

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 94-1931

                         UDO U. UDO,

                    Plaintiff, Appellant,

                              v.

              HENRY TOMES, COMMISSIONER FOR THE
                 DEPARTMENT OF MENTAL HEALTH,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Joseph L. Tauro, U.S. District Judge]                                                               

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                Aldrich, Senior Circuit Judge,                                                         
                  and Stahl, Circuit Judge.                                                      

                                         

John A. Birknes, Jr., for appellant.                                
Deborah S. Steenland, Assistant Attorney General, with whom  Scott                                                                              
Harshbarger, Attorney General, was on brief for appellee.                   

                                         

                        April 28, 1995
                                         

          STAHL,  Circuit Judge.  Plaintiff-appellant Dr. Udo                      STAHL,  Circuit Judge.                                           

U.  Udo challenges  his  layoff from  Taunton State  Hospital

("Taunton"),   which  is   operated   by  the   Massachusetts

Department  of Mental  Health ("DMH").   Udo claims  that DMH

laid him  off because of  age discrimination in  violation of

the Age Discrimination in  Employment Act ("ADEA"), 29 U.S.C.

   626(b), and race discrimination  in violation of Title VII

of the  Civil Rights Act of  1964, 42 U.S.C.    2000(e).  Udo

also   claims  that   defendant-appellee  Henry   Tomes,  the

Commissioner of DMH, in  his individual capacity deprived him

of his  civil rights in violation  of 42 U.S.C.    1983.  The

district court granted summary judgment to defendant, and Udo

appeals.  We affirm.

                              I.                                          I.                                            

                          Background                                      Background                                                

          In   October   1990,   the    Massachusetts   state

legislature directed  all state agencies,  including DMH,  to

implement cost-saving measures to address underfunding in the

Fiscal  Year  1991  budget.   DMH  responded  to this  fiscal

emergency  with  a  plan   that  included  significant  staff

reductions.   In connection with its  state-wide reduction in

force,  DMH  eliminated the  two  Physician  II positions  at

Taunton, one of which Udo held.  At that time, DMH employed a

total of nineteen Physician IIs in its various hospitals.  Of

those, Udo had the most seniority, having been employed since

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1975.   Udo was also  the only Black and,  at sixty-five, the

oldest of the nineteen Physician IIs employed by DMH.

          Tomes  notified Udo  by  letter dated  October  12,

1990, that his position  at Taunton had been eliminated.   In

the letter, in accordance  with procedures under which senior

employees  whose positions  are  eliminated  can "bump"  less

senior employees, Tomes offered  Udo certain bumping options.

Tomes  also  notified  Udo  that  he  could request  an  exit

interview  with the  DMH Equal  Employment/Affirmative Action

Office to determine if any affirmative action rights had been

abridged.    Although Udo  requested  such  an interview,  no

interview was ever conducted.   Udo elected to bump  into the

Physician II position at Metropolitan State Hospital, and, on

October  26, 1990, Tomes sent Udo a letter indicating that he

had been awarded that position.

          After awarding  Udo  the Physician  II position  at

Metropolitan  State Hospital,  DMH  became aware  that, as  a

result  of  a   disciplinary  action  for   malpractice,  the

Massachusetts  Board of  Registration  in  Medicine  had,  on

October  17,  1990,  restricted  Udo's  license  to  practice

medicine  to  Taunton.    Consequently,  in  a  letter  dated

November 6, 1990, Tomes informed Udo, "Since your election to

practice medicine at Metropolitan State Hospital  is contrary

to  this   disciplinary  action,  you   are  hereby  laid-off

effective November 17, 1990."

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          Udo,   a   member  of   the   Massachusetts  Nurses

Association  ("MNA"),  challenged  the  elimination   of  his

position and his layoff through the grievance process set out

in  the union's collective bargaining agreement, arguing that

those  actions violated  the collective  bargaining agreement

and  that they were discriminatory  in terms of  both age and

race.1    The arbitrator  found  that  Udo's layoff  violated

seniority  provisions of the  collective bargaining agreement

and held that the  "decision to lay off [Udo]  was arbitrary,

capricious  and   unreasonable  and  in   violation  of   the

contract."2     The  arbitrator   did   not  consider   Udo's

discrimination claims.

          In  April 1992,  before  his  arbitration case  was

concluded,  Udo became  aware that  Taunton had  advertised a

Physician  II position with a posting date of April 16, 1992,

and a closing date  of April 24, 1992.   On May 8, 1992,  the

MNA  notified Taunton that Udo was eligible to be recalled to

that position through the collective bargaining agreement, as

                                                    

1.  The  MNA also  pursued an  action with  the Massachusetts
Labor  Relations Commission against DMH on  behalf of all MNA
members who  had  been laid  off  or bumped  (including  Udo)
during   the  state-wide   reduction   in   force,  and   the
Massachusetts Labor  Relations Commission found  that DMH had
violated the collective bargaining agreement.

2.  The  arbitrator  rendered his  decision  on  December 20,
1992, giving  the parties ninety  days to reach  a settlement
regarding relief.  Because the parties  were unable to agree,
on  June  11,  1993,  the  arbitrator  ordered  that  Udo  be
reinstated to  his position  at Taunton and  that he  receive
partial back pay.

                             -4-                                          4

the  agreement provides  for recall  following layoff  at any

time within two years.   DMH responded that it  had rescinded

that  announcement  and  that  the  position  was  no  longer

available.   Udo later found  out that the  position had been

filled by an  "03" physician.  An  03 physician has  the same

duties  as a  Physician  II, but  does  not come  within  the

collective bargaining agreement.

          In addition to  challenging the elimination of  his

position and  his layoff  through his  union,  Udo filed  the

instant  action.    The  district  court  granted defendant's

motion for summary judgment, and Udo appeals.

                             II.                                         II.                                            

                          Discussion                                      Discussion                                                

A.  Standard of Review                                  

          As always,  we review  a district court's  grant of

summary judgment de novo and, like the district court, review                                    

the facts in the light most favorable to the nonmoving party.

See, e.g., Lareau v. Page, 39 F.3d 384, 387 (1st Cir.  1994).                                     

Summary   judgment  is   appropriate  when   "the  pleadings,

depositions,  answers to  interrogatories, and  admissions on

file, together with  the affidavits, if any,  show that there

is no  genuine issue  as to  any material  fact and  that the

moving  party is entitled to a  judgment as a matter of law."

Fed. R. Civ. P. 56(c).

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B.  Age and Race Discrimination                                           

          1.  The Legal Framework                                             

          In disparate-treatment cases,  plaintiffs bear  the

ultimate burden  of proving  that  they were  the victims  of

intentional discrimination.  St.  Mary's Honor Ctr. v. Hicks,                                                                        

113  S. Ct. 2742, 2747-48 (1993).  When plaintiffs are unable

to  offer direct  proof  of  their employers'  discriminatory

animus  --  as is  usually the  case and  was  so here  -- we

allocate the  burden of  producing evidence according  to the

now-familiar  three-step framework  set  forth  in  McDonnell                                                                         

Douglas  Corp. v. Green, 411  U.S. 792, 802-05  (1973).  See,                                                                        

e.g.,  Hicks,  113  S.  Ct. at  2746  (race  discrimination);                        

LeBlanc v.  Great Am.  Ins. Co.,  6 F.3d 836,  842 (1st  Cir.                                           

1993)  (age discrimination),  cert. denied,  114 S.  Ct. 1398                                                      

(1994).

          Under the McDonnell  Douglas framework,  plaintiffs                                                  

bear the initial burden of establishing a prima facie case of

discrimination.   McDonnell Douglas,  411 U.S.  at  802.   In                                               

reduction-in-force cases, the plaintiff establishes the prima

facie case by demonstrating that  he or she (1) was a  member

of a protected class, (2)  met the employer's legitimate job-

performance expectations, (3) was laid off, and (4) that  the

employer either did not treat  members of the protected class

neutrally or retained persons  not within the protected class

in the same position.  See LeBlanc, 6 F.3d at 842.                                              

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          Once the plaintiff establishes a  prima facie case,

a   presumption   arises   that   the   employer   unlawfully

discriminated against  the plaintiff.   Hicks, 113 S.  Ct. at                                                         

2747;  LeBlanc, 6 F.3d at 842.  This presumption "places upon                          

the defendant the burden of producing an explanation to rebut

the prima  facie  case  --  i.e., the  burden  of  `producing

evidence' that the adverse employment actions were taken `for

a legitimate, nondiscriminatory reason.'"   Hicks, 113 S. Ct.                                                             

at 2747 (quoting Texas Dept. of Community Affairs v. Burdine,                                                                        

450  U.S. 248, 254 (1981)).   While the  burden of production

shifts to the  defendant during this second step,  the burden

of persuasion remains on the plaintiff.  Hicks, 113 S. Ct. at                                                          

2747.

          If  the  defendant "articulate[s]  some legitimate,

nondiscriminatory  reason  for  the   plaintiff's  [layoff],"

McDonnell  Douglas, 411 U.S. at  802, then the presumption of                              

discrimination established  by  the plaintiff's  prima  facie

showing  "drops out of  the picture."   Hicks, 113 S.  Ct. at                                                         

2749.    The burden  of production  then  shifts back  to the

plaintiff, who  is  given an  opportunity  to show  that  the

defendant's stated reason for laying  off the plaintiff was a

pretext for discrimination.   See McDonnell Douglas, 411 U.S.                                                               

at   804.    "The   defendant's  `production'  (whatever  its

persuasive  effect)  having  been  made, the  trier  of  fact

proceeds to decide the  ultimate question:  whether plaintiff

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has  proven `that  the defendant  intentionally discriminated

against [him].'"  Hicks, 113 S. Ct. at 2749 (quoting Burdine,                                                                        

450  U.S. at 253) (alterations in Hicks); see also LeBlanc, 6                                                                      

F.3d  at 843  (applying Hicks  to age  discrimination cases).                                         

Thus,   once   the   employer   articulates   a   legitimate,

nondiscriminatory  reason for  laying off  the plaintiff,  to

avoid   summary  judgment,   the  plaintiff   must  introduce

sufficient  evidence to support  two findings:   (1) that the

employer's articulated reason for laying off the plaintiff is

a pretext, and  (2) that the  true reason is  discriminatory.

Smith v. Stratus  Computer, Inc.,  40 F.3d 11,  16 (1st  Cir.                                            

1994), petition for cert. filed,  63 U.S.L.W. 3644 (U.S. Feb.                                           

21, 1995) (No. 94-1416).  While the plaintiff may rely on the

same evidence  to prove both pretext  and discrimination, the

evidence must  be sufficient  for a reasonable  factfinder to

infer   that  the  employer's   decision  was   motivated  by

discriminatory animus.  Id.                                       

          2.  Application                                     

          We shall  assume, as  the district court  did, that

Udo  established  a  prima  facie case  under  the  McDonnell                                                                         

Douglas formulation for both age and race discrimination.  As                   

its  reason for laying Udo off, DMH points to the restriction

on Udo's medical license  that made it impossible for  him to

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bump  to  another hospital.3    This  reason satisfies  DMH's

burden of production  and shifts  the burden back  to Udo  to

prove  that   DMH's  proffered   reason  is  a   pretext  for

discrimination.

          Even assuming arguendo that DMH's immediate seizure                                            

on  the restriction on Udo's  license was a  pretext for some

other  reason,4  in order  to  survive a  motion  for summary

judgment,  Udo's evidence must also allow a jury to find that

DMH's  articulated reason was  a pretext  for discrimination.                                                                        

See Smith, 40 F.3d at 16 ("Title VII does not grant relief to                     

a plaintiff  who has  been discharged unfairly,  even by  the

                                                    

3.  The  exact language  of the  restriction placed  on Udo's
license is as follows:
          The  Respondent  [Udo] will  restrict his
          current practice of  medicine to  Taunton
          State Hospital and its affiliate programs
          where he currently practices, or to those                                                               
          hospitals  and  their affiliates  who are                                                               
          approved by  the  Board in  advance,  and                                                         
          such  practice will  be  monitored  by  a
          Board-approved  monitoring physician  who
          will report  to the  Board, on  a regular
          basis,  the   Respondent's  activity  and
          quality of patient care rendered by him.
(emphasis added).
          Although  the Board  imposed  this  restriction  on
Udo's medical  license on October  17, 1990, it  stemmed from
malpractice occurring before 1980 at St. Luke's Hospital.  At
Udo's request, on  November 28, 1990,  the Board changed  the
restriction to allow  Udo to practice at  other hospitals and
clinics under the jurisdiction of DMH.

4.  We note  that the  arbitrator found  Udo's  layoff to  be
"arbitrary, capricious  or unreasonable  and in violation  of
the  contract."  While  we, of course,  are not  bound by the
arbitrator's findings,  Alexander v. Gardner-Denver  Co., 415                                                                    
U.S.  36, 59-60  (1974), the  arbitrator's decision  could be
considered some evidence of pretext.

                             -9-                                          9

most   irrational   of  managers,   unless   the   facts  and

circumstances indicate  that  discriminatory animus  was  the

reason for the decision.").

          To  establish  that  he  was  the  victim  of  race

discrimination, Udo presents an  MNA document that shows that

the nineteen Physician IIs employed by DMH at the time he was

laid  off  comprised  eleven   Caucasians,  six  Asians,  one

Hispanic, and one Black  (Udo).  Based on this  document, Udo

maintains that  DMH retained all eleven  Caucasians, but that

it  laid off the only Black (Udo), the only Hispanic, and two

of the six  Asians.  DMH responds with the  affidavit of Jeff

McCue,  DMH's  Assistant  Commissioner for  Human  Resources.

According  to McCue,  DMH  eliminated only  two Physician  II

positions,  not four,  namely the  two positions  at Taunton.

McCue explains  that because neither  Udo nor Dr.  Pandya, an

Asian  who  held the  other  Taunton  Physician II  position,

exercised  their bumping  options, neither  of the  two least

senior  Physician IIs, who happened  to be a  Hispanic and an

Asian, were laid off.

          Udo also  argues that DMH's failure  to conduct his

requested  exit interview  to  determine whether  affirmative

action rights pertaining to him were being abridged evidences

DMH's  discriminatory  animus.    DMH  states  that  no  exit

interview  was   conducted  because  Udo   asked  Richard  C.

Haddocks, Jr.,  the Director  of Human Resources  at Taunton,

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for  an exit interview on October 18, 1990, but Haddocks took

a medical  leave of  absence beginning on  October 21,  1990,

prior to taking action  on Udo's request, and did  not return

to work until after Udo had been laid off.5

          As evidence of age  discrimination, Udo notes  that

in  June 1990,  Haddocks sent  him a  letter stating  that he

would  have to retire since  he turned sixty-five that month.

After  Udo  informed  him  that  he  was  mistaken  and  that

retirement  was  not  required  until  age seventy,  Haddocks

checked  further into the matter and informed Udo that he was

correct.  In his affidavit submitted with defendant's summary

judgment motion, Haddocks stated that he wrote the retirement

letter because he had received incorrect information from the

                                                    

5.  Udo also notes  that "the affirmative action plan  of DMH
specifically  provides that any layoff  action by DMH must be
reviewed by the EEO Administrator  before it becomes final to
determine  if  such  action  represents a  breakdown  in  the
affirmative action  program and therefore  calls for remedial
action."  DMH responds  that "[t]he EEO Administrator did  in
fact  review  the plan  for  staff  reductions prior  to  its
implementation."  Thus, DMH  claims that while Udo  failed to
receive his  exit interview, the EEO  Administrator had still
reviewed his layoff.  
          Udo points out,  however, that the most DMH did was
initially  review  the  reduction  in  force  "prior  to  its
implementation," but that this  included only the elimination
of Udo's Taunton  position and  not his actual  layoff.   Udo
seems  to cite this as evidence that "the layoff should never
[have]  become final," rather than as evidence of age or race
discrimination.   While  this evidence  may constitute  proof
that DMH violated the  collective bargaining agreement, we do
not think that it tends to prove that Udo was laid off as the
result of age or race discrimination.

                             -11-                                          11

Massachusetts State Board of  Retirement that Udo was subject

to mandatory retirement at age sixty-five.

          As evidence  of both age  and race  discrimination,

Udo  also points  to DMH's  behavior after  he applied  for a

Physician II position  at Taunton that was  advertised by DMH

in April 1992.  DMH allegedly responded to  Udo's application

by  stating  that  the  announcement and  position  had  been

rescinded, but then later hired an "03" contract physician to

fill the position.

          We  do  not  think  that, given  this  evidence,  a

rational  jury would be  able to find  that DMH discriminated

against  Udo because  of  his age  or  his  race.   That  DMH

eliminated two positions, which were occupied by a Black  and

an  Asian, does not show that DMH was improperly motivated by

age or race when it subsequently laid Udo off.   See Lawrence                                                                         

v. Northrop Corp., 980 F.2d 66, 74 n.13 (1st Cir. 1992) ("Nor                             

can the fact that the three oldest associate program managers

in  Organization  4000 were  targeted  for  layoff itself  be

viewed   as   giving   rise    to   an   inference   of   age

discrimination.").  Similarly, we have  trouble understanding

how  DMH's failure  to  conduct an  exit  interview prior  to

laying Udo  off shows that  the decision  to lay him  off was

discriminatory  in  motive.    Nor   do  we  think  that  the

retirement  letter Udo received shows age  animus on the part

of  DMH;   rather,  it   seems  merely   to  show  that   the

                             -12-                                          12

Massachusetts State Board  of Retirement  sent DMH  incorrect

information.  Cf. Mesnick v. General Elec. Co., 950 F.2d 816,                                                          

826 (1st Cir. 1991) ("the intentions of a third party may not

be attributed to an employer without some rational basis  for

attribution"), cert. denied, 112 S. Ct. 2965 (1992).                                       

          We focus in particular on the fact that Udo was not

recalled to his  position at  Taunton.  While  this tends  to

indicate  that DMH  did  not want  to  rehire him,  and  thus

supports the  inference that  the restriction on  his license

may  have been  a pretext,  it does not  by itself  provide a

basis for inferring age or race discrimination.  That DMH may

have violated the collective  bargaining agreement yet  again

when it  failed to recall Udo  does not indicate  that DMH is

thereby also liable under Title VII or the ADEA.

          Because Udo has  not presented evidence that  would

enable a rational jury to find  that he was laid off  because

of  age or race discrimination, we hold that DMH was entitled

to  summary judgment  on  Udo's age  and race  discrimination

claims.

C.  Section 1983                            

          Udo  also sued  Tomes in  his individual  capacity,

claiming that  Tomes violated  his civil rights  by depriving

him of  employment through  an unlawful  layoff based  on his

race, in violation of 42 U.S.C.    1983.  Because, as we held

above, Udo failed to raise a  triable issue as to whether his

                             -13-                                          13

layoff was motivated  by discriminatory intent, the  district

court properly granted Tomes summary judgment on this claim.

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                             III.                                         III.                                             

                          Conclusion                                      Conclusion                                                

          We hold that  Udo failed to create  a genuine issue

of triable fact  on his age  and race discrimination  claims,

and  therefore  also  on  his    1983  claim.    Accordingly,

defendant was entitled to summary judgment.  The  judgment of

the district court is therefore

          Affirmed.                              

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