ____________          unless an  employment  relationship  explicitly  provides  for  a          definite duration, it is presumed to  be at-will.  See Butler  v.                                                             ___ ______          Walker  Power, Inc., 629 A.2d 91, 93 (N.H. 1993) (explaining that          ___________________          the at-will presumption "is a gap filler for determining duration          when  the parties'  contract of  employment is  silent as  to its          expiration").   This  is  critically important  when an  employee          challenges her ouster; an employer can give an at-will employee                                            24          even one who has been a stellar performer   her walking papers at          any  time,  for any  reason or  no  reason, unless  a  statute, a          collective bargaining agreement, or  some aspect of public policy          proscribes firing the employee on a particular basis.  See Panto,                                                                 ___ _____          547 A.2d at 267.                    Of course,  an employer and  an employee may  alter the          at-will status of the  employment relationship.  See  Butler, 629                                                           ___  ______          A.2d  at  93; Panto,  547  A.2d  at  267.   Such  a  modification                        _____          sometimes may  be accomplished  if the  employer makes  a binding          offer that the employee can accept by remaining on the  job.  See                                                                        ___          Panto, 547 A.2d  at 265.  Standard  contract formation principles          _____          govern  the creation and construction of such contracts.  See id.                                                                    ___ ___          at 264.  Thus, the "offer must  be so definite as to its material          terms or require such  definite terms in the acceptance  that the          promises  and  performances  to be  rendered  by  each  party are          reasonably certain."   Chasan v.  Village Dist.  of Eastman,  523                                 ______     _________________________          A.2d16, 21 (1986) (quoting Restatement of Contracts   32 (1932)).                    Definiteness, like beauty, is  frequently in the eye of          the beholder.   At best, it  involves matters of degree.   In the          last  analysis,  the   standard  is  reasonable   certainty,  not          mathematical precision.   See Sawin  v. Carr, 323  A.2d 924,  926                                    ___ _____     ____          (N.H.  1974).    The  provisions  of  a  contract  need  only  be          "sufficiently  certain to allow  claims of breach  to be resolved          readily,  and  to  enable  a reasonably  certain  computation  of          damages."  Panto, 547  A.2d at 264 (internal  citations omitted);                     _____          accord  Phillips v. Verax Corp.,  637 A.2d 906,  910 (N.H. 1994);          ______  ________    ___________                                          25          Sawin, 323 A.2d at 926.          _____                    In this  instance, the appellant takes  bits and pieces          of  various conversations  that  she had  with Guimond  and Bond,          pastes them together,  and argues that  a rational jury,  mulling          the  ensuing  patchwork, could  conclude  that  Morse offered  to          reinstate and  promote her  following her  maternity  leave.   By          continuing  her  employment in  the  wake of  such  promises, her          thesis runs, she accepted the offer.   The district court did not          buy  the patchwork, remarking in  its ore tenus  ruling that "the                                                ___ _____          promises   described   by  the   evidence  are   of  insufficient          definiteness  to  be  enforceable,  do  not  modify  the  at-will          employment relationship,  [and are such] that  any calculation of          damages or any identification of breach would be impracticable if          not impossible."  We agree with the lower court that the terms of          the alleged contract are too indefinite to raise a jury question.                    We start by attempting  to decipher the true  nature of          the appellant's claim.   Her lawyers tell us that  the disjointed          statements  made to her (e.g., "don't worry, we will manage while          you are on maternity leave, your job is secure," "you will assume          more  responsibilities on  your return,"  you are  "wanted back")          created  a contract to reinstate her  following the completion of          her maternity leave.  Yet, the appellant concedes that Bond's and          Guimond's statements  did not  alter the durational  component of          the at-will  employment relationship.  A contract to reinstate an          at-will employee to  an at-will  position (from  which she  could          immediately be removed without cause) is no contract at all.  See                                                                        ___                                          26          Light v. Centel Cellular Co., 883 S.W.2d 642, 645 n.5 (Tex. 1994)          _____    ___________________          (holding that, as long as the at-will character of the employment          relationship  remains  unchanged,  any  "promise made  by  either          employer  or employee  that depends  on an  additional  period of          employment is  illusory because it is  conditioned upon something          that is  exclusively within  the control  of  the promisor");  E.          Allan  Farnsworth,   Contracts      2.13,  2.14   (2d  ed.  1990)                               _________          (explaining that promises to maintain an at-will relationship are          illusory); cf.  Butler, 629 A.2d  at 94 (terming  an analytically                     ___  ______          equivalent argument "a thin reed").                    Nor  is  this  the  only shortcoming  in  the  supposed          contract for reinstatement.  The evidence also fails to establish          either the  nature of  the position  Smith was  to assume or  her          proposed  rate  of  pay.    These  gaps   seemingly  foreclose  a          reasonably certain computation of damages.                    Concluding,  as we  do, that  the alleged  contract for          reinstatement is  too indefinite  to be actionable  does not  end          this   phase  of  our  inquiry.     In  stark   contrast  to  the          reinstatement theory  proffered by her  counsel, the  appellant's          own testimony  indicates that she understood  the statements made          to  her   as  promises  of  employment   "indefinitely,"  and  as          constituting an abiding "commitment  to a permanent position with          F.W. Morse  that would never  end."   If, by this,  she means  to          suggest  a  contract  for  lifetime employment,  her  claim  also          founders.                    Although tangentially related New  Hampshire precedents                                          27          exist, the  state supreme court has not  explicitly addressed the          contours  of   contracts  for   lifetime  employment.     We  are          nonetheless confident  that the court would  adopt the prevailing          view  of such matters.   See generally Kathios  v. General Motors                                   ___ _________ _______     ______________          Corp.,  862  F.2d 944,  949 (1st  Cir.  1988) (explaining  that a          _____          federal  court, called upon to determine state law in the absence          of direct in-state precedent,  may look, inter alia, to  cases in                                                   _____ ____          other jurisdictions);  Moores v.  Greenberg, 834 F.2d  1105, 1107                                 ______     _________          (1st Cir. 1987) (similar).   That view regards such  contracts as          out  of  the ordinary,  and insists  that  an offer  for lifetime          employment must be expressed in clear and unequivocal terms to be          enforceable.   See, e.g., Williamson  v. Sharvest Mgmt.  Co., 415                         ___  ____  __________     ___________________          S.E.2d 271, 274 (W. Va. 1992); Rowe v. Montgomery Ward & Co., 473                                         ____    _____________________          N.W.2d 268, 273 (Mich. 1991);  Vance v. Huff, 568 So.2d 745,  749                                         _____    ____          (Ala.  1990); Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 381-                        ______    _____________________          82 (N.J. 1988); Degen v. Investors  Diversified Servs., Inc., 110                          _____    ___________________________________          N.W.2d  863, 866 (Minn. 1961).   Measured by  this yardstick, the          representations made by  Morse do not stand  sufficiently tall to          confer lifetime employment.  See, e.g., Williamson, 415 S.E.2d at                                       ___  ____  __________          275-76 (finding employer's statement that it would "take care of"          employee  insufficiently definite  to alter  at-will employment);          Skagerberg v. Blandin Paper  Co., 266 N.W. 872, 874  (Minn. 1936)          __________    __________________          (finding   that   the   terms   "permanent   employment,"   "life          employment," and  "as long  as the employee  chooses" established          only an at-will contract); Aberman v.  Malden Mills Indus., Inc.,                                     _______     _________________________          414 N.W.2d 769, 771-72 (Minn. Ct. App. 1987) (concluding that the                                          28          statement "we are  offering you security"  only indicated an  at-          will employment relationship).          IV.  THE WRONGFUL DISCHARGE CLAIM          IV.  THE WRONGFUL DISCHARGE CLAIM                    The  district court terminated the appellant's wrongful          discharge claim  in advance of trial  under the aegis of  Fed. R.          Civ. P. 56.  The appellant presses her objection.                          A.  The Summary Judgment Standard.                          A.  The Summary Judgment Standard.                              _____________________________                    The  Civil  Rules  empower  a court  to  grant  summary          judgment   "if    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).   We have explored          the  nooks and crannies  of this rule  in a  compendium of cases,          see, e.g. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-          ___  ____ ________    ________________________          15  (1st Cir. 1995); National Amusements, Inc. v. Town of Dedham,                               _________________________    ______________          43  F.3d 731,  735  (1st Cir.),  cert.  denied, 115  S. Ct.  2247                                           _____  ______          (1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Wynne                  ______    _____                                     _____          v.  Tufts Univ.  Sch. of  Med., 976  F.2d 791,  793-94 (1st  Cir.              __________________________          1992), cert. denied, 113 S. Ct. 1845 (1993); United States v. One                 _____ ______                          _____________    ___          Parcel of Real Property (Great Harbor Neck, New  Shoreham, R.I.),          ________________________________________________________________          960 F.2d 200, 204 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d                                             ___________    _____          112,  115-16  (1st  Cir.  1990); Medina-Munoz  v.  R.J.  Reynolds                                           ____________      ______________          Tobacco Co., 896  F.2d 5,  7-8 (1st Cir.  1990); Garside v.  Osco          ___________                                      _______     ____          Drug,  Inc., 895 F.2d  46, 48-49  (1st Cir.  1990), and  it would          ___________          serve no useful purpose to rehearse that jurisprudence here.                                          29                    For the nonce, we think it is sufficient to repeat that          "summary  judgment's role  is to  pierce the  boilerplate of  the          pleadings  and assay  the  parties' proof  in order  to determine          whether trial is  actually required."   Wynne, 976  F.2d at  794.                                                  _____          Thus, a Rule 56 motion may end the case unless the party opposing          it can identify a genuine  issue as to a material fact.   In this          regard,  "genuine" means that the  evidence on the  point is such          that  a  reasonable  jury, drawing  favorable  inferences,  could          resolve the fact in the manner urged by the nonmoving party.  See                                                                        ___          One Parcel,  960 F.2d  at 204.   By like token,  "material" means          __________          that a contested fact  has the potential to alter the  outcome of          the suit  under  the governing  law  if the  dispute  over it  is          resolved favorably to the nonmovant.  See id.                                                ___ ___                    When the summary judgment  record is compiled the trial          court must scrutinize  it "in  the light most  hospitable to  the          party  opposing  summary   judgment,  indulging  all   reasonable          inferences  in that party's favor," Griggs-Ryan, 904 F.2d at 115,                                              ___________          but disregarding "conclusory allegations,  improbable inferences,          and unsupported speculation," Medina-Munoz, 896 F.2d at 8.  If no                                        ____________          genuine  issue  of  material  fact is  discernible,  then  brevis                                                                     ______          disposition ordinarily follows.                    Because  the summary  judgment standard  requires legal          reasoning  as  opposed  to  differential  factfinding,  appellate          review  of summary judgment orders  is plenary.   See Pagano, 983                                                            ___ ______          F.2d at 347; Garside, 895 F.2d at 48.                       _______                                   B.  The Merits.                                   B.  The Merits.                                       __________                                          30                    New  Hampshire  law controls  Smith's  pendent wrongful          discharge claim.  Under that law, even an at-will employee cannot          be cashiered for a reason that offends public policy because such          an  employment decision  "is  not in  the  best interest  of  the          economic system or the pubic good and constitutes a breach of the          employment contract,"  Monge v. Beebe  Rubber Co., 316  A.2d 549,                                 _____    _________________          551 (N.H. 1974).  The appellant urges that her severance offended          the state's  policy against gender-based discrimination.   In the          court below,   Judge Stahl ruled that  when a statutory remedy is          available, New  Hampshire courts would not  entertain a complaint          that  an  at-will  employee  had been  wrongfully  discharged  in          violation of  public policy.   Therefore, the  appellant's common          law   claim  for  wrongful  discharge  failed  because  pregnancy          discrimination is redressable under Title VII.  See Smith I, slip                                                          ___ _______          op. at 9-10.                     In reaching  this conclusion, the district  court drew          heavily upon the teachings of Howard v. Dorr Woolen Co., 414 A.2d                                        ______    _______________          1273 (N.H.  1980).  The appellant  strives to convince  us that a          later New Hampshire  case, Cloutier v.  Great Atlantic &  Pacific                                     ________     _________________________          Tea Co.,  436 A.2d 1140  (N.H. 1981), defenestrates  the district          _______          court's reading of Howard.  We are not persuaded.                             ______                    In  Howard,  the plaintiff  alleged  that  he had  been                        ______          discharged because  of  age.   The  New Hampshire  Supreme  Court          construed  its seminal decision in Monge, 316 A.2d 549, "to apply                                             _____          only  to a situation where  an employee is  discharged because he          performed an act  that public policy would encourage,  or refused                                          31          to do that which public policy would condemn."  Howard, 414  A.2d                                                          ______          at  1274.   A  discharge due  to  age fell  outside  this "narrow          category" inasmuch  as  the  "proper  remedy for  an  action  for          unlawful age  discrimination is  provided for  by statute."   Id.                                                                        ___          (listing state and federal statutory remedies).  In Cloutier, the                                                              ________          court synthesized  these cases, holding  that to come  within the          judicially created public policy exception a plaintiff "must show          that the  defendant  was  motivated  by  bad  faith,  malice,  or          retaliation in  terminating [her] employment," 436  A.2d at 1143,          and  must also  "demonstrate  that [s]he  was discharged  because          [s]he performed  an act  that public  policy would  encourage, or          refused to do something that public policy would condemn," id. at                                                                     ___          1144.   Cloutier did not answer, however, the question of whether                  ________          such a  cause of action lies where, as here, the public policy at          stake is codified  in a  statute that itself  provides a  private          right of action to remedy transgressions.10                    A recently decided  case makes the import of  the state          supreme court's earlier decisions pellucid and speaks directly to                                        ____________________               10In Cloutier,  the defendant  argued that  there must  be a                    ________          statutory expression of a  public policy, and that  a generalized          assertion of a public policy (loosely based on a federal statute)          is insufficient  as a  matter of  law to  meet the  public policy          prong of a wrongful  discharge claim.  See Cloutier, 436  A.2d at                                                 ___ ________          1144-45.    The  court  disagreed, observing  that  it  had  "not          restrict[ed  the] holding  in  Howard to  situations involving  a                                         ______          public policy enunciated in a statute.  Public policy  exceptions          giving  rise to wrongful discharge  actions may also  be based on          non-statutory  policies."  Id. at  1144.  This  language means no                                     ___          more than that a  plaintiff can utilize a statutory  provision to          prove the  existence of a public policy;  it does not address the          more sophisticated issue  of whether  a plaintiff may  rely on  a          statute that provides a remedy for its violation.                                          32          the question that  confronts us here.  In  Wenners v. Great State                                                     _______    ___________          Beverages, Inc., 663  A.2d 623 (N.H. 1995),  the plaintiff relied          _______________          on a section of the Bankruptcy Code to  establish a public policy          against the termination of his employment.  See id. at  625.  The                                                      ___ ___          court held that "[w]hile a plaintiff  may not pursue a common law          remedy  where  the  legislature intended  to  replace  it  with a          statutory  cause of  action," a  wrongful discharge  action could          proceed if  the relevant  statutory provision did  not provide  a          private  cause  of  action  for its  violation.    Id.  (internal                                                             ___          citations  omitted).  We deem  this holding to  be dispositive of          Smith's contention.11                    Title VII  not only codifies the  public policy against          gender-based  discrimination  (including,  but  not  limited  to,          pregnancy  discrimination) but  also creates  a private  right of          action to remedy  violations of  that policy and  limns a  mature          procedure  for  pursuing  such an  action.    Under Wenners,  the                                                              _______          existence  of  such a  remedy  precludes  the  appellant, in  the          circumstances of this case, from asserting a common law claim for          wrongful  discharge.   It follows that  the district  court acted          impeccably in granting summary judgment on this claim.12                                        ____________________               11To  the   extent  that  either  Kopf   v.  Chloride  Power                                                 ____       _______________          Electronics,  Inc., 882 F. Supp.  1183, 1189-90 (D.N.H. 1995), or          __________________          Godfrey v.  Perkin-Elmer Corp., 794  F. Supp. 1179,  1187 (D.N.H.          _______     __________________          1992), hold otherwise, Wenners consigns them to the scrap heap.                                 _______               12We acknowledge some  apparent tension between this  ruling          and  our earlier opinion in  Chamberlin v. 101  Realty, Inc., 915                                       __________    _________________          F.2d 777, 786-87 (1st Cir. 1990).  We set Chamberlin  to one side                                                    __________          for a  pair of reasons.   First, the parties there  did not raise          the  issue of statutory preclusion, and the panel did not address          that  issue.   Second,  Wenners makes  a dispositive  difference.                                  _______                                          33          V.  CONCLUSION          V.  CONCLUSION                    We  need go  no further.   On  the factbound  Title VII          claim, this case presents a close question.  In the end, however,          we must uphold the district court's judgment because the standard          of review is generous and there  is enough evidence in the record          to  support the trier's findings.   On the two common law claims,          our task is  appreciably easier; both  claims raise questions  of          law, not of fact, and  the district court   albeit in  the person          of two different district judges   correctly resolved them.          Affirmed.          Affirmed.          ________                              Concurring opinion follows                                Concurring opinion follows                                          ____________________          When  the highest court of a state  disposes of an issue of state          law contrary to the resolution of the issue theretofore suggested          by  a federal  court,  the  latter ruling  must  give  way.   See                                                                        ___          Williams  v. Ashland  Eng'g  Co., 45  F.3d  588, 592  (1st  Cir.)          ________     ___________________          (permitting   relaxation  of   stare   decisis  principles   when          "controlling  authority,  subsequently announced,"  undermines an          earlier decision), cert. denied, 116 S. Ct. 51 (1995).                             _____ ______                                          34                      BOWNES, Senior Circuit Judge, concurring.  Although                      BOWNES, Senior Circuit Judge, concurring.                              ________________________________            I  am  compelled by  the  deference  due  a district  court's            findings  of  fact to  concur in  the  final result,  I write            separately because  I am  troubled  by the  analysis used  in            deciding  the Title  VII claim.   The  majority applauds  the            district court's  failure to fully analyze  Smith's claims as            "prudential."   I, however, am convinced  that Smith produced            direct evidence of  intentional discrimination  and that  the            district court  was  obligated to  fully analyze  plaintiff's            case under the framework of Price  Waterhouse v. Hopkins, 490                                        ____________________________            U.S. 228  (1989).   Additionally, I think  that the  majority            mischaracterizes   the   law   relevant  to   the   causation            requirement  under Title VII and Morse's position-elimination            defense.   Its  opinion  could erroneously  be  viewed as  an            invitation to use that defense as a cover  for discrimination            against women who take or plan to take maternity leave.             I.  The District Court's Analytical Process              I.  The District Court's Analytical Process                       The basic  facts are undisputed.   My first concern            arises  from the  district  court's  abbreviated analysis  of            plaintiff's  claim.   The Supreme  Court has  established two            analytical frameworks that courts  reviewing Title VII claims            must  follow.    Where  the evidence  produced  at  trial  is                                         -35-                                          35            "direct,"  the  Price Waterhouse  framework  applies.13   See                            ________________                          ___            Fields v. Clark Univ.,  966 F.2d 49, 51-52 (1st.  Cir. 1992),            _____________________            cert.  denied,  113  S.Ct.  976  (1993);  Cumpiano  v.  Banco            _____  ______                             ___________________            Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Jackson v.            ______________                                     __________            Harvard Univ.,  900 F.2d 464,  467 (1st Cir.),  cert. denied,            _____________                                   ____  ______            498 U.S. 848 (1990).                        If the  evidence of  discrimination is  indirect or            circumstantial,  the  burden-shifting framework  of McDonnell                                                                _________            Douglas  Corp. v. Green, 411  U.S. 792 (1973),  governs.  See            _______________________                                   ___            McDonnell Douglas Corp. v. Green, 411  U.S. 792 (1973); Texas            ________________________________                        _____            Dep't of Community  Affairs v. Burdine, 450 U.S.  248 (1981);            ______________________________________            St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742 (1993).  These            ______________________________            basic  rules  have  been  followed,  as  they  must,  by this            Circuit.  See, e.g.,  Cumpiano, 902 F.2d at 152; Jackson, 900                      ___  ____   ________                   _______            F.2d at   467; Chamberlin v.  101 Realty, 915  F.2d 777,  782                           _________________________            n.7. (1st Cir. 1990).                        Yet,  the   district   court  found   that   gender            discrimination played  no part  in the decision  to terminate            the  plaintiff's employment without determining whether there            was direct evidence under Price Waterhouse or even mentioning                                      ________________                                            ____________________            13.  The  plurality  opinion  in Price  Waterhouse  does  not                                             _________________            itself  require  direct  evidence  of  discrimination.    The            reference to direct  evidence appears  in Justice  O'Connor's            concurrence in that  case.   See, e.g., 490  U.S. at  270-74.                                         ___  ____            This  court first adopted  Justice O'Connor's conclusion that            direct evidence is required in mixed-motives cases in Jackson                                                                  _______            v. Harvard Univ., 900 F.2d 464 (1st Cir. 1990), cert. denied,            ________________                                _____ ______            498 U.S. 848 (1990).                                         -36-                                          36            McDonnell Douglas.   See Jackson,  900 F.2d  at 467  (holding            _________________    ___ _______            that  a  finding of  direct  evidence  renders the  McDonnell                                                                _________            Douglas framework inapplicable).  The majority compounds this            _______            analytical omission  by praising  the district court  for its            "directness"   and   for   having   "largely   bypassed   any            differential    direct    evidence/circumstantial    evidence            tamisage."   A  district court's  decision to  circumvent the            analytical  processes  Supreme  Court  and  circuit precedent            require should be criticized, not praised.                        This is particularly true where Title VII cases are            concerned.   The discrimination  that  plaintiffs like  Kathy            Smith face in the workplace is frequently as subtle  as it is            invidious.   It is in recognition of this hard truth that the            Supreme   Court  established  an   analytical  process  which            district courts, in my opinion, are required to follow.  See,                                                                     ___            e.g.,  McDonnell   Douglas,  411  U.S.  at   801  ("[I]n  the            ____   ___________________            implementation  of [employment]  decisions, it  is abundantly            clear  that Title  VII  tolerates no  .  . .  discrimination,            subtle or  otherwise."); see also Price  Waterhouse, 490 U.S.                                     ___ ____ _________________            at 271.   The Court's jurisprudence stands for  the principle            that  the unlawfulness  of the  employment actions  typically            challenged  in  Title VII  cases  is best  exposed  through a            process of inquiry.  See, e.g., Burdine, 450 U.S.  at 255 n.8            _______              ___  ____  _______            ("In a Title VII case, the  allocation of burdens and the . .            . prima facie case [requirement] [are] intended progressively                                         -37-                                          37            to sharpen the inquiry  into the elusive factual  question of            intentional  discrimination.").    Because  I  stand by  that            principle, I would ordinarily suggest a remand in a case such            as this.                      I have come to the conclusion, however, that remand            would not be  meaningful in this  case.   This does not  mean            that  I  agree with  the  district court's  finding  that the            evidence produced by Smith  was not compelling.  I  concur in            the  result because I am  bound by Supreme  Court and circuit            precedent.   And in this area, that precedent, unfairly in my            opinion, imposes too  heavy a burden on plaintiffs  trying to            prove the  ultimate issue  in discrimination cases:  that the            employer intentionally discriminated against her on the basis            of a Title  VII-protected trait.   I believe  that Smith  has            produced  enough evidence  to meet  her initial  burden under            Price  Waterhouse or  McDonnell  Douglas, but  agree that  it            _________________     __________________            would have been plausible for  a factfinder to conclude  that            Morse   proved   its   position-elimination  defense   by   a            preponderance  of the  evidence or,  alternatively,  that the            facts   established  were   insufficient  to   show  pretext.            Although  it did so without adhering to the process Title VII            requires, the  district court  decided the ultimate  issue in            the case and, although I disagree with it, I  cannot say that            decision was clearly erroneous.                                           -38-                                          38            II.  Direct Evidence Under Price Waterhouse            II.  Direct Evidence Under Price Waterhouse                                       ________________                      In  light  of  my  concurrence  in  the  majority's            ultimate  holding   on  Smith's  Title   VII  claim,   issues            pertaining to the  nature of the  evidence Smith produced  at            trial are, admittedly, moot.  Nevertheless, I want to explain            my belief that Smith produced direct evidence and  that Price                                                                    _____            Waterhouse controls  this case.   This  is important for  two            __________            reasons.    First,   the  availability  of  direct   evidence            determines  whether a  case  should be  analyzed under  Price                                                                    _____            Waterhouse or McDonnell Douglas.  Direct evidence renders the            __________    _________________            McDonnell  Douglas framework inapposite and imposes a heavier            __________________            burden  of proof on the employer.   Fuller v. Phipps, 67 F.3d                                                ________________            1137, 1141 (4th Cir. 1995).                      Second,  the determination of  whether the evidence            produced at trial is direct, though cast in procedural terms,            affects  the substantive  outcome in  Title VII  cases.   See                                                                      ___            Deborah  C. Malamud,  The  Last Minuet:  Disparate  Treatment                                  _______________________________________            After Hicks,  93 Mich. L.  Rev. 2229, 2229  (1995)("Title VII            ___________            jurisprudence  cloaks substance  in  the  'curious  garb'  of            procedure.").   This observation is of less import in Smith's            case because, at the  time the events giving rise  to Smith's            suit  occurred, the  law provided that  an employer  shown to            have unlawfully discriminated could avoid Title VII liability            by  demonstrating by  a  preponderance of  evidence that  the            adverse employment decision  would have been the same even if                                         -39-                                          39            discrimination  had played no role.  Lam v. Univ. of Hawai'i,                                                 _______________________            40  F.3d  1551, 1564-65  (9th Cir.  1994).   In  other words,            direct  evidence of  discrimination,  without more,  was  not            enough to impose liability on Morse.  Id.                                                    ___                      Under today's applicable law, however,  a plaintiff            producing  direct  evidence  of  discrimination  under  Price                                                                    _____            Waterhouse  may have a Title VII remedy.   Id. at 1565 n. 24.            __________                                 ___            The Civil Rights Act of  1991 "modified the Price  Waterhouse                                                        _________________            scheme"  and made "mixed-motives  treatment more favorable to            plaintiffs."  Fuller, 67  F.3d at 1142; see Civil  Rights Act                          ______                    ___            of  1991,  Pub.  L. 102-166,     107,  105  Stat. 1071,  1073            (1991)(codified  at 42 U.S.C.   2000e-2).  Section 107 of the            Act provides that Title VII is violated whenever an  employer            takes sex  or pregnancy  into account, regardless  of whether            other  considerations  independently   explain  the   adverse            employment decision.   Id.; see 42  U.S.C.   2000e-2(m)("[A]n                                   ___  ___            unlawful   employment  practice   is  established   when  the            complaining  party demonstrates  that race,  color, religion,            sex,  or  national origin  was  a motivating  factor  for any            employment practice, even though other factors also motivated            the practice.").  Prevailing mixed-motives plaintiffs, at the            very least,  are now  entitled to declaratory  and injunctive            relief and attorney's fees.  See Kerr-Selgas v. Am. Airlines,                                         ___ ___________________________            69  F.3d 1205, 1210 (1st Cir. 1995)(citing 42 U.S.C.   2000e-            5(g)(2)(B))(where  an employer in a mixed-motives case proves                                         -40-                                          40            that it would  have made  the same  decision, the  prevailing            plaintiff is entitled to attorney's fees, and declaratory and            injunctive relief, but not  damages or reinstatement).  Thus,            what  constitutes direct  evidence  is a  critical issue  for            Title VII plaintiffs.                      The majority makes  repeated references to "smoking            gun" evidence.  Using  this term only obscures the  fact that            this  Circuit  has yet  to  clearly  define what  constitutes            direct evidence of gender discrimination.  On prior occasions            we have held  that "[d]irect evidence  is evidence which,  in            and  of itself, shows  a discriminatory animus."   See, e.g.,                                                               ___  ____            Jackson,  900 F.2d at 467.   But, this  reasoning is circular            _______            and does  not further  understanding  of the  term.   Justice            O'Connor,  in her  concurring  opinion  in Price  Waterhouse,                                                       _________________            defined  the term  in  the negative,  explaining that  direct            evidence   "exclude[s]  'stray  remarks  in  the  workplace,'            'statements   by   nondecisionmakers',   or  'statements   by            decisionmakers unrelated to  the decisional process itself.'"            Price Waterhouse, 490 U.S. at 277 (O'Connor concurring).              ________________                      I contend that the evidence Smith produced at trial            was direct and, therefore,  warranted full application of the            Price Waterhouse  framework.   The evidence shows  that Smith            ________________            was pregnant,  and   requested and received  unpaid maternity            leave.   After being on  leave several weeks,  Smith notified            Morse's general  manager, Guimond, that she  wanted to return                                         -41-                                          41            to  work  on  May 15,  1989,  a  week  earlier than  planned.            Guimond  approved  the  earlier start time  and assured Smith            that her  job was secure.   She also asked Smith  whether she            intended  to have  additional children; Smith  indicated that            she did.                       On  May 2,  1989, the  day after  this conversation            occurred,  Guimond also  questioned Vendasi,  Smith's sister,            about Smith's future  childbearing plans.   Smith  confronted            Guimond  about this behavior and the rumor that she would not            be returning to  work because  she had decided  to stay  home            with her child.  Guimond denied any knowledge about the rumor            and reiterated that Smith's job was secure; she repeated this            guarantee two days later.   Despite these assurances, Guimond            terminated Smith on May  11, 1989, one week after  their last            conversation and four days before Smith was slated  to return            to work.   Guimond requested permission  to tell people  that            Smith  failed to return to  work because she  decided to stay            home to care for her child, but Smith refused to give it.                        There  is  precedent holding  that  statements like            those  Guimond made  to Smith  and Vendasi  constitute direct            evidence.   For  example, in  the Eighth  Circuit, statements            made by an employer can be direct evidence of discrimination,            if  made during  a key  decisional process.   In  Beshears v.                                                              ___________            Asbill, 930 F.2d 1348,  1354 (8th Cir. 1991), the  court held            ______            that  an  employer's oral  statement,  "older employees  have                                         -42-                                          42            problems adapting  to changed  and new policies,"  was direct            evidence of age discrimination.  930 F.2d at 1354.  Two years            later,  the court  expanded its  Beshears holding  to include                                             ________            written statements.   Radabaugh v. Zip Feed  Mills, Inc., 997                                  __________________________________            F.2d  444,   449-50  (8th  Cir.  1993),   held  that  written            statements included in corporate planning documents were also            direct evidence of discrimination.                         Other  circuits  have   included  statements   made            outside of the decisional process in the definition of direct            evidence.    In 1994,  the  Seventh Circuit  held  that post-            discharge   statements  made  by  a  supervisor  were  direct            evidence of age bias, even though they were not reflective of            an  express  intent to  discriminate.   See  Robinson  v. PPG                                                    ___  ________________            Indus., Inc., 23 F.3d 1159, 1165 (7th Cir. 1994).  Similarly,            ____________            the  Eleventh Circuit  has  held that  statements made  by an            employer   to   third   parties   are   direct  evidence   of            discriminatory animus.   In  EEOC v. Beverage  Canners, Inc.,                                         _______________________________            897  F.2d 1067, 1070 (11th  Cir. 1990), the  court found that            racially biased statements made by a supervisor to workers in            his plant were direct evidence of racial animus and a hostile            environment under Title VII.                        Guimond's statements to both Smith and Vendasi fall            well within the definition  of direct evidence established by            cases such  as Beshears and  Beverage Canners.   Guimond  was                           ________      ________________            solely  responsible  for Morse's  personnel  decisions.   Her                                         -43-                                          43            questions about Smith's childbearing plans were neither stray            nor  random and  evinced  a concern  about future  pregnancy.            Additionally,  Guimond began  asking questions  about Smith's            childbearing  plans   during  what  she  admits   was  a  key            decisional period.   Finally, the facts show  that the timing            of  the decision  to  terminate Smith  was  suspicious.   Cf.                                                                      ___            Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994);            __________________________            Josey v.  Hollingsworth  Corp., 996  F.2d 632,  639 (3d  Cir.            ______________________________            1993).  Within two  weeks of learning about Smith's  plans to            have more children, Guimond  decided to terminate Smith, even            though  she had  repeatedly assured  Smith  that her  job was            secure.                      This evidence of discrimination is direct and clear            even if it does not reach the status of a  smoking gun.  That            some inferences must be drawn from what was said and  done to            reach   this  conclusion  does   not  make  Smith's  evidence            indirect.   As  the Seventh  Circuit recognized  in its  1991            decision, Visser  v. Packer Eng'g Assoc., Inc., 924 F.2d 655,                      ____________________________________            659 (7th Cir. 1991), "all knowledge is inferential."  Because            judges are not mind-readers and cannot reach into the mind of            a Title VII defendant,  a certain amount of inference-drawing            is necessary in any  case, whether the evidence is  direct or            indirect.  The ultimate issue in disparate treatment cases  -            - whether the employer intended to discriminate --  cannot be            established  by  purely  direct  evidence.   See  Charles  A.                                                         ___                                         -44-                                          44            Sullivan,  Accounting For Price Waterhouse: Proving Disparate                       __________________________________________________            Treatment Under  Title  VII, 56  Brook.  L. Rev.  1107,  1138            ___________________________            (1991)("'[D]irect evidence' of intent cannot exist, at  least            in the sense of evidence which, if believed, would  establish            the  ultimate issue  of intent  to discriminate.");  Tyler v.                                                                 ________            Bethlehem  Steel Corp.,  958  F.2d 1176,  1183-84 (2d  Cir.),            ______________________            cert. denied, 113 S.Ct. 82 (1992).            _____ ______                      Rather   than   adhering   to   the   colorful  but            meaningless requirement of a  smoking gun, I think we  should            adopt  a  definition of  direct evidence  in Title  VII cases            which satisfies  the  minimum negative  requirements  Justice            O'Connor  set out  in Price  Waterhouse:   "exclude[s] 'stray                                  _________________            remarks in the workplace,' 'statements by nondecisionmakers',            or 'statements by decisionmakers  unrelated to the decisional            process  itself.'"    Price   Waterhouse,  490  U.S.  at  277                                  __________________            (O'Connor  concurring).  In accord  with the Civil Rights Act            of 1991, this definition  preserves the mixed-motives case as            a  viable  option  in  Title  VII  suits.    Cf.  Michael  A.                                                         ___            Zubrensky,  Despite  The  Smoke,  There  Is  No  Gun:  Direct                        _________________________________________________            Evidence  Requirements In Mixed-Motives  Employment Law After            _____________________________________________________________            Price  Waterhouse  v. Hopkins,  46  Stan.  L. Rev.  959,  969            _____________________________            (1994).   It lowers the high hurdle of "smoking gun" evidence            to  reasonable  limits  so  that  plaintiffs   in  employment            discrimination cases  can receive all  the protections  Title            VII was intended to give.                                            -45-                                          45                      Even if my  definition of  Price Waterhouse  direct                                                 ________________            evidence  is rejected, however, it is irrefutable that  Smith            made out a prima facie case of discrimination under McDonnell                                                                _________            Douglas: that after being directly so asked, she expressed an            _______            intention  to  become  pregnant   in  the  future;  that  her            performance at work was more than satisfactory; that  she was            terminated  after  repeated  assurances   that  her  job  was            "secure;"  and that her  duties continued to  be performed by            comparably qualified individuals.   See Cumpiano, 902 F.2d at                                                ___ ________            153;  Lipsett v. Univ. of  P.R., 864 F.2d  881, 899 (1st Cir.                  _________________________            1988).                        Smith's  reiteration  of   these  facts  on  appeal            complied  with Supreme  Court and  circuit precedent.   Smith            proved  that she was fired  even though she  was an excellent            manager  and that  her  duties continued  to be  performed by            other  employees.  In my view, this is all McDonnell Douglas'                                                       _________________            prima  facie  case  burden  requires.    See, e.g.,  Byrd  v.                                                     ___  ____   ________            Ronayne, 61  F.3d 1026, 1031 (1st  Cir. 1995)("[T]he required            _______            prima  facie showing  is not  especially burdensome.")(citing            Woodman  v. Haemonetics Corp.,  51 F.3d 1087,  1091 (1st Cir.            _____________________________            1995)).    The district  court  should  have shifted  to  the            McDonnell Douglas framework  before finding Smith's  evidence            _________________            deficient.            III.  Causation Under Title VII            III.  Causation Under Title VII                                         -46-                                          46                      In   addressing  the   question  of   causation  in            disparate  treatment  cases,  the  majority  stresses that  a            "coincidence"  between  pregnancy  leave  and  an  employment            decision does  not prove intentional discrimination.   It may            not in  all cases, but  it arguably  did in this  case.   The            majority's discussion of causation completely disregards this            possibility.  Its blanket  contention that pregnancy does not            give  plaintiffs  "total  immunity"  from  adverse employment            actions  ignores the  extent to  which maternity  leave gives            employers  an   opportunity  to  discharge   women  who  take            maternity  leave or who express  an intention to  have one or            more children.                      The evidence arguably shows that the position Smith            held  would  have  been  eliminated even  if  Morse  had  not            considered her  pregnancy or intention to  become pregnant in            the future.    It  does not  necessarily  follow  from  this,            however, that  Smith  would have  been  fired had  Morse  not            considered  her  maternity  leave  or  desire  to  have  more            children.  In their conversations before Smith took maternity            leave,   Bond,  Morse's  president,   and  Guimond  discussed            eliminating the  materials manager  position, but  not Smith.            The record shows both that Bond initially intended to  retain            Smith because  of her excellent  skills and that  he admitted            that Smith would still be employed at Morse had she not taken            maternity leave.                                         -47-                                          47                      Had Smith  refused to  disclose or even  lied about            her intention to have more children, she would probably still            have a  job at Morse.   The facts show that  Guimond was very            concerned  about the  disruption Smith's absence  would cause            and suggest that  she would  have taken steps  to avoid  such            disruption in  the future.   The majority  completely ignores            the probability  that Smith's  expressed desire to  have more            children was the motivating factor in her  discharge and that            her temporary absence on maternity leave gave her employer an            opportunity to find  a reason  to discharge her.   I  contend            that the evidence Smith  produced was sufficient to establish            intent and causation.                      The two  examples the majority gives  to illustrate            the need  for a causal  connection between pregnancy  and the            adverse employment  action challenged in  disparate treatment            cases  are both  inapposite and  unfair.   Footnote 9  of the            court's opinion analogizes Smith's dismissal during maternity            leave  to an  employee who  is discharged while  on religious            leave  because heroin is discovered in her  desk.  It is true            that  in  both  cases  the  employee's  absence  enabled  the            employer to make  the discovery resulting in  discharge.  But            here the analogy breaks down.                        The  possession of heroin  is illegal; its presence            in the employee's desk was  a fact that could not  be refuted            (although an explanation  might be made).   The employer  did                                         -48-                                          48            not  have to make any determination  as to the quality of the            employee's  work or her capabilities.   She had  to be fired.            In the  case of maternity  leave, however, an  employer would            have  to  make  a  judgment  as  to  whether  eliminating the            position made  good business  sense.  Considerations  such as            the  employee's  prior  performance and  future  childbearing            plans would  be part  of the  employer's position-elimination            decision.   At least in part, that decision would be "because            of" pregnancy, present and future.   It could not be made  in            the vacuum the majority's hypothetical presupposes.                      Similarly,  the cases the majority cites to support            its  view obscure  the causation  issue and  unfairly compare            Smith  to employees  who are placed  on probation  because of            poor  attitudes or  who are  discharged because  of unexcused            absences.  Cases such as Troupe  v. May Dep't  Stores Co., 20                                     ________________________________            F.3d  734 (7th  Cir.  1994), Crnokrak  v. Evangelical  Health                                         ________________________________            Systems Corp., 819 F. Supp. 737 (N.D. Ill. 1993), and Johnson            _____________                                         _______            v. Allyn & Bacon, Inc., 731 F.2d 64 (1st Cir.), cert. denied,            ______________________                          _____ ______            469  U.S.  1018  (1984),  involved  discharge,  not  position            elimination.   In Troupe, the employee's  pre-maternity leave                              ______            dismissal  was  motivated  by   her  tardiness  and  frequent            absences.   Crnokrak involved a plaintiff  who was terminated                        ________            after  returning from maternity  leave later  than originally            expected, whereas  Johnson dealt with an  employee who lacked                               _______            supervisory skills and  who was fired  after being placed  on                                         -49-                                          49            probation because of a poor work attitude.  The one position-            elimination case  the  majority cites,  Pearlstein v.  Staten                                                    _____________________            Island  Univ. Hosp.,  886 F.  Supp. 260  (E.D.N.Y. 1995),  is            ___________________            similarly  inapposite; it  involved adoption,  not pregnancy,            and  an  employee  who gave  short  notice  of  her need  for            maternity  leave.  And in that case, the evidence showed that            the plaintiff  was accidentally  overpaid, that  her employer            was  experiencing  financial difficulties,  and that  she had            received no assurances about the security of her job.                           These cases  do not directly  address the causation            issues  presented  here.    In contrast  to  Pearlstein,  the                                                         __________            evidence  in this  case  shows that  Smith received  repeated            assurances about her job, that the raise she received  before            taking  maternity leave  was  intentional,  and that  Smith's            termination was not due  to economic hardship.  Additionally,            the evidence does  not show that Smith  was fired for  a poor            attitude,  that she had ever  been on probation,  or that she            lacked  supervisory skills.    The fact  that Smith  received            regular promotions and  that few  people at  the Morse  plant            exceeded  her level  of  education or  experience belies  any            suggestion  that Smith's  performance and  skills were  below            par.                        Finally,     Smith  received   permission  for  her            maternity leave,  shortened the  duration of that  leave, and            was fired before  she could  return to work,  not before  she                                         -50-                                          50            left.   Smith's maternity leave, thus, did not pose a problem            for  Morse  in  the  same  way  that  the  Troupe  employee's                                                       ______            unexpected illness or the Crnokrak plaintiff's extended leave                                      ________            did  for their employers.  The crux of Morse's defense, after            all,  is  that Smith  was fired  because  her absence  had no            effect whatsoever on Morse's operations.                       My point  is simple:   just  as pregnancy does  not            fully  shield  plaintiffs  from  adverse  employment actions,            business judgment  or  necessity does  not  totally  immunize            employers  from  Title  VII's  sanctions.    The   majority's            discussion of causation understates  this important point.  I            believe  that, more  often  than not,  a correlation  between            pregnancy  and  position elimination  during  maternity leave            will exist.   It is naive to think that an employer would not            take an employee's pregnancy  or intention to become pregnant            in  the  future  into  consideration during  the  process  of            determining   whether  the  employee's   position  should  be            eliminated.14            IV.  The Position-Elimination Defense            IV.  The Position-Elimination Defense                                            ____________________            14.  I am, of course, aware that the Family and Medical Leave            Act  of 1993, P.L. 103-3,  107 Stat. 6  (1993)(codified at 29            U.S.C.     2601-2654) addresses  a number  of the  concerns I            raise.  That Act,  however, does not apply in  pre-1993 cases            and does  not, moreover, correct  the problems I  perceive in            the majority  opinion's analysis and  posture towards Smith's            discrimination claim.                                           -51-                                          51                      The majority upholds  the district court's  finding            that  Morse made  out a  position-elimination defense  on two            grounds: that  Morse reduced its  management-level staff  and            that  Smith's  duties  were  shifted to  employees  who  were            already on the Morse payroll.  Though I concur in the holding            that  Morse  arguably proved  the  facts  necessary to  rebut            Smith's gender discrimination claim, I think the scope of the            position-elimination defense is considerably more narrow than            the majority's  interpretation of the facts suggests.  That a            company is  able to manage in  the absence of one  of its key            employees  will not  always be  proof of  a nondiscriminatory            purpose, contrary to what the  court's opinion implies.  Were            that so,  every woman who took maternity leave would do so at            risk of losing her job.                      Moreover,  the conclusion  that  Morse reduced  its                                                             _______            management staff is not supported by the evidence.  Morse did            not, as the court's exposition of the  facts suggests, reduce            its  management  team  from seven  to  three.    The majority            reached this conclusion by  eliminating Bond and Guimond from            its final count, even though they each donned  one of the two            hats formerly  worn by  Darryl Robinson, Damar's  founder and            chief officer.  It also erroneously included Smith in Damar's            original  management team,  even though  she did  not have  a            management title  at that time.  And it failed to include the            two  assistant manager  positions  in its  final count,  even                                         -52-                                          52            though  the  individuals   holding  those   slots  did   have            management  titles.   If  the individuals  excluded from  the            majority's  calculations  are  added,  the  size  of  Morse's            management  team was  the same at  the end  as it  was in the            beginning -- seven.15                      The facts demonstrate that Morse mainly reorganized                                                              ___________            its  management   team.     It  consolidated   positions  and            eliminated titles,  but  did not  decrease  the size  of  its            management.   Because  it would  have been plausible  for the            district court  to interpret this  reorganization as position            elimination,  I  concur in  the court's  holding.   I  do not            agree,  however,  that  reorganizations  of  the  sort  Morse            carried  out will  be enough to  rebut claims  of intentional            discrimination in every  case.  For me,  whether the district            court was clearly erroneous in its findings on this issue was            a very close call.                      The court's  holding that Smith  was not  replaced,            that  her  duties  were  merely transferred  to  other  Morse                                            ____________________            15.  Post-acquisition    of   Damar,    Morse's   upper-level            management team  included the  following seven people:   Bond            (president); Guimond (general manager);  Paradis (machining);            Shevenell  (sheet  metal);  Bickford   (engineering);  Seeger            (sales);  and Smith (materials).   I do not  include Lane and            Hickman  in  this  number  because  they  were  fired  almost            immediately after Damar's acquisition, partially due to their            poor performance.  After Smith was fired, Morse's upper-level            management  team  still  included  seven  individuals:   Bond            (president); Guimond (general manager); Paradis (operations);            Shevenell (manufacturing); Seeger (sales); Lapanne (assistant            manager); and Hoffman (assistant manager).                                         -53-                                          53            employees,  is based on our  holding in LeBlanc  v. Great Am.                                                    _____________________            Ins. Co., 6 F.3d 836 (1st Cir. 1993), cert. denied, 114 S.Ct.            ________                              _____ ______            1398  (1994).    LeBlanc  holds  that  a position-elimination                             _______            defense is not  defeated by  the claim that  an employee  was            only "replaced"  because  "another employee [was] assigned to            perform the  plaintiff's duties in addition  to other duties,            or  [because]  the  work   [was]  redistributed  among  other            existing employees already performing  related work."  6 F.3d            at 846; see  also Barnes  v. GenCorp., Inc.,  896 F.2d  1457,                    ___  ____ _________________________            1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990).                               _____ ______                      To  the extent  that Morse's defense  comports with            Leblanc at all,  it does so on the basis  of the first prong,            _______            not the second.   In analogizing Morse's first reorganization            to the  reorganization which  occurred after  Smith's firing,            the  majority  opinion gives  the  impression  that LeBlanc's                                                                _______            second   prong,  the  "related   work"  requirement,  can  be            satisfied  by demonstrating  that  a plaintiff's  duties were            simply transferred to someone working in the same company.  I            disagree.   I contend that LeBlanc's related-work requirement                                       _______            cannot  be met unless the employer proves that it shifted the            plaintiff's duties  to employees who were  already performing            some of the plaintiff's duties or, at least, duties that were            very similar.  This did not occur in this case.                        In the first reorganization, Smith was promoted  to            materials manager and  asked to officially assume some of the                                         -54-                                          54            duties  she  had  already  been  performing  because  of  the            inadequacies of other  managers.  Smith at that  time assumed            duties which,  in my opinion, constituted  related work under            LeBlanc.   In  contrast,  the second  reorganization did  not            _______            shift Smith's  responsibilities to  managers who had  already            been performing  her  job.    After Smith  was  fired,  those            managers  took  on  what  were essentially  new  duties;  the            majority's own contention that Paradis and Shevenell were far            more experienced than Smith and responsible for the technical            aspects  of  Morse's  business bears  this  out.   That  they            performed those duties for some period before Smith was fired            was  only   because  Smith  was  on  maternity  leave.    The            nonpregnancy-based    explanation   for    their   additional            responsibilities did not kick in until after Smith's firing.                      If Title VII's protections  against pregnancy-based            discrimination are to  have any force, the relevant period of            inquiry for determining whether the duties formerly performed            by  a plaintiff  were assumed  by someone  already performing            related work under LeBlanc  should not be during  a maternity                               _______            leave.   The relevant period  of inquiry must  be before that            leave  began.   Using the  time period when  the woman  is on            maternity leave creates a perverse  incentive to discriminate            against  pregnant women by firing  them when they  are not at            their  jobs and  when  it will  almost  always be  true  that            someone  else is performing their  duties.  In  this case, if                                         -55-                                          55            Smith had not become pregnant and  taken maternity leave, she            would still be a valued Morse employee.            V.  Conclusion            V.  Conclusion                      William James once said that an idea's "validity is            the process  of its valid-ation."   Accordingly, I  concur in            the  outcome  reached in  this  case,  but  not  the  process            employed,  because  I disagree  with  the  view of  pregnancy            discrimination  cases taken by the majority.  I think it only            plausible that gender was not the  motivation for the adverse            employment action  taken against  Smith, not "true."   And  I            agree  only that  position elimination  can be  a defense  in            Title VII cases, not that it will be a defense in every case.            For  me, the  process employed  in reaching  a result,  which            includes the hypotheticals drawn and examples given, matters.                                         -56-                                          56
