
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1683                                    DALE BRAMBLE,                                Plaintiff - Appellant,                                          v.                            AMERICAN POSTAL WORKERS UNION,                              AFL-CIO PROVIDENCE LOCAL,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Godbold,* Senior Circuit Judge,                                     ____________________                           and Barbadoro,** District Judge.                                            ______________                                _____________________               Kevin J. McAllister, with  whom Brennan, Recupero, Cascione,               ___________________             ____________________________          Scungio & McAllister was on brief for appellant.          ____________________               Paul F. Kelly,  with whom Anne R. Sills and Segal, Roitman &               _____________             _____________     ________________          Coleman were on brief for appellee.          _______                                 ____________________                                   January 27, 1998                                 ____________________                                        ____________________          *  Of the Eleventh Circuit, sitting by designation.          **  Of the District of New Hampshire, sitting by designation.                    TORRUELLA,  Chief  Judge.   Dale  F.  Bramble  sued his                    TORRUELLA,  Chief  Judge.                                ____________          employer, the American Postal Workers, AFL-CIO, Providence, Rhode          Island Area Local,  (the "Union") under the Age Discrimination in          Employment  Act of  1967 ("ADEA"),  29 U.S.C.     621-34,  in the          Federal  District Court  of Rhode  Island.   He alleges  that the          Union discriminated against  him on the basis of  his age when it          adopted  a new  salary structure  for his  office of  Local Union          President, effectively eliminating his  salary.  Bramble  brought          this suit under both a disparate treatment and a disparate impact          theory of  recovery.   The district court  dismissed the  case on          summary judgment  and  this  appeal  followed.   See  Bramble  v.                                                           ___  _______          American  Postal Workers Union, AFL-CIO,  963 F. Supp. 90 (D.R.I.          _______________________________________          1997).  We affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    The   following  facts   are  essentially   undisputed.          Bramble,  a  United  States  Postal  Service  ("Postal  Service")          worker, was first  elected to the Union presidency  in 1974.  For          eleven years thereafter, he held the post while working full-time          at the  postal service.   In 1985,  the Union  voted to  make the          presidency a full-time position.  The Union paid Bramble a $3,000          stipend plus the equivalent  of his old salary.  In  spite of the          fact  that he  was  no longer  drawing a  salary from  the Postal          Service,  Bramble maintained  his  status  as  an  active  Postal          Service employee as he continued to hold the presidency.                    In November 1991,  Bramble was re-elected as  the Union          president in a  close three-way race in which he garnered only 35                                         -2-          percent of the vote.  The year following his re-election, Bramble          accepted an early retirement package from the Postal Service.  At          that  point, Bramble began drawing  a federal pension in addition          to his full salary as Union president.                    In  January  1993,  with  the  majority  of  the  Union          opposing  Bramble's administration,  an  amendment to  the  Union          constitution  was adopted  by a  vote  of 34-23.   The  amendment          revised the salary structure of the Union presidency from a fixed          rate to a  rate that  was tied  to the president's  salary as  an          active Postal  Service employee.   According to this  "active pay          status" rate,  any Union president  receives a $3,000  stipend in          addition to the salary he or she would receive in accordance with          his or her active status with the Postal Service.1                    Pursuant to  the new  policy,  more experienced  postal          workers  serving as president  receive higher salaries  than less          experienced workers  holding the same position,  while presidents          who are retired or on disability receive a mere $3,000 in  annual          compensation.   Because  Bramble was retired,  the salary  he was          receiving in addition to the stipend was eliminated.   It is also          undisputed that  Bramble was disliked  by many in the  union, and          that  the amendment  was intended  by many,  if not  all, of  its          supporters as a means to force Bramble's resignation.  On July 1,          1993, Bramble did just that.                                        ____________________          1  The original amendment  to the Union constitution was somewhat          confusing,  but a subsequent amendment was adopted to clarify the          "active pay status" policy.  The district court opinion refers to          this  "active  pay status"  policy  as  the  "no loss,  no  gain"          amendment.  See Bramble, 963 F. Supp. at 93.                      ___ _______                                         -3-                    Two  weeks  later,  Bramble brought  this  suit  in the          Federal District Court of Rhode Island alleging that  the Union's          actions  amounted  to  a constructive  discharge  based  upon age          discrimination  in  violation  of  the  ADEA,  29 U.S.C.     626.          Bramble sued the Union in both its  capacity as an "employer" and          as a "labor  union" under the ADEA.   Bramble's amended complaint          employed both disparate  treatment and disparate  impact theories          of recovery.   In his disparate treatment  claim, Bramble alleges          that the  defendant used his eligibility for  retirement, a proxy          for  his  age, as  a  means to  force him  from  office.   In his          disparate  impact  claim,  Bramble alleges  that  the  new salary          structure is  a  policy which  disproportionately affects  people          protected by the ADEA.  The district court dismissed this case on          summary judgment, concluding that there was insufficient evidence          to create a genuine dispute as to whether the Union was motivated          by age-based  animus and  that business  necessity justified  the          Union's new policy.                                      DISCUSSION                                      DISCUSSION                                      __________          I.  Jurisdiction          I.  Jurisdiction                    As a  preliminary matter,  the Union  claims that  this          court does not have jurisdiction over this case because the Union          is  not covered  as  an "employer"  under the  ADEA, 29  U.S.C.            623(a).  An  employer is only subject  to the ADEA if  it employs          "twenty or more employees for each  working day in each of twenty          or more  calendar  weeks in  the  current or  preceding  calendar          year."  29  U.S.C.   630(b).  The  Union claims that  Bramble was                                         -4-          its only  true employee and that it is  thus outside the scope of          the ADEA.   This argument is  bolstered by an examination  of the          Union's W-3  forms, which  reveal that,  while over thirty  union          "employees" received some  form of compensation during  the years          at issue, almost all of  these "employees" received less than one          thousand  dollars per  year.    While this  fact  casts doubt  on          whether twenty or  more employees were actually engaged  in Union          work for each working day  in twenty or more calendar weeks,  the          record at this stage  of the case does not  contain any schedules          or time  sheets to indicate when  employees were at the  Union or          engaged in Union  duties.  Construing this limited  record in the          light most favorable to Bramble, we must conclude that there is a          genuine issue of material fact regarding the qualification of the          Union as an "employer" under sections 623(a) and 630.  Therefore,          it is premature for this court to declare that the district court          acted  without   proper  subject  matter  jurisdiction   when  it          considered the merits of this case for summary judgment purposes.                    Furthermore,  "'[i]t is a  familiar tenet that  when an          appeal presents a  jurisdictional quandry, yet the  merits of the          underlying issue,  if reached, will  in any event be  resolved in          favor of the party challenging the court's jurisdiction, then the          court may forsake the jurisdictional riddle and simply dispose of          the appeal on  the merits.'"  See  Rojas v. Fitch, 127  F.3d 184,                                        ___  _____    _____          187 (1st Cir. 1997) (quoting Hachikian  v. FDIC, 96 F.3d 502, 506                                       _________     ____          n.4 (1st Cir. 1996)).  In light of the fact that summary judgment                                         -5-          for the Union is affirmed  herein, we are not inclined  to remand          on jurisdictional grounds.                    The Union  also  argues  that it  is  not  required  to          conform  to  ADEA  requirements  because  it  is   not  a  "labor          organization" covered  by section   623(c).  A labor organization          under the ADEA represents employees of  a covered "employer," and          any  corporation  wholly  owned  by  the  federal  government  is          specifically excluded from the  ADEA's definition of  "employer."          See 29 U.S.C.   630(b).  However,  if the Union is subject to the          ___          requirements of the ADEA by virtue of its status as an "employer"                                                ___          under section  623(a) and is  being sued in that  capacity, it is          irrelevant  whether it also  qualifies as a  "labor organization"          under  section 623(c).   Thus, the Union's  second jurisdictional          argument has been mooted by  our finding that summary judgment on          the issue of subject matter jurisdiction would be premature.          II.  Disparate Treatment          II.  Disparate Treatment                    Review  of a district court's award of summary judgment          is de novo.   See United Nat'l  Ins. Co. v. Penuche's,  Inc., 128             _______    ___ ______________________    ________________          F.3d 28,  30 (1st Cir. 1997).   We view the entire  record in the          light most  hospitable to  the party  opposing summary  judgment,          indulging  all reasonable inferences in  that party's favor.  See                                                                        ___          Ahern v. O'Donnell, 109 F.3d 809, 811 (1st Cir. 1997).          _____    _________                    The ADEA was promulgated  by Congress out of a  concern          that   older   workers   were  being   deprived   of   employment          opportunities  due  to  inaccurate  stereotypes.    See  EEOC  v.                                                              ___  ____          Wyoming,  460 U.S.  226, 231  (1983).   To establish  a disparate          _______                                         -6-          treatment claim under the ADEA, an employee must show that he was          treated adversely because  of his age.  Mesnick  v. General Elec.                                                  _______     _____________          Co., 950 F.2d  816, 823 (1st  Cir. 1991), cert. denied,  504 U.S.          ___                                       ____________          985 (1992).  To survive summary judgment, the employee must first          either present  direct evidence of  discrimination or make  out a          prima facie case of discrimination, invoking the  burden-shifting          framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-                       _______________________    _____          05 (1973).  See Mesnick,  950 F.2d at 823.   In this case,  there                      ___ _______          was  no direct evidence  of discrimination.2   Therefore, Bramble          was required  to make out  a prima facie case  demonstrating that          (1) he was over the age of forty; (2) his work was sufficient  to          meet his  employer's  legitimate expectations;  (3) his  employer          took adverse  action against him;  and (4) the employer  sought a          replacement with  roughly  equivalent  job  qualifications,  thus          revealing a continued need for the same services and skills.  See                                                                        ___          id. (citing Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110 (1st          ___         ______    _________________          Cir. 1989)).                    Bramble's   claim   was   different   from   most   age          discrimination claims insofar  as he held an elected  office.  He                                                       _______          was  employed collectively by the union  members.  This obviously          complicated  Bramble's task  of showing discriminatory  animus on          the  part  of  his  employer.    The decision  to  constructively                                        ____________________          2  Bramble argues that some direct evidence of discrimination did          exist in  this case.   He  points to  a comment  made by a  union          member on  the floor  prior  to the  vote on  the amended  salary          structure,  referring to  Bramble  as  "the  retired  President."          However,  this  comment  plainly  provides  no  evidence  of  age          discrimination.                                         -7-          discharge Bramble was made by a majority of the 57 members of the          union electorate who  voted on the amendment, and,  as courts are          acutely aware, determining  the "motive" behind a  policy adopted          via popular vote is a monumental challenge.  See e.g., O'Brien v.                                                       ___ ____  _______          United States,  391 U.S.  367, 383-84  (1968) ("[i]nquiries  into          _____________          congressional motives or purposes are a  hazardous matter").  For          example,  the requirement that  Bramble's work be  "sufficient to          meet his employer's legitimate expectations" effectively became a          requirement that Bramble  be a successful  politician.  Here  was          where  Bramble's improbable effort to prove age discrimination on          the part of an entire union electorate ultimately failed.                    Dale Bramble  eventually  lost favor  with  his  Postal          Worker constituents.  Bramble's counsel  may have stated it  most          succinctly when he stated that "there were a lot of people in the          Union who did not  like him."  After nineteen years  as the Union          President,  Bramble's  counsel  explained,  he  had  made  enough          enemies that "[the Union]  wanted to get  rid of him for  several          reasons."   For over a  year, Bramble had continued  as President          after failing to win a majority in the presidential election, and          there is  no evidence  that his popularity  was increasing.   The          transcript of  the  Union  meeting at  which  the  amendment  was          adopted reveals that Bramble was perceived by  various members of          the  Union  as  being  insulated,  greedy,  uncommunicative,  and          generally untrustworthy.   It  is not  for this  or any  court to          determine the character of the plaintiff in this case, but  it is          relevant that the Union members were critical of their President.                                         -8-          None of the members who spoke out against Bramble on that evening          criticized him as being too old for his job.  In the face of this          evidence  that the majority of  the union members were displeased          with Bramble's presidency, and due to the lack of any evidence to          the  contrary, we reject Bramble's claims of disparate treatment.          In  essence, he failed  to establish a  key element of  his prima          facie   case  of  disparate  treatment  --  that  "his  work  was          sufficient to meet his employer's legitimate expectations."3                    Bramble argues that  even if the  Union wanted to  oust          him as president for reasons other than age, it violated the ADEA          when it implemented its new "active pay status" salary  plan.  He          alleges that the plan "constitutes a form of overt discriminatory          animus" because retirement status is  tied to age.   Essentially,          Bramble argues  that because  older people  are  the only  people          eligible for  retirement, and  because the  new salary  structure          would have the primary effect of discouraging retired people from          seeking the Union presidency, the  new salary structure is per se          age discrimination.   However,  Bramble's argument  fundamentally          misinterprets Hazen  Paper v. Biggens,  507 U.S. 604  (1993), the                        ____________    _______          most recent Supreme Court case on this issue.                    In  Hazen  Paper,  the  Court  considered  "whether  an                        ____________          employer violates  the ADEA by  acting on the basis  of a factor,          such  as  an  employee's pension  status  or  seniority,  that is          empirically correlated  with age."  Id.  at 608.  In  holding for                                              ___                                        ____________________          3   The Union has  since amended its  constitution to provide for          run-off elections so that no President will ever again be elected          without winning a majority vote.                                         -9-          the employer  in that case, the Court clarified that "there is no          disparate treatment under the ADEA when the factor motivating the          employer is some feature other than the employee's age."   Id. at                                                                     ___          609.  The reasoning behind the Court's decision was that "age and          years of  service are analytically distinct, an employer can take          account of one while ignoring the other, and thus it is incorrect          to  say that a decision based on  years of service is necessarily          'age based.'"  Id. at 611.                         ___                    Despite  Bramble's  attempts   to  distinguish  pension          status from "active pay status," the analysis under the ADEA must          be the same.  While retired postal workers likely outnumber those          postal workers on  disability or unpaid  leave, the fact  remains          that the  group  negatively affected  by  the active  pay  status          policy  is "analytically distinct"  from the group  of retirement          aged  postal employees.   In  other  words, there  is a  positive          correlation between active pay status and age,  but one is not an          exact proxy for the other.                    Hazen Paper explains that where  an employment decision                    ___________          is premised  upon  an age-correlated  but  analytically  distinct          factor, a  violation of the  ADEA has occurred  only if there  is          additional evidence that  the employer was  motivated by an  age-          discriminatory animus.  Id. at 612-13.  As discussed above, there                                  ___          is  no such  evidence in  this case.   The  plaintiff's disparate          treatment claim must fail.          III.  Disparate Impact          III.  Disparate Impact                                         -10-                    Bramble  also   claims  that  the  Union's  new  salary          structure has a "disparate impact" on older persons  in violation          of the ADEA.   A "disparate  impact" claim involves  "'employment          practices that are facially neutral in the treatment of different          groups  but  that in  fact fall  more harshly  on one  group than          another and cannot be justified by a business necessity.'"  Hazen                                                                      _____          Paper, 507 U.S.  at 609, quoting Teamsters v.  United States, 431          _____                    _______ _________     _____________          U.S.  324, 335-36,  n.15 (1977).    Statistics comparing  persons          holding at-issue jobs and composition of qualified job applicants          are commonly a basic component of  a disparate impact claim.  See                                                                        ___          Wards  Cove Packing  Co., Inc.  v. Atonio,  490 U.S.  642, 650-51          ______________________________     ______          (1989).  As the Supreme  Court has repeatedly reminded, there has          been  no  definitive  interpretation  of  the  applicability   of          disparate impact analysis to the ADEA.  See Hazen Paper, 507 U.S.                                                  ___ ___________          at 610;  Markham v. Geller,  451 U.S. 945 (1981)  (Rehnquist, J.,                   _______    ______          dissenting from denial  of certiorari).  Furthermore,  this Court          has never  addressed the question.   However, this case  does not          present  this  Court  with  a  proper occasion  to  take  up  the          question, because, even  assuming arguendo that these  claims are                                            ________          viable under  the ADEA, it  is plainly apparent that  Bramble has          insufficient evidence to support his claim.                    In this case,  the effect of the  questioned employment          practice has  not fallen on  a group at  all, but on  one person.          Only the president's salary was  modified by the amendment.  Thus          it is undisputed that the only person affected by the  active pay          status policy  was Bramble.   Where an employer targets  a single                                         -11-          employee and  implements a  policy which  has, to  date, affected          only that one employee, there is  simply no basis for a disparate          impact claim.                    Instead, it appears  that Bramble's  claim is  actually          prospective, i.e.,  he argues that  it is apparent "on  its face"          that  the  active  pay  status  policy will  have  a  foreseeable                                                 __________          disparate impact.   However, proper disparate impact  claims only          involve facially neutral policies.   See Hazen Paper, 507 U.S. at                           _______             ___ ___________          609.   Therefore, Bramble's disparate impact claim actually folds          into his failed disparate treatment claim.   See supra.  Thus, we                                                       ___ _____          need  not  address  whether  the  Union  had  shown  a  "business          necessity"  for its  new policy,  the issue  which  persuaded the          district court to grant summary judgment on this disparate impact          claim.  See Bramble, 963 F. Supp. at 98-102.                   ___ _______          IV.  Reasonable Notice          IV.  Reasonable Notice                    Bramble  argues  that  the district  court's  award  of          summary judgment failed to meet  the requirements of Fed. R. Civ.          P.  56(c) entitling  the party opposing  summary judgment  to ten          days notice and an opportunity to respond.  See Stella v. Town of                                                      ___ ______    _______          Tewksbury, 4  F.3d 53, 56  (1st Cir. 1993).   He argues  that the          _________          district court awarded  summary judgment on two grounds that were          not discussed  in  the Union's  Motion  for Summary  Judgment  --          namely  that there  was no  evidence of discriminatory  animus as          required  by Hazen  Paper and  that the  Union had  established a                       ____________          business  necessity  for  its  new  salary  structure.    Bramble          contends  that  the   ruling  thus  conflicted  with   the  well-                                         -12-          established principle that a trial court must give notice to both          parties of any issues it will be considering for summary judgment          that  exist outside of the  original Motion for Summary Judgment.          See Stella, 4 F.3d at 56.          ___ ______                    "'The purpose of  Rule 56 (c)  is to  allow a party  to          have a  meaningful opportunity  to challenge  a summary  judgment          motion.'"   Delgado-Biaggi v.  Air Transport Local  501, 112 F.3d                      ______________     ________________________          565, 567 (1st Cir. 1997)  (quoting C a. Petrolera Caribe, Inc. v.                                             ___________________________          Arco  Caribbean,  Inc.,  754  F.2d  404,  409  (1st  Cir. 1985)).          ______________________          Indeed, where  a party  did not have  an adequate  opportunity to          address the rationale behind the summary judgment in the district          court, we  will not address the substance of the claims on appeal          because "'leapfrogging to the merits would display  much the same          disregard for  established  protocol  that  marred  the  district          court's  performance.'"  Delgado-Biaggi, 112 F.3d at 568 (quoting                                   ______________          Stella, 4 F.3d  at 55).  However,  while a party must  receive an          ______          adequate  opportunity to  challenge  the  general  grounds  of  a          prospective award of  summary judgment, a party need  not have an          opportunity to  address every step  of the reasoning  employed or          every  case relied  upon by  the district court.   In  this case,          Bramble filed two  briefs over the course of two  months in which          he attempted  to distinguish Hazen  Paper, the case on  which the                                       ____________          district  court  and  this court  ultimately  rely  in dismissing          Bramble's  disparate treatment claim.  Since his disparate impact          claim  merely extends from this failed disparate treatment claim,          Bramble's  inability to successfully  distinguish Hazen Paper was                                                            ___________                                         -13-          fatal to  both claims.  Thus we reject Bramble's argument that he          was denied reasonable notice.                    For  the reasons  stated herein,  the district  court's          award of summary judgment is affirmed.                                       ________                                         -14-
