
USCA1 Opinion

	




          August 31, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2196                                   LINDA L. JOLER,                                Plaintiff, Appellant,                                          v.                                 SCOTT PAPER COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            David  G. Webbert with whom  Law Offices of Phillip E. Johnson was            _________________            _________________________________        on briefs for appellant.            William J. Kayatta, Jr. with whom  B. Simeon Goldstein and Pierce,            _______________________            ___________________     ______        Atwood, Scribner, Allen, Smith & Lancaster were on brief for appellee.        __________________________________________                                 ____________________                                 ____________________                 BOUDIN,  Circuit Judge.   Linda  Joler, a  supervisor at                          _____________            Scott  Paper  Company's paper  mill  in  Winslow, Maine,  was            discharged  In March  1992  as part  of  a "downsizing"  that            eliminated 35  percent of  the salaried employees.   Charging            gender  discrimination, Joler  sued  Scott  in  the  district            court, primarily under Title  VII of the Civil Rights  Act of            1964, 42 U.S.C.    2000e et. seq.   Joler also claimed  under                                     ________            the Maine Human  Right Act,  5 M.R.S.A.     4571-72, but  the            parties have not sought  to distinguish the state claim  from            the federal claim.                 After discovery, Scott moved  for summary judgment. In a            written decision  the magistrate  judge recommended that  the            motion be granted.   On October 31, 1994, the  district judge            adopted  the findings  and recommendation  of the  magistrate            judge without elaboration.  Joler now appeals.   Joler's most            substantial  claim on  appeal  is factual,  namely, that  she            offered enough evidence of discrimination to justify a trial.                 The framework for evaluating the evidence in a Title VII            case  depends  on whether  the charge  is one  of intentional            discrimination or  of disparate impact, Griggs  v. Duke Power                                                    ______     __________            Co.,  401 U.S. 424 (1971);  in this case,  only the former is            ___            alleged.    Indeed,   the  layoff   actually  increased   the            percentage  of  female  first  line   supervisors  remaining.            Joler's claim,  therefore, depends  on a showing  that gender            bias was the  motive, or at least a motive,  in selecting her                                              _                                         -2-                                         -2-            for discharge.  See Price Waterhouse v. Hopkins, 490 U.S. 228                            ___ ________________    _______            (1989);  Woods v. Friction  Materials, Inc, 30  F.3d 255, 260                     _____    ________________________            (1st Cir. 1994).                 In Title VII cases, once the employee makes out a "prima                                                                    _____            facie"  case,  the  employer  must  articulate  a  legitimate            _____            nondiscriminatory reason for the discharge.  St. Mary's Honor                                                         ________________            Ctr. v. Hicks, 113  S. Ct. 2742, 2747-56 (1993);  Texas Dep't            ____    _____                                     ___________            of Community Affairs v. Burdine, 450 U.S. 248, 253-55 (1981);            ____________________    _______            McDonnell Douglas Corp. v.  Green, 411 U.S. 792, 802  (1973).            _______________________     _____            But neither burden is  a heavy one and, for  purposes of this            appeal,  Scott seemingly concedes that a prima facie case was                                                     ___________            made out  and Joler  concedes that  Scott did  articulate the            required explanation.                 While  the  burden  to  prove  Scott's  improper  motive            remained with Joler, she  could avoid summary judgment simply            by showing that substantial evidence supported  her position.            Fed. R. Civ.  P. 56(c); Pagano  v. Frank,  983 F.2d 343,  347                                    ______     _____            (1st  Cir. 1993).   In  evaluating the evidence  tendered, we            draw all reasonable inferences in favor of Joler as the party            opposing summary judgment, and we review de novo the district                                                     _______            court's  decision to grant summary  judgment.  Id.   The bare                                                           ___            facts are these:                 Joler  began  working  at  the mill  in  1975,  advanced            several steps up  the ladder,  and in 1987  became the  first            female  supervisor in  the mill's  Recycling Department.   In                                         -3-                                         -3-            fall 1991, Scott  ordered the  mill's management  to cut  the            salaried  work  force  by  about  35  percent.    The  mill's            management,  who made  the  selection using  guidelines  from            Scott's headquarters, comprised  the mill manager,  its human            resources director, and the heads  of each department.  Every            member of this team was a male.                 The team divided all  salaried employees into job groups            made up of those who, regardless of  their department, needed            similar  skills  for  their  jobs; Joler,  for  example,  was            grouped among 27 operating floor leaders throughout the mill.            Each  employee  was  then  graded numerically  based  on  job            skills, versatility and length of  service.  The employees in            each job  group were then ranked in order of the their scores            and those with the lowest scores were selected for discharge.                 Joler's  score  placed her  as  number 23  among  the 27            operating  floor leaders.    Scott discharged  the 10  lowest            scoring operating floor leaders,  comprising nine men and one            woman  (Joler).    After  the  downsizing,  17  such  leaders            remained,  of whom four were women, one having been promoted.            Thus, the proportion  of female leaders in  the mill actually            rose; but in the Recycling Department, the number of  leaders            changed from three men and one woman (Joler) to five men, two            of the men being shifted from other departments.                                         -4-                                         -4-                 Joler's case,  as summarized  on the appeal,  amounts to            this: Joler's  record at the mill was a good one; the two new            leaders added to the  Recycling Department had poorer records            than Joler's;  Joler's ranking  was adversely affected  by an            incident in which she complained  about a subordinate who had            made sexist comments about her; the mill had a history of too            few women  and of  tolerating sexism;  the rating scheme  was            biased against  Joler  and women  in  general; and  the  mill            culpably  destroyed  documents  and concealed  its  decision-            making process.                 If  all of these claims  were taken at  face value, they            could add up to a formidable  case.  But except for the first            one--Joler was  a good  employee--the claims  are overstated,            incomplete or in two important instances largely unsupported.            Whether  what is  left  is enough  remains to  be considered.            Still, it  is of no use  trying to weigh the  wheat until the            chaff has been separated out.                   The two transferred leaders  had flaws in their records,            as did Joler; but  each was ranked higher overall,  and Joler            presents no  evidence that  their rankings  were deliberately            overstated.   It is quite  true that there  was some evidence            that  the  transferees  did  not  perform  in  the  Recycling            Department as well as  had Joler.  But Joler  was experienced            there,  and they  were  not.   The reorganization  aimed, and                                         -5-                                         -5-            permissibly so, to retain generalists who had the flexibility            to be used in different jobs.                 Joler's next claim is that she was fired in part because            of her own recent complaint about sexual harassment by a male            subordinate.   This  man (Marcel  Moreau) made  at least  one            sexist  comment to Joler, Scott disciplined  him, and then it            softened the  discipline greatly  when his  union complained.            One or two members of the management group apparently thought            that Joler's  handling of the incident reflected badly on her            skills in dealing with subordinates, but she herself admitted            to problems in this sphere.                 There is more substance to Joler's claim that women were            underrepresented among  the mill's  employees and  there were            episodes of sexist comments by various of its male employees.            But  there is no evidence that  these background facts, which            are  sadly quite common, had any effect on Joler's ratings or            on  the rating process.   On the contrary,  there is evidence            that  partly on  account  of this  history,  Scott made  some            efforts to assure  that the downsizing  did not decrease  its            female-to-male ratio.                 We come,  then, to the  heart of the  matter--the charge            that  Joler's own  score and the  rating process  were biased            against women.   Joler's score was  principally determined by            her department  head, Fletcher,  and her brief  says outright            that he was motivated by gender bias stemming from the Moreau                                         -6-                                         -6-            incident.  On deposition, Joler herself  said that apart from            her discharge  she  never saw  Fletcher discriminate  against            women,  nor   is  there   any  objective  evidence   that  he            discriminated.                 About the most that Joler's  brief offers is his alleged            statement to her, when he informed her of the discharge, that            "you  can  cry now."   If  Fletcher  made this  statement (he            denies it but we  will assume arguendo that  he made it),  it                                          ________            likely  reflects a  stereotype.   But Fletcher  had supported                                                                _________            Joler's promotion to leader over two competing males, and his            ultimate appraisal of Joler was generally consistent with his            appraisals before the Moreau incident.  The charge of bias is            simply without basis.                 Having  reviewed the  evidence, we  also reject  Joler's            claim  that the  "versatility"  component of  the job  skills            criteria revealed a bias against women.  The resulting scores            for men and women in this category can be viewed in different            ways, some favorable  to women and some to  men.  But despite            claims to the contrary in Joler's brief, there is no evidence            that the criterion or the scores were deliberately tilted and            almost  none that  the criterion  had a  significant negative            effect upon women as a group.                 We turn  finally to  the charge of  document destruction            and  concealment.  Of course, a party's efforts to destroy or            conceal   evidence  may   give  rise   to  an   inference  of                                         -7-                                         -7-            consciousness  of  guilt,  and  this  self-appraisal  can  be            weighed  with other  evidence in  the  case.   But businesses            discard materials all  the time.  An  inference of spoilation            depends on  underlying facts that would  permit a fact-finder            to  conclude that those who destroyed the materials did so in            "bad faith or . . . consciousness of a weak case."  Allen Pen                                                                _________            Co. v. Springfield Photo Mount Co., 653 F.2d 17, 23 (1st Cir.            ___    ___________________________            1981).  No such evidence is present here.                 After   the  downsizing,  the   rating  group  kept  the            assessment sheets for every employee, handwritten comments on            the sheets,  and scores  assigned to each  employee by  every            rater.    Perhaps  unwisely,  the  group  discarded  separate            handwritten  notes made  by  individual  managers during  the            discussion  and  a set  of loose  flip  charts, one  of which            contained a more detailed breakdown of the scoring regime for            versatility than  was  contained in  the  written  assessment            plan.                 But  what  was  retained  by  Scott  makes  it  easy  to            reconstruct  almost all of the  rating process.   There is no            indication that  anything was  destroyed in order  to prevent            its  use  in  litigation  or  that  anything  lost  contained            information helpful to  Joler.  On  these facts, no  rational            basis exists for inferring  that Scott engaged in spoilation.            The magistrate judge did not err in rejecting the inference.                                          -8-                                         -8-                   It is  time to sum  up.   There is  simply not  enough            evidence to  underpin a  charge that Joler  was fired  either            solely or in part because of gender discrimination.  Not only            would the trial  judge be  compelled to direct  a verdict  if            such a case were presented  to a jury, but we have  no reason            to  think that  the gaps  and weaknesses  could be  filled by            anything likely to  arise at  trial.  Coll  v. PB  Diagnostic                                                  ____     ______________            Systems, Inc., 50 F.3d  1115, 1121 (1st Cir. 1995);  see also            _____________                                        ________            10  C.  Wright, A.  Miller &  M.  Kane, Federal  Practice and                                                    _____________________            Procedure   2713.1 (2d ed. 1983).             _________                 Joler  criticizes the magistrate judge's analysis of the            facts  and  the  weight  he assigned  to  certain  pieces  of            evidence.   There is  no  need to  consider these  criticisms            separately.  Because this court  reviews the grant of summary            judgment de novo,  we have to  make our own appraisal  of the                     _______            record.   Even  if we  were to  disagree with  the magistrate            judge on a particular point, our result would be the same and            that is sufficient.   Mesnick v. General Elec. Co.,  950 F.2d                                  _______    _________________            816, 822 (1st Cir. 1991).                 Joler's remaining claims of "legal" error have no force.            The "mixed  motive" provision of  the 1991 amendments  to the            statute,  42  U.S.C.     2000e-5(g)(2)(B),   did  in  certain            respects  overrule  the  Supreme  Court's  decision in  Price                                                                    _____            Waterhouse  v. Hopkins, 490 U.S. 228 (1989), but in this case            __________     _______            no  improper   mixed  motive  was  shown   by  the  evidence.                                         -9-                                         -9-            Similarly,  we   agree  with   Joler  that  under   Hicks,  a                                                                _____            plaintiff's  prima  facie  case,  coupled  with  evidence  of                         ____________            pretext, can  sometimes suffice to  defeat summary  judgment,            see  Woods v. Friction Materials, Inc., 30 F.3d 255, 260 (1st            ___  _____    _______________________            Cir.  1994); but there is no evidence here sufficient to show            Scott's asserted reason for the discharge was pretext.                 This is a  distressing case because of a hardship having            nothing  to do with  discrimination.  By  all accounts, Joler            was  an able employee who served Scott with dedication for 16            years and did not, in any ordinary sense, deserve to lose her            job.   But it is in  the nature of large  scale reductions in            force that qualified workers find themselves out of a job for            economic reasons unrelated to personal fault.  Title VII  was            not intended to remedy that problem.                 Affirmed.                  ________                                         -10-                                         -10-
