[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1049
PRIYA K. DAS,
Plaintiff, Appellant,
v.
CIBA CORNING DIAGNOSTICS CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Priya K. Das on brief pro se.
Edward N. Perry and Perkins, Smith & Cohen on brief for appellee.
June 8, 1993
Per Curiam. In 1988 Ciba Corning Diagnostics
Corporation ("Ciba") placed an advertisement seeking a
"manufacturing engineer-mechanical." Priya K. Das applied,
but was not hired, or, for that matter, granted an interview.
He sued Ciba alleging, under various legal theories,1 that
he was denied employment because of his age and national
origin. After some discovery, a hearing was held on the
parties' cross motions for summary judgment. The district
court granted summary judgment in Ciba's favor and also
allowed its motion for sanctions, fining Das $250. Das
appeals both rulings. Finding no error, we affirm.
BACKGROUND
The facts are essentially undisputed and we recount
them in a light favorable to the plaintiff.
The advertisement that gave rise to this litigation
described Ciba as a company engaged in medical diagnostics
and biomedical research. The ad stated: "We are looking for
an individual to provide mechanical engineering support to
the medical instrument assembly and test areas. . . . The
ideal candidate will have a B.S. in Mechanical Engineering
1. Das' suit alleged violations of Title VII, 42 U.S.C.
2000e et seq.; the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. 621 et seq.; and the Civil Rights Act
of 1866, 42 U.S.C. 1981. "[T]he standards of liability
under all [of these statutes] are substantially identical,"
Villanueva v. Wellesley College, 930 F.2d 124, 126 n.2 (1st
Cir.), cert. denied, 112 S. Ct. 181 (1991), and the district
court, accordingly, analyzed Das' claims collectively.
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and 3-5 years of experience in a manufacturing environment."
Of 57 applicants, Das and 53 others were not interviewed.
Born and educated in India, Das was 46 years of age at the
time. Ciba hired a younger candidate who possessed, like
Das, a B.S. in mechanical engineering, but had only three
years of work experience. Dissatisfied with the hiring
decision, Das wrote to Ciba for an explanation. The company
responded that Das' 25 years of experience were not a "good
fit" with the criteria set for the entry level position
advertised. This suit ensued.
In an affidavit supporting its motion for summary
judgment Ciba averred that Das' application was eliminated
because (1) the company was not interested in candidates who
changed jobs every two years: "Das' excessive `job hopping'
made him a very unattractive candidate," and (2) none of Das'
experience related to the medical or biomedical field. It
was attested that the hired candidate's hands-on experience
in plastics was the deciding factor in making a job offer due
to the increased use of plastic parts in the industry. As
such, the hiree possessed more relevant experience for the
advertised position under the hiring criteria then in place.
In opposition, Das pointed to his superior
education and experience which, he declared in an
accompanying affidavit, fully qualified him for the job. The
denial of employment because of his 25 years of experience
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shows, he asserted, that Ciba's selection process was
grounded in age bias. And, Das claimed, the fact that Ciba
later changed its story and offered a different rationale,
i.e., that he was a job-hopper, signified a cover-up of the
true reason for the hiring decision. According to Das, his
job changes were either for career advancement or the result
of layoffs, plant closings, and the like, all common
occurrences in manufacturing industries. Accordingly, the
job-hopper label was untrue, and merely a pretext for the
real reason: age discrimination.
Following a hearing, the district court ruled from
the bench that Das, in attacking the person hired as an
unqualified candidate, had failed to offer sufficiently
probative evidence from which a fact-finder could reasonably
infer that defendant's hiring reasons were a pretext for age
or national origin discrimination. Accordingly, Ciba's
motion for summary judgment was allowed, and Das' cross-
motion for summary judgment was denied.
DISCUSSION
I
This suit is virtually identical to three others
brought by Das after he was not hired for an advertised
engineer position solely because of the contents of his
resume. See Das v. Cri-Tech, Inc., No. 90-1769, slip op.
(1st Cir. Jun. 12, 1991) (Das I); Das v. Bowmar/Ali, Inc.,
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No. 90-2096, slip op. (1st Cir. Jun. 21, 1991) (Das II), and
Das v. A.W. Chesterton Co., No. 91-1159, slip op. (1st Cir.
Sept. 24, 1991) (Das III). Each prior appeal - - also from
an adverse summary judgment - - was affirmed on the basis
that Das had failed to present any probative evidence
permitting an inference that the hiring decision masked a
discriminatory motive or was otherwise incredible. In this
appeal, we focus, as does appellant, on the age
discrimination claim.
In Das I and Das II, we described the standards
applicable to summary judgment in the disparate treatment
employment discrimination context, and do not restate them.
See also Goldman v. First Nat'l Bank of Boston, 985 F.2d
1113, 1116-18 & n.4 (1st Cir. 1993). The Supreme Court has
recently clarified the standards for liability under the
ADEA. Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993).
The Court explained 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 1705; "a
disparate treatment claim cannot succeed unless the
employee's protected trait actually played a role in [the
employer's decisionmaking] process and had a determinative
influence on the outcome." Id. at 1706.
We assume, as did the district court, that Das
satisfied the prima facie rubric for hiring discrimination
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claims. Keyes v. Secretary of the Navy, 853 F.2d 1016, 1023
(1st Cir. 1988). Ciba clearly and sufficiently articulated
permissible non-discriminatory reasons for its hiring
decision, requiring Das to show that explanation "unworthy of
credence," that is, "not the true reason for the employment
decision." Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981).
We conclude, relying on the analysis set out in Das
II, that plaintiff failed to undercut the plausibility of
Ciba's proffered rationale with specific facts (and not
merely subjective conclusions) that would enable a jury to
find that age was an undisclosed, motivating factor in the
hiring decision. In so deciding, we note, first, that Das
has not attempted to counter Ciba's explanation that his
resume indicated no experience in the medical/biomedical
fields. Second, regarding Das' claim that Ciba "changed its
story" and later offered a different reason for not hiring
him, Das has failed to show that those later reasons were
premised upon discriminatory motive. As we have stated
before: "Since an employer's nondiscriminatory motivations
for adverse employment decisions are irrelevant in an age
discrimination case, a `mere showing that the employer's
articulated reason may shield another (possibly
nondiscriminatory) reason does not create a dispute of
material fact' sufficient to withstand summary judgment."
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Goldman, 985 F.2d at 1118 n.4 (quoting Villanueva v.
Wellesley College, 930 F.2d 124, 128 (1st Cir.), cert.
denied, 112 S. Ct. 181 (1991)).
Finally, Das stresses the role that his many years
in the field may have played in hurting his chances to get
the job. He argues that hiring criteria which impermissibly
favor a minimum number of years of work experience make age a
determining factor in the selection process and, because age
and experience are directly related, effectively eliminate
all applicants over 40 years of age. The Biggins decision is
instructive on this point. In deciding that a dismissal
based solely on pension status was not discriminatory
treatment on the basis of age for ADEA purposes, the Court
emphasized that "[b]ecause 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'." Biggins, 113 S. Ct. at 1707. Consequently,
the ADEA is not violated when the factor motivating the
employment decision merely correlates with age, i.e., gives
rise to a permissive and not a necessary inference. By like
token, having failed to show that age actually played a role
in the decision not to hire him, Das may not, under Biggins,
ask us to presume that the employer's decision to hire a
candidate with significantly less work experience is
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automatically age-based. As Biggins makes plain, even if, as
Das speculates, older workers are likely to have more years
of work experience, Ciba's decision to hire an engineer with
three years of desired experience does not, without more
evidence than is offered here, implicate the prohibitions of
the ADEA.2
II
We turn to the issue of sanctions. In Das II, we
upheld a $1420 award of attorneys' fees and costs against Das
under Fed. R. Civ. P. 11. Here, Ciba contended that Das had
violated Rule 11 by irresponsibly maintaining this action
after three similar (and similarly meritless) complaints
against other corporate defendants had been dismissed. Ciba
sought attorneys' fees and costs in excess of $12,000. The
district court found that Das' claims, filed in October 1989,
were brought in good faith and were objectively reasonable
until the filing of his cross motion for summary judgment one
year later. By that time, Das I and Das II had been
dismissed in the district court, and Das had reason to know
that his cross motion was neither well founded in fact nor
warranted in existing law. Taking into account Das' pro se
status, the court concluded that a $250 sanction was
2. Nor do we read Das' complaint to state a claim that
Ciba's facially neutral hiring practices impact older job
applicants more harshly. The Court has not recognized a
"disparate impact" theory of liability under the ADEA.
Biggins, 113 S. Ct. at 1706.
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appropriate. We find no abuse of discretion in this
carefully considered determination. Anderson v. Beatrice
Foods Co., 900 F.2d 388, 394 (1st Cir.) ("The trial judge is
best positioned to decide what sanction best fits a
particular case or best responds to a particular episode or
pattern of errant conduct."), cert. denied, 498 U.S. 891
(1990).
The defendant-appellee requests costs and
reasonable attorneys' fees for defending this appeal. When
Das, who has proceeded pro se throughout, noticed this appeal
in January 1992, he knew that the same arguments advanced now
had been rejected in Das I, Das II, and Das III and should
have realized that no valid grounds for appeal existed here.
Considering this litigation history, the frivolous nature of
this appeal, and taking into account Das' pro se status, we
assess double costs and damages in the amount of $500. Fed.
R. App. P. 38; see La Amiga del Pueblo, Inc. v. Robles, 937
F.2d 689, 692 (1st Cir. 1991); N.E. Alpine Ski Shops v. U.S.
Divers Co., 898 F.2d 287, 291 n.1 (1st Cir. 1990).
The judgment of the district court is affirmed;
double costs and $500 awarded to the appellee.
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