
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1692 <br> <br>                  HENRY JOHN FERNANDES, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                  COSTA BROTHERS MASONRY, INC., <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Richard G. Stearns, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                 Coffin, Senior Circuit Judge, <br>                                 <br>                   and Stahl, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>     Renee J. Bushey, with whom Michael A. Feinberg and Feinberg, <br>Charnas & Birmingham, P.C. were on brief, for appellants. <br>     Richard W. Gleeson, with whom Gleeson & Corcoran was on brief, <br>for appellee. <br> <br> <br> <br> <br> <br>December 29, 1999 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  SELYA, Circuit Judge.  Henry John Fernandes, Richard H. <br>Gilbert, and Benjamin G. Rose, all dark-skinned Cape Verdeans, <br>sued their quondam employer, Costa Brothers Masonry, Inc. (Costa <br>Bros.), alleging a discriminatory failure to rehire.  They now <br>appeal from an order granting summary judgment against them.  Their <br>appeal requires us to explore how courts charged with resolving <br>discrimination cases should choose between pretext analysis (an <br>approach first limned in McDonnell Douglas Corp. v. Green, 411 U.S. <br>792 (1973)) and mixed-motive analysis (an alternative approach <br>limned later in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) <br>(plurality opinion)).  We conclude, as did the district court, that <br>the evidence thus far adduced does not trigger mixed-motive <br>analysis.  We also conclude, however, that under a properly <br>performed pretext analysis, the appellants' case should have <br>survived.  Consequently, we vacate the judgment and remand for <br>further proceedings. <br>I.  THE FACTS <br>  As the summary judgment standard demands, we take the <br>facts in the light most hospitable to the appellants, indulging all <br>reasonable inferences in their favor.  See Conward v. Cambridge <br>Sch. Comm., 171 F.3d 12, 17 (1st Cir. 1999).  Mindful of this coign <br>of vantage, we deliberately omit from our narrative versions of <br>certain conversations and events that conflict with the appellants' <br>accounts. <br>  In 1995, Stone Building Company secured a contract to <br>construct a new high school in Mashpee, Massachusetts.  It engaged <br>Costa Bros. as the masonry subcontractor.  Because the job was <br>publicly funded, contractors and subcontractors were told that they <br>had to conform to specific equal employment opportunity (EEO) rules <br>and to issue weekly EEO summaries documenting the number of hours <br>worked by minority employees. <br>  A Portuguese immigrant, Domingos DaCosta, owns Costa <br>Bros.  On November 13, 1995, he retained Sebastian Ceribelli, a <br>Brazilian, as the masonry foreman for the Mashpee project.  DaCosta <br>and Ceribelli then hired a number of masons and laborers to work on <br>the job.  Those engaged on November 27 included five masons   the <br>appellants and two white males, George Choquette and George <br>Medeiros   and a dark-skinned Cape Verdean laborer, Glenn Spinola.  <br>These six men worked as a team until December 7, when Ceribelli <br>laid off all six due to winter weather conditions and lack of heat <br>in the workplace.  He vowed that he would recall them when the <br>heating quandary had been solved.  Other workers were laid off at <br>roughly the same time (although some, unlike the appellants, were <br>assigned to ongoing Costa Bros. projects elsewhere). <br>  On or about December 13, Costa Bros. resumed work on the <br>Mashpee project.  It recalled some masons (but not the appellants).  <br>Gilbert visited the job site the following week and asked Ceribelli <br>when he would be rehired.  Ceribelli responded, "The way things are <br>going now . . . I wouldn't count on it." <br>  Rose sojourned to the site the next Saturday.  He noticed <br>masons working there and queried DaCosta about this circumstance.  <br>DaCosta replied, "We're doing a little fixing up here."  Rose then <br>asked, "Are we going to get called back?"  DaCosta responded, <br>"We're going to close in"   a comment that Rose reasonably took to <br>mean that the building would be enclosed in order to create a <br>heated space in which masons could work. <br>  Having heard nothing further, Rose checked back two weeks <br>later.  He saw that the job site was fully heated and asked <br>DaCosta, "Aren't we coming back?"  DaCosta replied cryptically, <br>"Well, I got my men."  When Rose inquired about what had happened <br>to the plan to recruit residents and minorities, DaCosta stated, "I <br>don't need minorities, and I don't need no residents on this job.  <br>I got my men."  Rose complained that DaCosta had "twelve new faces" <br>working on the project, but DaCosta abruptly terminated the <br>conversation. <br>  In point of fact, Costa Bros. recalled a total of <br>eighteen workmen (masons and laborers) between December 13 and <br>January 25, and hired ten new ones in that span (none of whom had <br>worked previously for Costa Bros.).  All twenty-eight were white <br>males. <br>  Fernandes returned to the job site on numerous occasions <br>in December and January.  Each time, DaCosta told him that there <br>was no work available but to come back again.  After several weeks, <br>Fernandes asked Ceribelli why he and the other Cape Verdeans had <br>not been recalled.  Ceribelli replied that Costa Bros. "had only <br>hired a few minorities because of local pressure." <br>  On January 30, DaCosta, James Byrne (the clerk of the <br>works), and a representative of the general contractor met with <br>Fernandes, Raoul Galvin (a civil rights activist), and others from <br>the local community regarding Costa Bros.'s compliance with EEO <br>requirements.  Galvin noted that Costa Bros. had hired more <br>workers, all of whom were white, but that it had no minorities <br>working at the site.  He implored DaCosta to rehire Fernandes <br>because "whatever was going on at the time would stop if he at <br>least put one of [the Cape Verdeans] back to work."  DaCosta <br>indicated that he would honor this request. <br>  Fernandes reported for duty the following Monday but was <br>informed that there was no work available.  This experience was <br>repeated several times.  Costa Bros. finally restored Fernandes to <br>the payroll on March 26, albeit as a laborer rather than as a <br>mason.  On the same day, Ceribelli warned him to "watch out" <br>because DaCosta was "going to be on [his] back."  This prediction <br>proved prophetic:  according to Fernandes, DaCosta "followed [him] <br>around," constantly "hollering and screaming" at him. <br>  When Fernandes reported for work the next morning, <br>DaCosta instructed him to get an "F block" (or so he thought).  <br>Fernandes was unsure what an "F block" was and asked DaCosta (who, <br>as matters turned out, had wanted a standard "half block").  After <br>castigating Fernandes for his ignorance, DaCosta declared that he <br>was "tired of . . . what's going on between you guys," and voiced <br>the opinion that "[y]ou guys are trying to hurt me."  He then <br>proclaimed:  "I don't have to hire you locals or Cape Verdean <br>people.  This is my business.  It belongs to me."  At that <br>juncture, DaCosta fired Fernandes. <br>II.  TRAVEL OF THE CASE <br>  After pursuing administrative remedies, see 42 U.S.C.  <br>2000e-5(e); Mass. Gen. Laws ch. 151B,  5, the appellants sued.  In <br>their complaint, they alleged discrimination on the basis of race <br>and color in violation of Title VII of the Civil Rights Act of <br>1964, 42 U.S.C.  2000e to 2000e-17, and its state-law analogue, <br>Mass. Gen. Laws ch. 151B,  4(1).  Costa Bros. denied the material <br>allegations of the complaint, and the parties spent the next year <br>conducting pretrial discovery.  From the record and the briefs, it <br>appears that the appellants' original claim was constructively <br>amended to include discrimination predicated on national origin, <br>and the case went forward on that assumption. <br>  In due course, Costa Bros. moved for summary judgment, <br>see Fed. R. Civ. P. 56, and the appellants filed an opposition.  <br>The district court heard oral argument, took the matter under <br>advisement, and thereafter granted the motion as to all claims.  In <br>its unpublished rescript, the court characterized DaCosta's <br>statement that "I don't need minorities . . . on this job" as a <br>stray remark, insufficient to trigger mixed-motive analysis.  <br>Although the court catalogued DaCosta's comment that "I don't have <br>to hire you locals or Cape Verdean people" in its recitation of the <br>facts, it did not mention this comment thereafter. <br>  Undertaking pretext analysis, the court focused on two <br>white masons who had been hired in January 1996   Piper and <br>Winters.  The court ruled that the Piper hiring did not assist the <br>appellants because Piper had special skills and they could not <br>establish that their qualifications were equivalent to his.  As to <br>Winters, the court accepted Costa Bros.'s explanation that it had <br>hired him on the recommendation of another employee, characterizing <br>what had happened as cronyism rather than discrimination.  The <br>court never discussed whether the record sufficed to support a <br>finding that this explanation was pretextual, nor did it explore <br>the numerous other employment decisions that Costa Bros. made in <br>the December-January time frame.  This appeal followed. <br>III.  DISCUSSION <br>  The appellants asseverate that the district court erred <br>in choosing a legal framework and that, even if the court marched <br>down an acceptable analytic path, it did not stay on track.  We <br>consider these arguments in sequence, pausing first to frame the <br>choice-of-approach issue.  We then briefly address the appellants' <br>state-law claim. <br>               A.  The Available Analytic Methods. <br>  A plaintiff alleging disparate treatment under Title VII <br>may proceed on a mixed-motive approach or on a pretext approach.  <br>For purposes of this case, it is important to understand the basic <br>difference between these two modalities. <br>  Mixed-motive analysis applies when the evidence shows <br>that an employer considered both a proscribed factor (say, race) <br>and one or more legitimate factors (say, competence) in making a <br>challenged employment decision.  See  Price Waterhouse, 490 U.S. at <br>241-42.  In that scenario, the plaintiff is not obliged to separate <br>out the relative import of each element that went into the <br>decision; rather, once the plaintiff proves that a proscribed <br>factor "played a motivating part" in the decision, the burden of <br>persuasion shifts to the employer, who will be held liable for <br>damages under Title VII unless "it can prove that, even if it had <br>not taken [the proscribed factor] into account, it would have come <br>to the same decision regarding [the plaintiff]."  Id. at 242, 244.  <br>Even then, because Congress has reshaped mixed-motive analysis in <br>certain respects, the employee may be entitled to equitable relief <br>so long as he has proven that the proscribed factor played some <br>part in the decisional calculus.  See 42 U.S.C.  2000e-2(m); <br>2000e-5(g)(2)(B); see also Higgins v. New Balance Athletic Shoe, <br>Inc., 194 F.3d 252, 259 n.3 (1st Cir. 1999); Carey v. Mt. Desert <br>Island Hosp., 156 F.3d 31, 43-44 (1st Cir. 1998). <br>  It is readily apparent that this mixed-motive approach, <br>uncabined, has the potential to swallow whole the traditional <br>McDonnell Douglas analysis.  To guard against this possibility, the <br>Court restricted its applicability to those infrequent cases in <br>which a plaintiff can demonstrate with a high degree of assurance <br>that the employment decision of which he complains "was the product <br>of a mixture of legitimate and illegitimate motives."  Price <br>Waterhouse, 490 U.S. at 247.  Under this formulation, access to the <br>mixed-motive approach ultimately depends on the quality of the <br>available evidence.  Most courts agree that Justice O'Connor's <br>seminal concurrence in Price Waterhouse furnishes the best device <br>for testing quality (and, thus, the best roadmap for segregating <br>mixed-motive cases from the mine-run of discrimination cases).  <br>After all, when the Supreme Court rules by means of a plurality <br>opinion (as was true in Price Waterhouse), inferior courts should <br>give effect to the narrowest ground upon which a majority of the <br>Justices supporting the judgment would agree.  See Marks v. United <br>States, 430 U.S. 188, 193 (1977).  The O'Connor concurrence fits <br>this profile.  Hence, we turn to it. <br>  "What is required [to trigger mixed-motive analysis] is <br>. . . direct evidence that decisionmakers placed substantial <br>negative reliance on an illegitimate criterion in reaching their <br>decision."  Price Waterhouse, 490 U.S. at 277 (O'Connor, J., <br>concurring).  Because discrimination tends more and more to operate <br>in subtle ways, direct evidence is relatively rare; when it comes <br>to light, however, a plaintiff can use it to demonstrate "that an <br>illegitimate factor played a substantial role in a particular <br>employment decision."  Id. at 275.  It follows that plaintiffs may <br>use the Price Waterhouse mechanism in disparate treatment cases in <br>which they adduce direct evidence of a discriminatory animus, <br>whereas they must proceed under the conventional McDonnell Douglas <br>framework (commonly called "pretext analysis") in all other cases.  <br>See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st <br>Cir. 1996). <br>  Under the pretext method, the plaintiff first must <br>establish a prima facie case.  See Texas Dep't of Comm'y Affairs v. <br>Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. <br>at 802.  We shall return to the components of the prima facie case; <br>for now, it suffices to say that this requirement is "not onerous."  <br>Burdine, 450 U.S. at 253.  If the plaintiff clears this modest <br>hurdle, the burden of production   but not the burden of persuasion <br>  shifts to the employer, who must articulate a legitimate, <br>nondiscriminatory reason for the adverse employment action.  See <br>St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); <br>Burdine, 450 U.S. at 254-55.  Once that occurs, the plaintiff must <br>show both that the employer's "proffered reason is a sham, and that <br>discriminatory animus sparked [its] actions."  Conward, 171 F.3d at <br>19.  To this end, the full panoply of circumstantial evidence is <br>available, including but not limited to "statistical evidence <br>showing disparate treatment by the employer of members of the <br>protected class, comments by decisionmakers which denigrate <br>[persons in the protected group], the incidence of differential <br>treatment in the workplace, and the deployment of . . . <br>replacements."  Mesnick v. General Elec. Co., 950 F.2d 816, 824 <br>(1st Cir. 1991) (citations omitted).  The totality of the evidence <br>then is examined "as part of an aggregate package of proof."  Id. <br>  A plaintiff, uncertain of what discovery will yield or <br>how a judge will react to certain proffers, may elect to proceed <br>simultaneously on both fronts (mixed-motive and pretext), cognizant <br>that the trial court, at an appropriate stage of the litigation, <br>will channel the case into one format or the other.  See Price <br>Waterhouse, 490 U.S. at 247 n.12; Thomas v. National Football <br>League Players Ass'n, 131 F.3d 198, 202 (D.C. Cir. 1997).  <br>Consistent with the O'Connor concurrence, the court typically will <br>make that determination based on the availability or unavailability <br>of direct evidence.  See Taylor v. Virginia Union Univ., 193 F.3d <br>219, 232 (4th Cir. 1999) (en banc); Ostrowski v. Atlantic Mut. Ins. <br>Cos., 968 F.2d 171, 181-82 (2d Cir. 1992). <br>  This ruling can have important effects on the outcome of <br>the litigation.  In a mixed-motive analysis, "the burden of <br>persuasion shifts from the employee to the employer, who must then <br>affirmatively prove that it would have made the same decision even <br>if it had not taken the protected characteristic into account."  <br>Ayala-Gerena, 95 F.3d at 95-96; accord Price Waterhouse, 490 U.S. <br>at 246 (explaining that, under a mixed-motive analysis, "the <br>plaintiff must persuade the factfinder on one point, and then the <br>employer, if it wishes to prevail, must persuade it on another").  <br>This contrasts vividly with pretext analysis, under which the <br>employee retains the burden of persuasion throughout.  See Cumpiano <br>v. Banco Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990). <br>                    B.  Mixed-Motive Analysis. <br>  With this preface, we turn to the appellants' contention <br>that the lower court erred in eschewing a mixed-motive analysis.  <br>Because this case comes to us on appeal from an order granting <br>brevis disposition, we afford de novo review.  See Conward, 171 <br>F.3d at 18. <br>  As our earlier discussion indicates, direct evidence is <br>the touchstone for mixed-motive analysis.  Hence, the fate of the <br>appellants' present contention hinges on whether they adduced <br>direct evidence of Costa Bros.'s use of a proscribed factor (race, <br>color, and/or national origin) in the decisional process.  <br>Answering that question is more difficult than might appear at <br>first blush.  To be sure, Justice O'Connor furnished a trenchant, <br>universally accepted example of what is not direct evidence:  stray <br>remarks, such as "statements by nondecisionmakers, or statements by <br>decisionmakers unrelated to the decisional process itself."  Price <br>Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring).  Since <br>then, however, jurists have struggled in attempting to define the <br>term affirmatively.  This operose task not only has divided the <br>courts of appeals but also has created a patchwork of intra-circuit <br>conflicts.  Generally speaking, three schools of thought have <br>emerged. <br>  1.  The "Classic" Position.  Some courts adopt the <br>traditional definition of "direct evidence" for this purpose, <br>holding that the term signifies evidence which, if believed, <br>suffices to prove the fact of discriminatory animus without <br>inference, presumption, or resort to other evidence.  See, e.g., <br>Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. <br>1999); Haas v. Advo Sys., Inc., 168 F.3d 732, 734 n.2 (5th Cir. <br>1999); EEOC v. Wiltel, Inc., 81 F.3d 1508, 1514 (10th Cir. 1996); <br>Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996).  <br>Although only the Fifth and Tenth Circuits cling consistently to <br>this view, other tribunals have embraced it periodically.  See, <br>e.g., Carter v. Three Springs Resid'l Treatment, 132 F.3d 635, 641 <br>(11th Cir. 1998); Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 <br>(7th Cir. 1994). <br>  2.  The "Animus Plus" Position.  The Fourth Circuit, <br>sitting en banc, recently defined "direct evidence" for this <br>purpose as evidence, both direct and circumstantial, of conduct or <br>statements that (1) reflect directly the alleged discriminatory <br>animus and (2) bear squarely on the contested employment decision.  <br>See Taylor, 193 F.3d at 232.  The D.C. Circuit takes the same view.  <br>See Thomas, 131 F.3d at 204.  The Ninth Circuit seems headed in <br>this direction.  See Lambert v. Ackerley, 180 F.3d 997, 1008-09 <br>(9th Cir. 1999) (en banc), petition for cert. filed, 68 U.S.L.W. <br>3292 (U.S. Oct. 20, 1999) (No. 99-681).  The Third Circuit at one <br>time was in the "animus plus" camp, see Walden v. Georgia-Pacific <br>Corp., 126 F.3d 506, 513 (3d Cir. 1997), cert. denied, 118 S. Ct. <br>1516 (1998), but that court is poised to revisit the question.  See <br>Hankins v. City of Philadelphia, 189 F.3d 353 (3d Cir. 1999), <br>rehearing en banc granted, opinion vacated, 188 F.3d 217 (3d Cir. <br>1999).  Two other courts of appeals have indicated occasional <br>approval of this approach, see, e.g., Sheehan v. Donlen Corp., 173 <br>F.3d 1039, 1044 (7th Cir. 1999); Deneen v. Northwest Airlines, <br>Inc., 132 F.3d 431, 436 (8th Cir. 1998), but as the cases cited <br>herein indicate, both of these courts have flirted with other <br>formulations.  Courts endorsing the animus plus position do not <br>distinguish between direct and circumstantial evidence in the <br>classic sense but, rather, emphasize that the mixed-motive trigger <br>depends on the strength of the plaintiff's case.  See, e.g., <br>Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 553 (4th Cir. <br>1999) (emphasizing that whether a case falls under the mixed-motive <br>or pretext rubric "ultimately hinges on the strength of the <br>evidence establishing discrimination") (citation and internal <br>quotation marks omitted); Thomas, 131 F.3d at 204 (similar). <br>  3.  The "Animus" Position.  A few courts resolve the <br>direct evidence conundrum by the simple expedient of deleting the <br>"plus" from the "animus plus" formulation.  Those courts opine that <br>as long as the evidence (whether direct or circumstantial) is tied <br>to the alleged discriminatory animus, it need not bear squarely on <br>the challenged employment decision.  The Second Circuit advocates <br>this position.  See, e.g., Lightfoot v. Union Carbide Corp., 110 <br>F.3d 898, 913 (2d Cir. 1997); Ostrowski, 968 F.2d at 182.  The <br>Eighth Circuit intermittently takes this stance, see, e.g., Kerns <br>v. Capital Graphics, Inc., 178 F.3d 1011, 1017-18 (8th Cir. 1999); <br>Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. <br>1993), and two other cases appear to fit somewhat loosely into this <br>category, see Wright v. Southland Corp., 187 F.3d 1287, 1303-04 <br>(11th Cir. 1999); Hennessy v. Penril Datacomm Networks, Inc., 69 <br>F.3d 1344, 1348-50 (7th Cir. 1995). <br>  4.  The First Circuit's Position.  To complete our survey <br>of the legal landscape, we direct our gaze inward.  Although we <br>have dropped inconclusive hints here and there, see, e.g., Ayala- <br>Gerena, 95 F.3d at 95-96; Smith v. F.W. Morse & Co., 76 F.3d 413, <br>421 (1st Cir. 1996), we have yet to choose among these conflicting <br>approaches.  Thus, the question is wide open in this circuit. <br>  5.  The Case at Hand.  This case does not require us to <br>fill the void, and we decline to do so gratuitously.  The <br>appellants contend that two comments attributed to DaCosta   "I <br>don't need minorities, and I don't need residents on this job" and <br>"I don't have to hire you locals or Cape Verdean people"   <br>constitute direct evidence that a proscribed factor influenced <br>Costa Bros.'s hiring practices.  The employer demurs, asserting <br>that these are merely "stray remarks" and, in all events, lack <br>sufficient probative force to constitute direct evidence. <br>  We do not share the view that DaCosta's statements must <br>be classified as stray remarks.  As we have pointed out, DaCosta <br>was the ultimate decisionmaker, and both pronouncements pertained <br>to the decisional process.  He made the first statement when <br>refusing to rehire Rose; because it bore directly on a challenged <br>employment decision, it hardly qualifies as a stray remark.  See, <br>e.g., Deneen, 132 F.3d at 436; Diaz-Gandia v. Dapena-Thompson, 90 <br>F.3d 609, 616 (1st Cir. 1996).  DaCosta uttered the second <br>statement when cashiering Fernandez and, although this suit does <br>not challenge Fernandes's dismissal per se, see infra note 3, we <br>think that the comment, which in terms bears upon Costa Bros.'s <br>repeated refusals to rehire the appellants, sufficiently implicates <br>the decisional process to avoid classification as a stray remark.  <br>See Wichmann v. Board of Trustees, 180 F.3d 791, 802 (7th Cir. <br>1999), petition for cert. filed, 68 U.S.L.W. 3154 (U.S. Sept. 3, <br>1999) (No. 99-411); Thomas, 131 F.3d at 204. <br>  In the last analysis, however, this taxonomic triumph <br>constitutes a hollow victory for the appellants.  Despite the fact <br>that these statements cannot be brushed aside as stray remarks, <br>they are inherently ambiguous and, as such, do not directly reflect <br>the alleged animus.  The first   "I don't need minorities and I <br>don't need residents on the job"   may be interpreted either as an <br>admission of an exclusionary hiring practice (thus explicating the <br>true reason for DaCosta's actions) or as a benign response to a <br>specific inquiry reflecting DaCosta's (erroneous) perception that <br>he no longer had to make special efforts to comply with EEO <br>requirements.  The second   "I don't have to hire you locals or <br>Cape Verdean people"   may be interpreted either as a <br>discriminatory explanation for DaCosta's actions or as a response <br>to what he perceived as an unjustified attempt to impose some sort <br>of quota system upon his company. <br>  Under any of the three views we have delineated, these <br>statements do not rise to the level of direct evidence.  Courts <br>that take the "classic" position have contrasted direct evidence <br>with, inter alia, ambiguous statements, and have indicated that the <br>latter will not suffice.  See Maldonado v. U.S. Bank, 186 F.3d 759, <br>763 (7th Cir. 1999); Troupe, 20 F.3d at 736-37.  Courts that take <br>either the "animus plus" or "animus" position place great emphasis <br>on the strength of the proof of discriminatory animus.  See, e.g., <br>Fuller v. Phipps, 67 F.3d 1137, 1142-43 (4th Cir. 1995); Thomas, <br>131 F.3d at 204; Fields v. New York State Office of Mental <br>Retardation & Developmental Disabilities, 115 F.3d 116, 122 (2d <br>Cir. 1997); Ostrowski, 968 F.2d at 182.  In our judgment, <br>inherently ambiguous statements, without more, cannot supply the <br>strong evidence that these courts rightfully demand as a <br>prerequisite to mixed-motive analysis.  We conclude, therefore, <br>that a statement that plausibly can be interpreted two different <br>ways   one discriminatory and the other benign   does not directly <br>reflect illegal animus and, thus, does not constitute direct <br>evidence.  See, e.g., Carter, 132 F.3d at 641 ("We have held that <br>statements that are open to more than one interpretation do not <br>constitute direct evidence of racial discrimination."); Troupe, 20 <br>F.3d at 736-37 (similar).  Thus, DaCosta's statements do not serve <br>to unlatch the door to the mixed-motive approach. <br>                      C.  Pretext Analysis. <br>  Having determined that the district court appropriately <br>selected pretext analysis as the method of choice, we next examine <br>the court's execution of that analysis.  We again afford plenary <br>review.  See Conward, 171 F.3d at 18. <br>  1.  The Prima Facie Case.  Notwithstanding Costa Bros.'s <br>tendency to conceptualize this appeal as a reduction-in-force case, <br>the appellants' complaint squarely alleges a discriminatory failure <br>to rehire.  Because the appellants have not complained that the <br>layoff itself was discriminatory, the employer's focus on the <br>elements of a prima facie reduction-in-force case is misplaced.  <br>The proper focus is on failure to rehire, and the proper source for <br>the elements of a prima facie failure-to-rehire case is McDonnell <br>Douglas itself. <br>  Under that authority, a plaintiff alleging a failure to <br>rehire establishes his prima facie case by showing: <br>    (i) that he belongs to a racial minority; (ii) <br>  that he applied and was qualified for a job <br>  for which the employer was seeking applicants; <br>  (iii) that, despite his qualifications, he was <br>  rejected; and (iv) that, after his rejection, <br>  the position remained open and the employer <br>  continued to seek applicants from persons of <br>  complainant's qualifications. <br> <br>McDonnell Douglas, 411 U.S. at 802.  Contrary to Costa Bros.'s <br>contention, a plaintiff need not show as part of his prima facie <br>case that the employer either recalled similarly situated non- <br>minority employees or otherwise treated employees of different <br>ethnic backgrounds more favorably.  See Perry v. Woodward, 188 F.3d <br>1220, 1228-29 (10th Cir. 1999); Conward, 171 F.3d at 19-20; Walker <br>v. Mortham, 158 F.3d 1177, 1179 n.2, 1186 (11th Cir. 1998), cert. <br>denied, 120 S. Ct. 39 (1999); Walker v. St. Anthony's Med. Ctr., <br>881 F.2d 554, 558 (8th Cir. 1989); see also Cumpiano, 902 F.2d at  <br>155 n.2. <br>  Against this benchmark, we conclude without serious <br>question that the appellants established a prima facie case.  The <br>first prong is uncontroversial; all three appellants are Cape <br>Verdean and, as such, belong to a racial minority.  The second <br>element also falls easily into place:  all three performed <br>satisfactorily as masons prior to the layoff and plainly were <br>qualified to do the work. <br>  Turning to the third facet of the prima facie case, the <br>record establishes that all three appellants returned to the job <br>site at various times after the layoff and sought reinstatement.  <br>For the most part, Costa Bros. rebuffed these efforts.  The sole <br>exception   the time in March when DaCosta capitulated to external <br>pressure and hired Fernandes as a laborer, only to fire him on his <br>second day of work   hardly suffices to tip the balance.  Cf. <br>International Bhd. of Teamsters v. United States, 431 U.S. 324, <br>341-42 (1977) (explaining that subsequent changes in corporate <br>"hiring and promotion policies . . . could not erase [the <br>company's] previous illegal conduct or its obligation to afford <br>relief to those who suffered because of it").  This is especially <br>so since what transpired on that occasion plausibly can be <br>interpreted (drawing permissive inferences favorable to the <br>appellants) as further evidence of DaCosta's discriminatory <br>treatment of Fernandes.  After all, DaCosta had resisted rehiring <br>Fernandes for several weeks and had to be persuaded to do so by a <br>civil rights advocate.  Moreover, Ceribelli   the Costa Bros. <br>foreman   forewarned Fernandes that DaCosta would be "on [his] <br>back," and the sequence of events that followed reasonably could be <br>seen as proof of the pudding. <br>  The appellants also fulfilled the final prima facie case <br>requirement.  In the relevant time frame (December-January), Costa <br>Bros. had an ongoing need for masons on the Mashpee project, hiring <br>and recalling many throughout the period.  For aught that appears, <br>the qualifications of the vast majority of these masons were much <br>the same as the appellants' qualifications.  No more is exigible.  <br>See Conward, 171 F.3d at 19. <br>  Costa Bros.'s efforts to dispute this element of the <br>prima facie case are unavailing.  In the district court, it <br>characterized its hiring practices as "simply react[ing] to men who <br>appeared at the right place at the right time," and argued that it <br>had no need for additional help at the precise moments that the <br>appellants inquired.  On this chiaroscuro record, a jury might so <br>find   but it also might find this to be a self-serving fiction.   <br>  It may or may not be a coincidence that, of the nineteen <br>men whom DaCosta furloughed on December 7 and 8 (the three <br>appellants, plus Choquette, George Medeiros, Spinola, William <br>Ceribelli, Juliao Fernandes, Victor Fernandez, Martirio Neto, <br>Antonio Santo, Jose Silva, Artur Teles, Antonio DaSilva, Fernando <br>DaSilva, Miguel Silva, Joseph Pimenthal, Jose Claudino, and Dinos <br>Medeiros), all but five either were reassigned to another Costa <br>Bros. job or recalled in mid-December.  Likewise, it may or may <br>not be coincidental that four of the excluded five (the three <br>appellants and Spinola) comprised the entire complement of minority <br>employees who had toiled on the Mashpee project.  Moreover, the <br>fourteen men who were given an opportunity to work for Costa Bros. <br>either at Mashpee or on another project in mid-December included <br>two white masons (George Medeiros and William Ceribelli) and three <br>white laborers (Joao Bolarinho, Fernando DaSilva, and Artur Teles) <br>who had been hired, and then furloughed, on approximately the same <br>dates as the appellants. <br>  Costa Bros. attempts to blunt the force of this evidence <br>in three ways.  First, it notes that George Medeiros, though <br>recalled, only worked for four days.  The fact remains, however, <br>that he was recalled and the appellants were not.  Second, Costa <br>Bros. points out that one member of the excluded group (Choquette) <br>was a white mason.  That is true as far as it goes   but it does <br>not go very far:  the record is devoid of evidence that Choquette <br>applied for reinstatement at any time.  Third, Costa Bros. asserts <br>that it rehired Spinola in April 1996.  We think that this fact <br>possesses only marginal relevance here, inasmuch as Spinola's <br>recall occurred well beyond the December-January period during <br>which the appellants unsuccessfully sought reinstatement. <br>  In addition to the fourteen rehires just discussed, the <br>record indicates that Costa Bros. engaged a half-dozen new workers <br>for determinate positions during late December and January:  Carlos <br>Bolarinho (a laborer, hired on December 29); Piper (a mason, hired <br>on January 2); Winters (a mason, hired on January 10); Joaquim <br>Fernandes (a laborer, hired on January 18); Dan Cormier (a laborer, <br>hired on January 22); and Luis Amaro (a laborer, hired on January <br>23).  All were white.  Costa Bros. recruited four more white males <br>(Antonio Reboca, Joao Soares, Michael Oliveira, and Steven Downey) <br>on various dates between January 5 and January 25.  Although these <br>four were assigned to work on the Mashpee project, we cannot <br>accurately determine from the existing record which were masons and <br>which were laborers. <br>  These figures make the appellants' point emphatically.  <br>They create an ample evidentiary platform for a finding that, <br>during the relevant two-month period, Costa Bros. sought applicants <br>possessing qualifications similar to those of the appellants for <br>open positions.  Thus, the prima facie case was fully formed. <br>  2.  The Employer's Reason.  We proceed to the next step <br>of the McDonnell Douglas pavane:  Costa Bros.'s professed reason <br>for failing to rehire the appellants.  In its response to a <br>discovery request, Costa Bros. stated that it hired others in the <br>pertinent time frame because it "needed masons or laborers and the <br>individuals [eventually hired] were available."  It also stated <br>that, apart from Piper and Winters, all the masons that it engaged <br>"were currently working or had worked for Costa Brothers."  The <br>employer glossed these statements in its summary judgment papers, <br>maintaining that it "simply reacted to men who appeared at the <br>right place at the right time and put them to work." <br>  As to Piper and Winters, Costa Bros. makes situation- <br>specific arguments.  Piper,  it says, had special skills as a <br>layout man, and Winters was recommended by Victor Fernandez, <br>another Costa Bros. employee. <br>  We assume, for argument's sake, that these reasons, in <br>the aggregate, constitute legitimate, nondiscriminatory grounds for <br>hiring others in lieu of recalling the appellants.  Accordingly, we <br>proceed to the third and final stage of the McDonnell Douglas <br>inquiry. <br>  3.  Pretext for Discrimination.  Once the employer <br>articulates a legitimate, nondiscriminatory reason for a challenged <br>employment decision, the plaintiff must be accorded a fair chance <br>to show that the stated reason disguised a discriminatory animus.  <br>See McDonnell Douglas, 411 U.S. at 804; Pagano v. Frank, 983 F.2d <br>343, 348 (1st Cir. 1993).  As long as the plaintiff offers evidence <br>of pretext, the trial court must not accept the employer's <br>proffered reason for the adverse employment action at face value, <br>no matter how plausible it may sound, but must proceed to the final <br>analytic step.  See McDonnell Douglas, 411 U.S. at 804.  To that <br>end, we review the summary judgment record. <br>  We start with the employer's situation-specific reasons.  <br>The lower court accepted without further inquiry Costa Bros.'s <br>explanations of why it hired Piper and Winters.  We are not so <br>sanguine. <br>  That said, we cannot fault the district court's ruling <br>vis--vis Piper.  Costa Bros. asserts without contradiction that it <br>needed a layout man on the job and that none of the appellants <br>possessed this particular skill.  If true, this rationale suffices <br>to dispel any odor of unfair discrimination, see Hill v. Seaboard <br>Coast Line R.R. Co., 767 F.2d 771, 774 (11th Cir. 1985), and the <br>appellants neither contested the need for a layout man nor claimed <br>to possess the requisite skill set. <br>  Winters's hiring is more problematic.  The district court <br>characterized this event as cronyism, not discrimination (and <br>therefore lawful, though perhaps unsavory).  For this proposition, <br>it relied upon our opinion in Foster v. Dalton, 71 F.3d 52 (1st <br>Cir. 1995).  Foster, however, cannot carry the weight that the <br>district court thrust upon it. <br>  In Foster, the trial court concluded that cronyism, not <br>race discrimination, had prompted a hiring decision.  See id. at <br>55.  We upheld that conclusion, ruling that "in this case, cronyism <br>provides a sufficient alternative explanation" for the decision.  <br>See id. at 56.  Withal, the district court made its finding not on <br>summary judgment but after a bench trial.  See id. at 54-56.  The <br>opinion does not stand for the proposition that a court, at the <br>summary judgment stage, may accept uncritically an employer's <br>articulation of cronyism as an explanation for its actions.  <br>Rather, the court must take the next step and determine, on whole- <br>record review, if the evidence raises a genuine issue of material <br>fact as to whether the proffered explanation is the real reason for <br>the employer's decision or, conversely, a pretext for <br>discrimination.  See, e.g., Conward, 171 F.3d at 19; Mullin v. <br>Raytheon Co., 164 F.3d 696, 699 (1st Cir.), cert. denied, 120 S. <br>Ct. 44 (1999). <br>  At any rate, the district court's error goes well beyond <br>its failure to probe the facts surrounding Winters's enlistment.  <br>In the circumstances of this case, the court should have cast the <br>net of its inquiry more widely and assessed all the recalls and <br>hirings that had transpired during the months of December and <br>January.  See McDonnell Douglas, 411 U.S. at 804-05; Conward, 171 <br>F.3d at 20. <br>  Costa Bros. seems to concede that, in the usual case, <br>this would be the proper focus.  Nevertheless, it maintains that <br>the appellants directed the lower court's attention to Piper and <br>Winters, and thus have waived the right to claim that the court <br>should have considered a broader array of hiring decisions.  We <br>examine this line of defense. <br>  In fairness, the appellants did place heavy emphasis on <br>the arrival of Piper and Winters.  Yet, we cannot say that they did <br>so to the exclusion of the broader comparative group.  The <br>appellants' complaint alleges, without limitation, that on three <br>dates in January 1996, "the defendant hired other outside white <br>employees for the mason positions previously held by plaintiffs."  <br>The appellants followed up on this averment in the course of <br>pretrial discovery; they sought the race and national origin of all <br>employees who were (a) laid off on December 7, 1995, and (b) hired <br>(or rehired) thereafter.  When Costa Bros. moved for summary <br>judgment, the appellants' opposition noted that "[d]efendant also <br>admits that numerous employees [who] were white and/or Portuguese <br>were hired at the project as masons," thus conceptualizing the <br>comparative group as comprising more than merely Piper and Winters.  <br>They also assailed the employer's contention that DaCosta had hired <br>his "own men," positing that this was not a legitimate, <br>nondiscriminatory reason for failing to recall the appellants <br>because this group included no minorities.  Finally, at oral <br>argument on the summary judgment motion, the appellants' counsel <br>attempted to focus the court on the issue of pretext, urging that <br>the "regular crew" and "special skills" explanations "weren't the <br>reasons that [DaCosta] wasn't hiring minorities"; that "when [Rose] <br>went back to this site the place was full . . . and none of the <br>faces that he saw on the job site when he returned there were any <br>employees he had seen previously"; and that "the reasons given [by <br>DaCosta] were false . . . . the whole place was re-employed and <br>[Piper and Winters] weren't the only [new] people." <br>  In sum, the appellants persistently attempted to refer <br>the district court to a larger comparative group.  The court, just <br>as persistently, refused to countenance such a comparison.  Waivers <br>are not lightly to be inferred, and in these circumstances, we are <br>reluctant to deprive the appellants of their day in court.  <br>Although the question is not free from doubt, we conclude that the <br>appellants adequately preserved the argument that the proper <br>comparative group consists of all workers recalled or hired during <br>December and January. <br>  We turn to this comparison.  Costa Bros. tries valiantly <br>to head off a detailed inquiry by insisting that, in the relevant <br>period, it hired only persons who had been part of its regular <br>complement.  Without more, this professed policy cannot justify the <br>entry of summary judgment.  Indeed, such a praxis   in DaCosta's <br>phrase, the exclusionary use of "my own men"   cuts both ways.  <br>Common sense teaches that when a work force is lily white (or <br>nearly so), practices that have the effect of excluding outsiders <br>may serve to discriminate against minorities in a devastatingly <br>effective manner.  Accordingly, the very existence of such a policy <br>sometimes constitutes evidence of discrimination.  See, e.g., EEOC <br>v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 606 (1st Cir. <br>1995); Thomas v. Washington County Sch. Bd., 915 F.2d 922, 925 (4th <br>Cir. 1990).  Given the contradictions and ambiguities that permeate <br>this record, the question of whether DaCosta's stated preference <br>for hiring "my own men" is a pretext for racial discrimination is <br>for the factfinder at trial, not for the judge on a Rule 56 motion. <br>  Costa Bros. also presses a "same actor" argument.  See <br>LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993).  It <br>observes that Ceribelli hired Rose and Gilbert on the basis of <br>friendship and suggests that declining to rehire them based on <br>racial animus makes no sense.  But it was DaCosta, not Ceribelli, <br>who rebuffed Rose and Gilbert when they applied for reinstatement.  <br>A jury rationally could conclude, therefore, that, in Ceribelli's <br>own words, he had "only hired a few minorities because of local <br>pressure," and that DaCosta   who owned the company   precluded any <br>further minority hiring once that pressure subsided. <br>  Having cut a passable swath through the tangle of <br>arguments advanced by the employer, we now focus on the adequacy of <br>the appellants' proof of pretext cum animus.  We previously <br>concluded that DaCosta's statements that (1) "I don't need <br>minorities, and I don't need residents on this job.  I got my men," <br>and (2) "I don't have to hire you locals or Cape Verdean people" <br>were amenable to differing interpretations, one benign and one <br>discriminatory.  See supra Part III(B).  Although this ambiguity <br>defeated the attempt to characterize the statements as direct <br>evidence (and thus defeated the claim that the lower court erred in <br>refusing to engage in a mixed-motive analysis), see id., the <br>question differs under pretext analysis. <br>  In that mode, an inquiring court does not ask whether the <br>plaintiff has adduced direct evidence of discrimination, but asks <br>instead whether the evidence presented, regardless of its <br>character, suffices to raise a genuine issue about the <br>pretextuality of the employer's explanation for the challenged <br>employment decision.  In the course of this latter exercise, the <br>court, at the summary judgment stage, must interpret the evidence <br>in the light most flattering to the nonmovant, resolving all <br>ambiguities in that party's favor.  See Conward, 171 F.3d at 18; <br>Pagano, 983 F.2d at 347.  Thus, the fact that DaCosta's comments <br>were susceptible to conflicting interpretations helps the <br>appellants at this juncture. <br>  To all intents and purposes, that ends the matter.  The <br>evidence that we recounted in connection with the appellants' prima <br>facie case suffices to put the question of pretext into issue, and <br>DaCosta's statements, taken in the light most favorable to the <br>appellants, add the necessary element of racial animus.  See  <br>Hodgens v. General Dynamics Corp., 144 F.3d 151, 171 (1st Cir. <br>1998)(citing cases).  In other words, there is room on this record <br>for a rational factfinder to infer that Costa Bros.'s failure to <br>recall the appellants was motivated by a proscribed racial animus <br>rather than by random availability of workers or loyalty to members <br>of its regular crew. <br>  If more were needed   and we doubt that it is   the <br>record is replete with other evidence that points to the same <br>conclusion.  For instance, Ceribelli, when asked why minority <br>workers had not been recalled, responded that Costa Bros. "had only <br>hired a few minorities because of local pressure."  In the same <br>vein, DaCosta's repeated allusions to "you guys" and terms of like <br>tenor reinforce the inference of racial animus.  Then, too, the <br>circumstances surrounding Fernandes's abortive return to work lend <br>further support. <br>  We glean another relevant item of proof from George <br>Medeiros's affidavit.  Medeiros, a white mason, had been laid off <br>along with the appellants on December 7.  Later that month, he <br>inquired about reinstatement.  According to Medeiros: <br>    Mr. Ceribelli told me to call Domingos DaCosta <br>  at the company office, and inform him that I <br>  am looking for work as a bricklayer and mason, <br>  and specifically inform him that I am a <br>  Mashpee resident and am white.  I did what Mr. <br>  Ceribelli asked me to, and the next day <br>  [December 15] was hired to work on the Mashpee <br>  High School Project. <br> <br>(Emphasis supplied.) <br>Although the appellants do not choose to catalog this statement as <br>direct evidence of racial discrimination   a choice on which we <br>take no view   we believe that it speaks volumes in a pretext <br>analysis.  We realize that a factfinder will have to pass upon <br>Medeiros's credibility, but that is precisely the point.  The <br>evidence, taken as a whole, creates a genuine issue of material <br>fact as to whether Costa Bros.'s explanations are canards, designed <br>to mask a discriminatory animus. <br>                     D.  The State-Law Claim. <br>  We need not separately discuss the merits of the <br>appellants' state-law claim.  The McDonnell Douglas framework <br>applies to disparate treatment claims brought under Chapter 151B, <br>but the appellants' burden is somewhat lighter in one respect.  <br>"While federal law requires a showing of pretext plus [racial] <br>animus, the Massachusetts courts appear, at the third step of the <br>pavane, to require a claimant to show only pretext."  Mullin, 164 <br>F.3d at 699 (citing Blare v. Husky Injection Molding Sys. Boston, <br>Inc., 646 N.E.2d 111, 116-17 (Mass. 1995)).  We already have <br>concluded that genuine issues of material fact exist as to whether <br>Costa Bros.'s stated reasons for its actions are a pretext for <br>discrimination.  See supra Part III(C).  A fortiori, we must reach <br>the same conclusion with respect to the appellants' state-law <br>claim.  See Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 26-27 <br>(1st Cir. 1998). <br>IV.  CONCLUSION <br>  We need go no further.  In the circumstances of this <br>case, sufficient evidence exists to permit a rational finder of <br>fact to infer that the employer's articulated reasons for not <br>rehiring the appellants are merely a coverup for racial <br>discrimination.  Consequently, we vacate the order granting summary <br>judgment and remand for further proceedings consistent herewith. <br> <br>Vacated and remanded.  Costs to appellants.</pre>

</body>

</html>

