August 31, 1995 [NOT FOR PUBLICATION]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