
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1929                                   PATRICK PERKINS,                                Plaintiff, Appellant,                                          v.                              BRIGHAM & WOMEN'S HOSPITAL                                         and                                   GEORGE H. KAYE,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                               Selya, Boudin and Lynch,                                    Circuit Judges.                                    ______________                              _________________________               Daniel S.  Sharp, with whom Elaine  Whitfield Sharp, Barbara               ________________            _______________________  _______          C.  Johnson, and  Whitfield  Sharp &  Sharp  were on  brief,  for          ___________       _________________________          appellant.               Richard P. Ward,  with whom  Bonnie B. Edwards  and Ropes  &               _______________              _________________      ________          Gray were on brief, for appellees.          ____                              _________________________                                    March 21, 1996                              _________________________                    SELYA, Circuit Judge.  In this case, Brigham &  Women's                    SELYA, Circuit Judge.                           _____________          Hospital  (the  Hospital)  allegedly   fired  plaintiff-appellant          Patrick Perkins, an African-American male,  because it discovered          that  he  had engaged  in  a despicable  pattern  of work-related          sexual harassment over a protracted  period of time.   Apparently          convinced  that the best defense is a good offense, Perkins sued.          Unimpressed by this effort to turn the tables, the district court          rejected  Perkins' claims  of  race-based  discrimination at  the          summary judgment stage.  On appeal, Perkins accuses  the court of          straying  down the wrong path.   Undertaking de  novo review, see                                                                        ___          Smith v. F.W. Morse & Co., ___ F.3d ___, ___ (1st Cir. 1996) [No.          _____    ________________          95-1556, slip op. at 29], we find no navigational error.          I.  BACKGROUND          I.  BACKGROUND                    We  depict  the  facts   (which  are  by  any  standard          unpleasant)  in  the  light   least  hostile  to  the  appellant,          consistent  with record  substantiation.   See, e.g.,  Garside v.                                                     ___  ____   _______          Osco  Drug,  Inc., 895  F.2d 46,  48 (1st  Cir.  1990).   In this          _________________          process,   we  weed   out  "conclusory   allegations,  improbable          inferences, and  unsupported speculation."   Medina-Munoz v. R.J.                                                       ____________    ____          Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).          ____________________                    The appellant worked at the Hospital as a  patient care          assistant.      He  garnered   generally   favorable  performance          evaluations  over a ten-year span,  but his record  was marred by          several  instances of  misconduct (which  led to  warnings and/or          suspensions).   In mid-1990 a more serious incident occurred:  in          the  dead of  night, the  appellant  invaded a  restricted lounge                                          2          where  two female  radiology  technicians  were sleeping  between          cases.   One woman claimed  that, upon awakening,  she discovered          the  appellant staring  at her  from the  foot of  her bed.   The          technicians  reported  the   occurrence  and  informed   Hospital          officials that the appellant had made sexual overtures to each of          them  on  prior  occasions.1     A  supervisor  added  background          information,  revealing that  the  appellant  habitually  uttered          "flirtatious statements."                    The  Hospital   moved  to  terminate   the  appellant's          employment in the wake of this episode but the in-house Grievance          Review  Board (the Board) reduced the proposed penalty to a four-          week suspension without pay.  Withal, the Board  acknowledged the          appellant's unfortunate penchant for making salacious comments to          female employees, and advocated "appropriate disciplinary action"          if this meretricious behavior continued.                    In November  of 1991    roughly seventeen  months after          his  nocturnal caper in  the technicians' lounge    the appellant          telephoned  a nurse  while she  was participating  in a  surgical          procedure and loudly warned her not to call him "Pat."  There was          a  history leading  up to this  call, and  the nurse  demanded an          investigation   of  what   she  described   as   the  appellant's          "harassment" of  her.   Perkins' supervisor,  an African-American                                        ____________________               1According to  one woman,  Perkins often  asked  her out  on          dates,  and  in  one instance,  when  she  replied  that she  was          married,  he retorted  that "I  don't want  your husband,  I want          you."   The other  woman  revealed that  when, in  the course  of          Perkins'  amorous  pursuit,  she  mentioned  her  gravidity,   he          responded:  "Pregnant women turn me on."                                          3          woman, suspended him pending further review of the incident.                    George  Kaye, the  Hospital's vice-president  for human          resources, considered the  nurse's complaint in conjunction  with          reports from operating room managers that the appellant continued          to engage  in  inappropriate sexual  banter and  innuendo.   Kaye          retained Nancy Avery, an independent social worker, to conduct an          inquiry.    The  Hospital   adopted  an  investigatory   protocol          calculated  to  provide  a  confidential forum  in  which  female          employees could  safely discuss  their experiences  vis-a-vis the          appellant.                    Avery's report  was  damning.   It  recounted  numerous          episodes  of unacceptable  behavior  involving the  appellant and          myriad female employees.   It  would serve no  useful purpose  to          take  a complete inventory of these tawdry vignettes.  Suffice it          to  say that the list  includes instances in  which the appellant          described his  sexual prowess  in explicit detail,  boasted about          the length  of  his  penis,  exposed  himself,  patted  a  female          employee's buttocks,  and proposed a menage-a-trois.   The report          also memorialized  the appellant's threats  to retaliate  against          women  who declined his advances by, for example, warning that he          would slash their  tires (and, in one case, that  he would not be          averse to attacking a woman in a garage).                    Kaye concluded  that the  appellant had engaged  in the          misconduct  described  by  Avery,  and  cashiered  him  effective          February  7,  1992.   This  time  the  Board,  after hearing  the          appellant's denial of the allegations, upheld his ouster.                                          4                    The  appellant brought  suit in  a Massachusetts  state          court charging  inter alia racial discrimination.2   The Hospital                          _____ ____          removed the case to a federal forum.  Discovery lasted for over a          year.   When the Hospital thereafter  requested summary judgment,          the district  court obliged.  Overriding  Perkins' objection, the          court ruled as a matter  of law that, although he had made  out a          prima  facie case  of racial  discrimination under  the McDonnell                                                                  _________          Douglas  burden-shifting model,  see McDonnell  Douglas Corp.  v.          _______                          ___ ________________________          Green,  411  U.S. 792,  802  (1973),  the Hospital  had  produced          _____          evidence of a legitimate, nondiscriminatory justification for the          discharge,  namely, the extensive  misconduct related  in Avery's          report, sufficient  to meet its  burden of production  under that          model; that the record revealed no evidence probative of pretext;          and that,  therefore, no rational factfinder  could conclude that          the  Hospital  dismissed Perkins  on account  of  his race.   See                                                                        ___          Perkins  v. Brigham & Women's  Hosp., Civ. No.  93-11701- DPW (D.          _______     ________________________          Mass. July 31, 1995) (D. Ct. Op.).                    In  this  appeal,  Perkins  abandons  several   of  his          original  initiatives  and concentrates  his  fire  on the  lower          court's  rejection  of  the   race  discrimination  claims.    He          maintains  that the  court  allowed brevis  disposition on  those                                              ______          claims    only   because   it   overlooked,   misconceived,   and          mischaracterized  the relevant  evidence,  and  then applied  the                                        ____________________               2The  appellant   named  both  Kaye  and   the  Hospital  as          defendants.    Because  Kaye's   liability  (if  any)  could  not          conceivably  be greater than the Hospital's, we treat the case as          if the Hospital were the sole defendant and appellee.                                          5          wrong analytic framework.          II.  ANALYSIS          II.  ANALYSIS                    We  begin our discussion of  the merits by noting that,          contrary to the appellant's  position, there is no insurmountable          obstacle  blocking  the  use  of  Fed.  R.  Civ.  P.  56  in  the          circumstances  of this case.  The function of summary judgment is          "to pierce  the  boilerplate  of  the  pleadings  and  assay  the          parties' proof  in order to  determine whether trial  is actually          required."  Wynne v. Tufts Univ. Sch. of Med., 976  F.2d 791, 794                      _____    ________________________          (1st Cir. 1992), cert. denied, 113 S. Ct. 1845 (1993).  Here, the                           _____ ______          record, fairly  read, contains no  sign that  the district  court          overlooked, misconceived, or  mischaracterized the evidence.   To          the  contrary,  as  the  district  court  concluded,  the  record          discloses  no genuine  issue as  to any  material event;  and the          undisputed facts, taken most  favorably to the appellant, confirm          that the  Hospital is entitled  to judgment as  a matter  of law.          See, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315          ___  ____  ________    ________________________          (1st  Cir. 1995)  (collecting  cases describing  summary judgment          standard);  see  also Medina-Munoz,  896  F.2d  at 8  (discussing                      ___  ____ ____________          propriety of summary judgment even when "elusive concepts such as          motive or intent" are at issue).                    We give  credit  where credit  is  due.   The  district          court's opinion  is both  meticulous and  scholarly.   It  treats          every  claim  and item  of evidence,  and closes  virtually every          avenue that Perkins tries  to travel on appeal.   Because that is                                          6          so, we resist the temptation to transpose into our own words what          has already been well expressed, preferring instead to affirm the          judgment essentially on the basis of the opinion below.  We pause          only to add punctuation in a few spots.3                                          A                                          A                    The  appellant's   principal  complaint  is   that  the          district court analyzed his  race discrimination claims under the          McDonnell  Douglas framework.   He  bases  this complaint  on his          __________________          assumption  that  the  record  contains  evidence  sufficient  to          warrant   deployment  of   the   somewhat   different   framework          constructed  by the Court in Price Waterhouse Co. v. Hopkins, 490                                       ____________________    _______          U.S.  228,  258  (1989)  (plurality  op.).4    When,  as  now,  a          plaintiff  alleges  disparate treatment,  he  ordinarily has  the          burden of proving that the defendant took  the adverse employment          action  (here, dismissal)  because  of a  protected trait  (here,          race).  The Price  Waterhouse framework, where applicable, shifts                      _________________          the burden of persuasion to the employer.                                        ____________________               3We think it is at least  arguable that the Civil Rights Act          of 1991, Pub. L. 102-166,   102, 105  Stat. 1071 (1991) (codified          at  42 U.S.C.     2000e-2000e-16), applies  in this  case.    But          neither  party  cited this  statute in  the district  court; that          court did not  refer to it in the opinion  below; and the parties          ignore it in their  appellate briefs.  Given this  background, we          do not base our decision on the 1991 Act (but we note that, if we          were to apply  it, the result that we reach  in this appeal would          not be affected).  By like token, given the circumstances of this          case,  we see  no need to  differentiate between  the appellant's          parallel claims of  race-based discrimination  under federal  and          state law, respectively.               4The  appellant does  not  contend that  the district  court          erred  in its performance of the McDonnell Douglas analysis, but,                                           _________________          rather, that the analysis should not have been performed at all.                                          7                     For  present   purposes,  we  need  not   explore  the          conditions under which  Price Waterhouse might apply.   The shift                                  ________________          in  the burden  of  persuasion contemplated  by Price  Waterhouse                                                          _________________          invariably  depends  upon a  plaintiff's  ability  to produce  or          proffer evidence of the  employer's discriminatory motive for the          adverse job action that  goes beyond the simple prima  facie case          showing  needed to  invoke McDonnell  Douglas (which,  when made,                                     __________________          requires  the  employer  to   provide     but  not  prove      an          explanation).  See, e.g., Fields v. Clark Univ., 966 F.2d 49, 51-                         ___  ____  ______    ___________          52 (1st Cir.  1992), cert. denied, 113 S. Ct. 976 (1993); Jackson                               _____ ______                         _______          v. Harvard Univ., 900 F.2d 464, 467 (1st Cir.), cert. denied, 498             _____________                                _____ ______          U.S, 848 (1990).                    Courts are in some  disarray as to the type and kind of          evidence  that  is  sufficient  to  bring  the  Price  Waterhouse                                                          _________________          framework  into play.5  Compare  Troupe v. May  Dept. Stores Co.,                                  _______  ______    _____________________          20 F.3d 734, 738 (7th Cir.  1994) with Ostrowski v. Atlantic Mut.                                            ____ _________    _____________          Ins.  Cos., 968  F.2d 171,  182 (2d  Cir. 1992).   In  this case,          __________          however, there is no reason to essay fine distinctions or seek to          clarify the Price Waterhouse  standard.  The evidence as  a whole                      ________________          simply will not support a  reasonable inference that the Hospital          discharged  Perkins because it harbored an  animus against him as          an African-American.  The extensive, point-by-point discussion of          the proof  in Judge  Woodlock's detailed opinion  renders further                                        ____________________               5The  Civil Rights Act  of 1991, see supra  note 3, does not                                                ___ _____          supply a ready means  of resolving this disagreement.   See Tyler                                                                  ___ _____          v.  Bethlehem Steel Corp., 958  F.2d 1176, 1182  (2d Cir.), cert.              _____________________                                   _____          denied, 506 U.S. 826 (1992).          ______                                          8          analysis on our  part supererogatory.   Because we  find in  this          record nothing remotely resembling  probative evidence of a race-          based animus, the appellant's claim fails.                                          B                                          B                    The  appellant attacks  the  lower court's  reliance on          affidavits supplied by three  female employees that contain lurid          firsthand accounts of his unsavory conduct.  The court considered          these  affidavits in determining that the Hospital had advanced a          nondiscriminatory rationale for its  actions.  See D. Ct.  Op. at                                                         ___          32.   The appellant  reasons  that, because  the affidavits  were          unavailable  to the Hospital at  the time it  discharged him, the          court could not mull them in analyzing the Hospital's motivation.          This anfractuous reasoning distorts the applicable legal rule.                    It is true that  an employer's proffered  justification          must be based on information that  it knew and relied upon at the          time  it  decided to  take the  adverse  employment action.   See                                                                        ___          McKennon v. Nashville Banner Pub. Co., 115 S. Ct. 879, 885 (1995)          ________    _________________________          (explaining  that  because  an  employee's  misconduct   was  not          discovered  until after  her discharge,  the "employer  could not          have been motivated  by knowledge it  did not have and  it [could          not] claim that the employee was fired for  the nondiscriminatory          reason");  Sabree v. United Bhd. of Carpenters, 921 F.2d 396, 403                     ______    _________________________          (1st Cir. 1990) (similar).   That is  to say, an employer  cannot          avoid liability in a discrimination case by exploiting a weakness          in an employee's credentials or performance that was not known to          the  employer at the time  of the adverse  employment action (and                                          9          that,  therefore,  could  not  have  figured  in  the  decisional          calculus).                    This rule is inapposite in the case at bar.  Though the          challenged affidavits did  not exist when the Hospital handed the          appellant his walking papers, the information that they contained          was known  to and fully absorbed  by the Hospital at  the time it          fired Perkins.  The  affiants had reported their  encounters with          the  appellant  to Avery,  their  stories  were  embodied in  her          report,  and  the  relevant  information was  factored  into  the          Hospital's decisional process.  Consequently, the court below did          not err in considering the affidavits.                                          C                                          C                    The  district court rejected the appellant's attempt to          show intentional discrimination by comparing his treatment at the          Hospital's  hands  with the  treatment  accorded  to a  Caucasian          clinical supervisor who was  also terminated for harassing female          co-workers.  See D. Ct. Op. at 38-42.  Perkins assigns error.  We                       ___          discern none.                    A  claim of  disparate  treatment based  on comparative          evidence  must  rest  on  proof that  the  proposed  analogue  is          similarly situated  in material respects.   See Morgan  v. Harris                                                      ___ ______     ______          Trust & Savs. Bank,  867 F.2d 1023, 1026 (7th Cir.  1989); Lanear          __________________                                         ______          v.  Safeway  Grocery,  843  F.2d   298,  301  (8th  Cir.   1988).              ________________          Accordingly,  the proponent  of the  evidence must show  that the          individuals  with whom he seeks  to be compared  have "engaged in          the  same  conduct  without  such  differentiating  or mitigating                                          10          circumstances  that  would  distinguish   their  conduct  or  the          employer's  treatment of them for it."  Mitchell v. Toledo Hosp.,                                                  ________    ____________          964  F.2d 577,  582  (6th Cir.  1992).   The  test  is whether  a          "prudent person,  looking  objectively at  the  incidents,  would          think  them roughly  equivalent  and the  protagonists  similarly          situated."  Dartmouth Review  v. Dartmouth College, 889 F.2d  13,                      ________________     _________________          19 (1st Cir. 1989).  While an exact correlation is not necessary,          the  proponent   must  demonstrate  that  the   cases  are  "fair          congeners."  Id. at 19.                       ___                    In  this instance, Judge Woodlock's opinion illustrates          beyond hope  of contradiction,  citing book  and verse,  that the          requisite similarities are lacking.  See D. Ct. Op. at 38-42.  We                                               ___          see no advantage  in repastinating soil already well ploughed and          instead  adopt Judge  Woodlock's characterization.    However, we          think  it wise to emphasize two aspects.  First, the Hospital had          good reason to believe that the clinical supervisor's misconduct,          while  reprehensible,  was   markedly  less   serious  than   the          appellant's  misconduct.   Second,  the supervisor    unlike  the          appellant     did not  have  a history  of  repeated disciplinary          actions over a ten-year period.          III.  CONCLUSION          III.  CONCLUSION                    We  return  to   the  point  of  our  beginning.    The          appellant's several efforts to mount an offensive (including some          initiatives  that  we  have  not discussed  here)  are  uniformly          unavailing.   The record  in this case simply  will not support a          reasonable inference  that the Hospital  discharged the appellant                                          11          because   it  harbored   an  animus   against  African-Americans.          Consequently, we need go no further.          Affirmed.          Affirmed.          ________                                          12
