Smith v. F.W. Morse Co., Inc.

March 8, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1556

KATHY SMITH,

Plaintiff, Appellant,

v.

F.W. MORSE & CO., INC.,

Defendant, Appellee.

ERRATA SHEET
ERRATA SHEET

The opinion of this court issued on February 12, 1996, is
corrected as follows:

On page 21, line 15, change "(1st Cir. 1995)" to "(1st Cir.
1996)"

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1556

KATHY SMITH,

Plaintiff, Appellant,

v.

F.W. MORSE & CO., INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Norman H. Stahl, U.S. District Judge]

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Debra Weiss Ford, with whom Edmond J. Ford, Eileen L.

Koehler, and Ford, Ford & Weaver, P.A. were on brief, for

appellant.
Raymond P. Blanchard, with whom Taylor, Keane & Blanchard,

P.A. was on brief, for appellee.

February 12, 1996

SELYA, Circuit Judge. In this appeal, the plaintiff
SELYA, Circuit Judge.

invites us to overrule the district court's adverse decision

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e-2000e-17 (1988) (Title VII), and to reinstate her common

law causes of action for breach of contract and wrongful

discharge. We decline the invitation in all its aspects.

I. BACKGROUND
I. BACKGROUND

We chronicle the events that preceded the filing of

suit and then recount what transpired thereafter.

A. Chronology of Events.
A. Chronology of Events.

Damar Plastics & Metal Fabricators, Inc. (Damar)

operated a job shop in Somersworth, New Hampshire, where it

crafted custom components for high-technology applications.

Plaintiff-appellant Kathy Smith joined Damar in 1976 and advanced

steadily through the ranks until she reached the position of

production manager almost a decade later. In that capacity,

Smith scheduled production runs and coordinated delivery dates.

In late 1987, after an imbroglio with Darrol Robinson (Damar's

owner and general manager), she requested and obtained

reassignment to a different post having no responsibility for

production scheduling.

On December 23, 1988, defendant-appellee F.W. Morse &

Co., Inc. (Morse), a firm owned by Chris Bond, acquired Damar's

business and assets. Damar then had fewer than forty employees,

including seven managers reporting directly to Robinson: Michael

Hickman (production control); Robert Lane (shipping); Ronald

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Paradis (production/machining); Marc Shevenell (production/sheet

metal); Gary Bickford (engineering); Michael Seeger (sales); and

Smith. Though not titled, Smith testified that she was

considered to be a de facto manager who, largely because of

Hickman's inadequacies, performed many of the duties of the

production control manager.

Bond promptly concluded that Damar had too many chiefs

and too few Indians. Within days of the closing, he fired

Hickman. Then, in concert with Maryann Guimond, the new general

manager (who had authority to hire, fire, and discipline

personnel), he interviewed a number of employees, including

Smith. In the aftermath of this review, the company cashiered

Lane. To fill the void created by the two executive-level

departures, Morse promoted Smith to the newly created position of

materials manager, consolidating responsibilities for scheduling,

production control, inventory control, purchasing, shipping, and

receiving that had previously been spread among three managers.

All told, Morse's initial reorganization efforts

substituted Guimond for Robinson and pared second-echelon

management from seven to five. In addition to Guimond, the

reconfigured management team comprised Paradis (machining);

Shevenell (sheet metal); Bickford (engineering); Seeger (sales);

and Smith (materials). In recognition of Smith's increased

responsibilities, Morse twice hiked her pay (once in January and

again in March), thus increasing her weekly stipend by roughly

twenty-five percent.

4

At about the time of the takeover, Smith informed Bond

that she had become pregnant and would need a maternity leave.

Morse, a tiny company, had no formal maternity leave policy.

Bond nonetheless honored Smith's request and assured her that her

position was "secure." In preparation for her leave, Smith held

several meetings with Guimond, Shevenell, and Paradis. The

company temporarily distributed her managerial duties among other

supervisors and arranged for a newly-hired secretary, Kelly

Gilday, to perform her clerical functions. Along the way,

Guimond informed Smith that either Paradis or Shevenell likely

would be discharged, and told her that she would be promoted

again upon her return from maternity leave. Guimond also

indicated that, in all probability, Bickford would be demoted,

and Smith would be asked to assume a portion of his duties.

While these changes presumably would warrant increased

remuneration, Guimond did not mention an amount.

On April 7, 1989, Smith began her maternity leave,

planning to return to work in approximately six weeks. She gave

birth two weeks later. Meanwhile, Guimond, expecting the "sky to

fall," held regular "reality check" meetings with Shevenell and

Paradis. To her surprise, the plant functioned very well.1

Guimond reported the good news to Bond.

Smith visited the plant on May 1 and informed Guimond

that she wished to return to work one week earlier than

1During this same time frame, the company eliminated the
engineering manager's position. However, Bickford remained with
Morse in a lesser capacity.

5

originally anticipated. Guimond inquired about whether Smith

desired more children, and Smith replied affirmatively. The

following day, Guimond queried Karen Vendasi, Smith's sister and

co-worker, about Smith's plans to have a larger family. Vendasi

relayed this conversation to Smith and told her of nascent rumors

to the effect that she might not return to work. Smith contacted

Guimond and demanded an explanation. Guimond denied any

knowledge of the rumors, dismissed them as idle buzznacking, and

again assured Smith that her job was secure. Guimond repeated

these assurances during a chance meeting on May 4.

A few days later, Guimond concluded that the materials

manager's position was superfluous and decided to eliminate it.

She told Smith of her decision on May 11. During this telephone

conversation, Guimond asked Smith if she preferred people to be

told that she had decided to stay at home with her infant child

rather than that she had been discharged. Smith rejected the

suggestion. Nevertheless, a Morse employee repeated this canard

to several customers.2

Following Smith's severance, Guimond gave most of her

duties to Paradis in his new capacity as operations manager.

Shevenell assumed the role of manufacturing manager (in charge of

both machining and sheet metal work). Guimond also promoted two

lower-ranking employees, Peter Lapanne and Brian Hoffman, to

assistant manager positions (though evidence adduced at trial

2The company reprimanded the employee and trial testimony
tended to establish that Morse had not authorized the comments.

6

demonstrated that Lapanne had been an assistant manager as far

back as 1984, and that neither man assumed any new

responsibilities or received any salary increase in connection

with his new title). Gilday continued to perform the clerical

functions associated with Smith's former position. When the

second round of the reorganization wound down, the plant had

three second-echelon managers Paradis (operations); Shevenell

(manufacturing); and Seeger (sales) in lieu of the original

seven.

B. Procedural History.
B. Procedural History.

Smith sued Morse in a New Hampshire state court

alleging, inter alia, wrongful discharge based on gender

discrimination, intentional infliction of emotional distress, and

breach of contract. Morse removed the case to federal district

court on the ground that Smith's claim "arose under" Title VII,

thus prompting federal question jurisdiction. See 28 U.S.C.

1331, 1343(c)(3), 1441, 1446; see also 28 U.S.C. 1367

(conferring ancillary jurisdiction over appended nonfederal

claims). Smith thereafter filed an amended complaint that made

her Title VII claim explicit.

Early in the proceedings, Morse moved for partial

summary judgment. The district court (Stahl, J.) granted the

motion on the common law wrongful discharge and emotional

distress claims. See Smith v. F.W. Morse & Co., No. 90-361-S,

slip op. at 12 (D.N.H. Sept. 26, 1991) (unpublished) (Smith I).

Several years later, the parties simultaneously tried

7

the Title VII claim to the bench (McAuliffe, J.) and the breach

of contract claim to a jury.3 At the close of the plaintiff's

case, the district court entered judgment as a matter of law in

the defendant's favor on the breach of contract claim and

disbanded the jury. The Title VII case proceeded before the

district judge. Morse asserted that it scrapped the materials

manager's position and laid off the appellant as part of an

overarching strategy to streamline a top-heavy managerial

structure, and that even if Smith had not been on maternity leave

she would have been flattened by the downsizing steamroller. The

district court agreed and entered judgment accordingly. See

Smith v. F.W. Morse & Co., 901 F. Supp. 40, 45 (D.N.H. 1995)

(Smith II). This appeal ensued.

II. THE TITLE VII CLAIM
II. THE TITLE VII CLAIM

The crown jewel of the appellant's asseverational array

is her contention that the district court erred in finding that

Morse did not discriminate against her on the basis of her sex.

Our appraisal of this contention is in three parts.

A. Standard of Review.
A. Standard of Review.

Following a bench trial, the court of appeals reviews

3The Civil Rights Act of 1991, Pub. L. 102-166, 102, 105
Stat. 1071, 1073 (1991) (codified at 42 U.S.C. 1981a(c)(1)),
authorizes trial by jury in Title VII cases. Since the events
that form the basis of the appellant's claim occurred prior to
the effective date of the 1991 Act, she had no right to a jury
trial on her Title VII claim. See Landgraf v. USI Film Prods.,

Inc., 114 S. Ct. 1483, 1487 (1994) (holding that the 1991 Act is

not retroactive). By like token, the Price Waterhouse framework

for proof of "mixed-motive" discrimination that we describe in
Part II(B), infra, is somewhat changed under the 1991 Act. See

Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995).

8

the trier's factual determinations for clear error, see Cumpiano

v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Fed.

R. Civ. P. 52(a), but affords plenary review to the trier's

formulation of applicable legal rules, see Johnson v. Watts

Regulator Co., 63 F.3d 1129, 1132 (1st Cir. 1995). The

jurisprudence of clear error constrains us from deciding factual

issues anew. See, e.g., Jackson v. Harvard Univ., 900 F.2d 464,

466 (1st Cir.), cert. denied, 498 U.S. 848 (1990); Keyes v.

Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir. 1988).

Indeed, we may not disturb the district court's record-rooted

findings of fact unless on the whole of the evidence we reach the

irresistible conclusion that a mistake has been made. See

Cumpiano, 902 F.2d at 152; RCI Northeast Servs. Div. v. Boston

Edison Co., 822 F.2d 199, 203 (1st Cir. 1987).

This deferential standard extends not only to factual

findings simpliciter but also to inferences drawn from the

underlying facts. See Cumpiano, 902 F.2d at 152. Similarly,

findings regarding an actor's motivation fall within the shelter

of Rule 52(a), and, therefore, if the trial court's reading of

the record on such an issue is plausible, appellate review is at

an end. See Foster v. Dalton,71 F.3d 52, 56-57 (1st Cir. 1995);

Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991).

B. The Jurisprudence of Title VII.
B. The Jurisprudence of Title VII.

Title VII provides, inter alia, that it is an unlawful

employment practice for an employer to discharge an individual

because of her sex. See 42 U.S.C. 2000e-2(a)(1). After the

9

Supreme Court held that this phraseology did not proscribe

discrimination on the basis of pregnancy, see General Elec. Co.

v. Gilbert, 429 U.S. 125, 145-46 (1976), Congress augmented Title

VII by enacting the Pregnancy Discrimination Act of 1978 (PDA),

Pub. L. 95-555, 1, 92 Stat. 2076, 2076 (1978) (codified at 42

U.S.C. 2000e(k)). The PDA made clear that:

The terms "because of sex" or "on the basis
of sex" include, but are not limited to,
because of or on the basis of pregnancy,
childbirth, or related medical conditions;
and women affected by pregnancy, childbirth,
or related medical conditions shall be
treated the same for all employment-related
purposes, including receipt of benefits under
fringe benefit programs, as other persons not
so affected but similar in their ability or
inability to work.

42 U.S.C. 2000e(k). Thus, at the time Smith and Morse parted

company, Title VII's ban on gender discrimination encompassed

pregnancy-based discrimination.

Like other Title VII plaintiffs, an employee claiming

discrimination on the basis of pregnancy may proceed under either

a disparate treatment or a disparate impact theory. See

generally Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579-

80 (1978) (explaining the dichotomy). Here, the appellant

alleged disparate treatment. Consequently, she had the burden of

proving that the defendant purposefully terminated her employment

because of her pregnancy.

In cases predating the Civil Rights Act of 1991, see

supra note 3, the framework for proving intentional

discrimination varies depending on the availability of direct

10

evidence. See Fields v. Clark Univ., 966 F.2d 49, 51-52 (1st

Cir. 1992), cert. denied, 113 S. Ct. 976 (1993); Cumpiano, 902

F.2d at 153. Absent the evidentiary equivalent of a "smoking

gun," the plaintiff must attempt to prove her case by resort to a

burden-shifting framework. See Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 254-56 (1981); McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). Under this framework, a

plaintiff can establish a prima facie case of pregnancy

discrimination by showing that (1) she is pregnant (or has

indicated an intention to become pregnant), (2) her job

performance has been satisfactory, but (3) the employer

nonetheless dismissed her from her position (or took some other

adverse employment action against her) while (4) continuing to

have her duties performed by a comparably qualified person. See,

e.g., Cumpiano, 902 F.2d at 153; Lipsett v. University of P.R.,

864 F.2d 881, 899 (1st Cir. 1988). Establishing the prima facie

case raises a rebuttable presumption that discrimination sparked

the adverse employment action, see Cumpiano, 902 F.2d at 153, and

imposes upon the employer a burden to put forward a legitimate,

nondiscriminatory motive for the action. See Burdine, 450 U.S.

at 254-55; Lipsett, 864 F.2d at 899. If the defendant clears

this modest hurdle, the presumption of discrimination vaporizes,

see Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir.

1991), cert. denied, 504 U.S. 985 (1992),4 and the plaintiff

4Mesnick is a case brought under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. 621-634, rather than under
Title VII. The same burden-shifting framework applies in both

11

(who retains the ultimate burden of persuasion on the issue of

discriminatory motive throughout) must then prove that the

employer's proffered justification is a pretext for

discrimination, see St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.

2742, 2749 (1993); Mesnick, 950 F.2d at 823-24.

On the relatively rare occasions when a smoking gun is

discernible that is, when a plaintiff produces direct evidence

that the protected characteristic was a motivating factor in the

employment action the McDonnell Douglas framework is

inapposite. See Fields, 966 F.2d at 52. In those cases, direct

evidence of discriminatory motive say, an admission by the

employer that it explicitly took actual or anticipated pregnancy

into account in reaching an employment decision serves to shift

the burden of persuasion from employee to employer. The latter

must then affirmatively prove that it would have made the same

decision even if it had not taken the protected characteristic

into account. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258

(1989) (plurality op.); id. at 265-67 (O'Connor, J., concurring).

The seeming neatness of this dichotomy is illusory in

certain respects, for evidence rarely comes in tidy,

geometrically precise packages. In many cases, the line between

McDonnell Douglas, on one hand, and Price Waterhouse, on the

other hand, is blurred. In those situations, classification

instances; therefore, ADEA cases have solid precedential value in
Title VII litigation. Hence, we cite herein interchangeably to
Title VII and ADEA cases, often without distinguishing between
them.

12

depends on both the quantity and quality of the proof that a

court deems sufficient to constitute direct evidence of

discriminatory animus.

Discretion is sometimes the better part of valor, and

courts often wisely decide to sidestep difficult theoretical

questions if answers to them are not essential to the proper

resolution of a given case. We have here a good example of such

a prudential approach. The trial court largely bypassed any

differential direct evidence/circumstantial evidence tamisage,

preferring to go directly to a finding that, on the totality of

the evidence presented, Morse had proven that gender

discrimination did not trigger the firing. See Smith II, 901 F.

Supp. at 44-45. This approach negates any need for us to pursue

the question of an analytic framework to a definite conclusion.

While we agree with our concurring colleague that the decisional

process is important, there comes a point at which slavish

insistence upon process for its own sake serves only to exalt the

trappings of justice over its substance. Here, the district

court's finding on causation, if sustainable, resolves the Title

VII claim whether the appellant's prima facie case arises under

the McDonnell Douglas or Price Waterhouse paradigm. And as we

illustrate below, see infra Part III(C), that finding passes

muster.

C. The Merits.
C. The Merits.

Consistent with the district court's approach, Morse

must be assumed to have had the burden of proving that it would

13

have taken the same action the elimination of the materials

manager's position whether or not the appellant became

pregnant, took a maternity leave, or planned to bear more

children. The court found that Morse carried the devoir of

persuasion on this pivotal issue. It concluded that Morse's

decision was "motivated by business judgment and represented an

effort to economize by placing the most qualified personnel in

the fewest number of managerial positions possible, and was not

based on plaintiff's gender, pregnancy, or her expressed desire

to have more children." Smith II, 901 F. Supp. at 44. The court

also concluded "that even if Guimond is assumed to have

considered impermissible gender-based factors, the same decision

to eliminate plaintiff's position would still have been made at

the same time" for reasons of business necessity. Id. The crux

of our inquiry is whether these findings are clearly erroneous.

There is little doubt that an employer, consistent with

its business judgment, may eliminate positions during the course

of a downsizing without violating Title VII even though those

positions are held by members of protected groups (pregnant women

included). See, e.g., LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,

844-45 (1st Cir. 1993), cert. denied, 114 S. Ct. 1398 (1994);

Goldman v. First Nat'l Bank, 985 F.2d 1113, 1118-19 (1st Cir.

1993); Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100,

105, 107 (2d Cir. 1989); Dister v. Continental Group, Inc., 859

F.2d 1108, 1115 (2d Cir. 1988); Pearlstein v Staten Island Univ.

Hosp., 886 F. Supp. 260, 268-69 (E.D.N.Y. 1995). This is merely

14

a reflection of a central theme that permeates the relevant

jurisprudence: insofar as Title VII is concerned, an employer

can hire or fire one employee instead of another for any reason,

fair or unfair, provided that the employer's choice is not driven

by race, gender, pregnancy, or some other protected

characteristic. See Foster, 71 F.3d at 56; Keyes, 853 F.2d at

1026; see also Freeman v. Package Mach. Co., 865 F.2d 1331, 1341

(1st Cir. 1988) (elucidating similar proposition in ADEA case).

The flip side of the coin, however, is that an employer who

selectively cleans house cannot hide behind convenient euphemisms

such as "downsizing" or "streamlining." Whether or not trimming

the fat from a company's organizational chart is a prudent

practice in a particular business environment, the employer's

decision to eliminate specific positions must not be tainted by a

discriminatory animus. See Goldman, 985 F.2d at 1118 n.4;

Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992);

Mesnick, 950 F.2d at 825; Pearlstein, 886 F. Supp. at 268-69.

Against this backdrop, we believe that the evidence

adequately supports the trial court's findings. When Morse took

over, Damar had an inordinately high ratio of managers to workers

and the managers' responsibilities overlapped.5 Both Bond and

Guimond testified that from the very start they believed that

Damar's sprawling organizational structure defied rhyme or

reason. Accordingly, they set out to compress some of the

5To cite an example, Damar split the responsibility for
manufacturing between two managers (Shevenell and Paradis), a
situation that, in appellant's own phrase, caused daily "chaos."

15

sprawl. The district court credited their intention, noting that

the witnesses' actions matched their stated objective. More to

the point, Guimond testified that she terminated the appellant

"because I had a position that I no longer felt needed to be

filled." Bond testified in the same vein, indicating that he,

too, had become convinced that Smith's position was expendable.

The court accepted this evidence, concluding that the materials

manager's position would have been eliminated within the same

time frame whether or not Smith had taken a maternity leave.

In our view, this determination, while not inevitable,

is supportable. In the first place, the record strongly suggests

that, in fact, the position was expendable. In the second place,

any other choice would have entailed a loss of engineering

expertise that Damar could ill afford.6 In the third place, the

court's view is bolstered by the reception that the appellant

originally received from the new ownership. Bond and Guimond

apprised her of the planned downsizing and assigned her

significant new responsibilities when other managers were

dismissed. They also promoted her and increased her

compensation. These actions, undertaken with full knowledge that

the appellant was pregnant and would be taking a six-week

maternity leave, are inconsistent with a bias against pregnant

6Bond testified that he purchased Damar to acquire its
engineering talents. Paradis and Shevenell were highly trained
and experienced engineers, while Smith had no such credentials.
When Morse discovered that it could function with one less
manager, the decision to retain Paradis and Shevenell, and
dismiss Smith, seems quite plausible.

16

employees. In the fourth place, the district judge, sitting as

the trier of fact, had the right to credit Bond's testimony that

the "maternity leave never played a role in itself" because the

same decision "would have been made in a very close time frame,"

and Guimond's testimony to like effect. In a bench trial, such

credibility judgments are the judge's prerogative. See Anthony,

952 F.2d at 606.

To be sure, the record could support a less innocuous

conclusion. The chronal proximity of Guimond's questions anent

Smith's plans to have more children and her dismissal, Guimond's

ill-advised suggestion that customers and employees be told that

Smith decided to stay at home to care for her daughter, and

Smith's termination while on maternity leave are troubling so

much so that we, if free to write a palimpsest, might have

characterized the impetus behind the appellant's ouster

differently. But whether the trial court could have drawn an

inference of discriminatory intent is not the test. See Foster,

71 F.3d at 55; Keyes, 853 F.2d at 1027. As long as a contrary

inference is also supportable and that is the situation here

then it is for the trial court, not the court of appeals, to call

the tune. After all, "when there are two permissible views of

the evidence, the factfinder's choice between them cannot be

clearly erroneous." Johnson, 63 F.3d at 1138 (citing Anderson v.

City of Bessemer City, 470 U.S. 564, 574 (1985)).

In an effort to evade the force of this principle, the

appellant hauls two further arguments from her bag. First, she

17

asseverates that Morse did not in fact eliminate her position,

and that the district court's contrary finding, see Smith II, 901

F. Supp. at 43, is itself clearly erroneous. This asseveration

leads down a blind alley.

When an employer defends an employment discrimination

case on the ground of position elimination, the position may not,

like a Dali painting, fade from one image to another only for the

first image to reemerge at the blink of an eye. See Gallo v.

Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219,

1226-28 (2d Cir. 1994); LeBlanc, 6 F.3d at 846; Barnes v. GenCorp

Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878

(1990). Yet, a position elimination defense is not defeated

merely because another employee, already on the payroll, is

designated to carry out some or all of the fired employee's

duties in addition to his own, or because those duties are

otherwise reallocated within the existing work force. See

LeBlanc, 6 F.3d at 846; Barnes, 896 F.2d at 1465. The

elimination of a position signifies the employer's belief that it

can get by with one less helper; it does not necessarily convey a

belief that the work the employee had been doing was superfluous

and need not be performed at all.

Here, the undisputed evidence before the district court

indicates that after Guimond dismissed Smith, the position that

Smith had occupied materials manager fell into desuetude.

There is no basis in the record for a suggestion that Lapanne or

Hoffman assumed any of the appellant's former duties; those

18

duties, which Paradis, Shevenell, and Gilday had performed during

Smith's leave, continued to be performed by them (or, at least,

by Paradis and Gilday). In short, the second round of the

reorganization (which cost Smith her job) bore a striking

resemblance to the first round (which gave Smith her promotion to

materials manager). Given these facts, the district judge's

determination that Morse eliminated the appellant's position is

unimpugnable.

The appellant next endeavors to surmount the sharp

escarpment of the clearly erroneous rule by casting a hook at the

legal standard applied by the trial court. This is a

theoretically sound way to climb the mountain, see, e.g.,

Reliance Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d

575, 577 (1st Cir. 1989) (explaining that appellate courts review

questions of law de novo, even after a bench trial), but in this

case the hook does not hold. The appellant's thesis is as

follows. She says that Title VII prohibits an employer from

dismissing an employee while she is on maternity leave even if

the employer, in the process of rationalizing its work force,

discovers that her position is redundant and eliminates it for

that reason.

Refined to bare essence, this thesis suggests that,

since Morse would not have discovered the redundancy at that time

(if ever) but for the fact that Smith took a maternity leave, the

19

leave brought about the firing.7 And the appellant attempts to

drive this point home by citing Bond's testimony that "because"

Smith was out on maternity leave, Morse was able to discover that

her position was expendable testimony which the appellant

optimistically equates with an admission that Morse dismissed her

"because" of her pregnancy. With respect, we believe that this

argument, which seeks to apply a black-letter legal principle in

a totally mechanical fashion, plays mischievously on the

mendacity of language by substituting sound for sense.

It is settled under Title VII that an employer may not

discharge an employee based on the categorical fact of her

pregnancy. See Newport News Shipbuilding & Dry Dock Co. v. EEOC,

462 U.S. 669, 684 (1983); Cumpiano, 902 F.2d at 153. By the same

token, since a short-term inability to work is bound up with the

very nature of pregnancy and childbirth, that disability is a

pregnancy-related condition within the meaning of 42 U.S.C.

2000e(k), and Title VII thus prohibits an employer from

dismissing an employee in retaliation for taking an authorized

maternity leave. Nevertheless, under the PDA, pregnancy does not

confer total immunity.8 An employer may discharge an employee

7We note in passing that the appellant's reasoning is
hopelessly circular. Morse demonstrated a firm commitment to
downsizing and actively sought ways to streamline its operations.
Consequently, there is no basis for surmising that Morse would
have failed to realize that the materials manager's position was
superfluous whether or not Smith took a maternity leave.

8We stress that this case is brought pursuant to, and is
governed by, Title VII. If the recently enacted Family and
Medical Leave Act of 1993, P.L. 103-3, 107 Stat. 6 (1993)
(codified at 29 U.S.C. 2601-2654) were applicable, a different

20

while she is pregnant if it does so for legitimate reasons

unrelated to her pregnancy. See, e.g., Troupe v. May Dept.

Stores Co., 20 F.3d 734, 738 (7th Cir. 1994); Pearlstein, 886 F.

Supp. at 268-69; see also Lipsett, 864 F.2d at 899 (holding that

an employer may dismiss an employee who is in a protected class

for a nondiscriminatory reason); Johnson v. Allyn & Bacon, Inc.,

731 F.2d 64, 70 (1st Cir. 1984) (similar). It follows, then,

that an employer may discharge an employee while she is on a

pregnancy-induced leave so long as it does so for legitimate

reasons unrelated to her gravidity.

Harmonizing these principles leads to the following

conclusions. Title VII mandates that an employer must put an

employee's pregnancy (including her departure on maternity leave)

to one side in making its employment decisions but the statute

does not command that an employer bury its head in the sand and

struthiously refrain from implementing business judgments simply

because they affect a parturient employee. See Troupe, 20 F.3d

at 738 (holding that the PDA "requires the employer to ignore an

employee's pregnancy, but . . . not her absence from work");

Crnokrak v. Evangelical Health Systems Corp., 819 F. Supp. 737,

743 (N.D. Ill. 1993) (stating that "the PDA does not force

employers to pretend that absent employees are present whenever

their absences are caused by pregnancy"). At bottom, Title VII

requires a causal nexus between the employer's state of mind and

the protected trait (here, pregnancy). The mere coincidence

set of rules would obtain.

21

between that trait and the employment decision may give rise to

an inference of discriminatory animus, see St. Mary's, 113 S. Ct.

at 2747, but it is not enough to establish a per se violation of

the statute (at least when, as now, the justification advanced by

the employer in support of the employment decision is on its face

legitimate and nondiscriminatory).9

To sum up, an employee (pregnant or not) runs a risk of

suffering the ordinary slings and arrows that suffuse the

workplace every day she goes to work and every day she stays

away. Title VII is neither a shield against this broad spectrum

of employer actions nor a statutory guaranty of full employment,

come what may. Applying the PDA as the appellant asks would

eliminate an employer's business necessity defense long

recognized under Title VII and cripple industry's ability to

manage workers in keeping with nondiscriminatory considerations.

That is not the law. See Bowen v. Valley Camp of Utah, Inc., 639

F. Supp. 1199, 1204 (D. Utah 1986) (explaining that Title VII, as

amended by the PDA, does not "preclude an employer from

articulating legitimate nondiscriminatory reasons for terminating

a woman while she was on maternity leave"); see generally Blackie

9Say, for example, a Jewish employee, in charge of
maintaining corporate records, stays home for a week to observe
Passover. In her absence, her employer rummages through the file
drawers that she maintains in search of a particular memorandum.
The employer finds a packet of heroin. The employer would not
have had the occasion to look through the file drawers but for
the fact that the employee was on religious leave; he would
simply have asked the employee for the memo. In such
circumstances, we think it is clear that the employer can fire
the employee for introducing drugs into the workplace without
violating Title VII's ban on religious discrimination.

22

v. Maine, F.3d , (1st Cir. 1996) [No. 95-1777, slip

op. at 13] (suggesting, in retaliation case, that "[a] contrary

rule would mummify the status quo").

Here, the district court found the requisite nexus

lacking between the employer's mindset and the employee's

gravidity. In the court's estimation, Morse discharged the

appellant for nondiscriminatory reasons. The record permits that

view of the facts. That the discharge took place while the

appellant was on maternity leave possessed considerable

evidentiary significance but that circumstance neither

transformed the character of the employer's action nor rendered

it per se unlawful under Title VII. The district court therefore

did not apply an erroneous legal standard.

III. THE BREACH OF CONTRACT CLAIM
III. THE BREACH OF CONTRACT CLAIM

We turn now to the appellant's partially tried breach

of contract claim. At the close of her case, the trial court

took this claim from the jury and directed a verdict in Morse's

favor. The appellant assigns error.

A. Standard of Review.
A. Standard of Review.

The court of appeals reviews the grant of a motion for

judgment as a matter of law de novo, applying the same legal

principles that inform the trial court's ruling. See Rolon-

Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir.

1993). Accordingly, we "examine the evidence and the inferences

reasonably extractable therefrom in the light most hospitable to

the nonmovant." Fashion House, Inc. v. K Mart Corp., 892 F.2d

23

1076, 1088 (1st Cir. 1989). If the proof, eyed from this

standpoint, permits a reasonable factfinder to reach only a

conclusion favorable to the movant, then the court must remove

the issue from the jury's consideration. See id.

While this approach does not allow the court to

"consider the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of the evidence," Wagenmann v.

Adams, 829 F.2d 196, 200 (1st Cir. 1987), neither does it pave

the way for every case, no matter how sketchy, to reach the jury.

Thus, "a mere scintilla of evidence is not enough to forestall a

directed verdict, especially on a claim or issue as to which the

burden of proof belongs to the objecting party." Fashion House,

892 F.2d at 1088.

B. The Merits.
B. The Merits.

The parties who concur on very little else agree

that New Hampshire law governs the breach of contract claim.

Under that law, the at-will status of an employment relationship

is "one of prima facie construction." Panto v. Moore Business

Forms, Inc., 547 A.2d 260, 267 (N.H. 1988). That is to say,

unless an employment relationship explicitly provides for a

definite duration, it is presumed to be at-will. See Butler v.

Walker Power, Inc., 629 A.2d 91, 93 (N.H. 1993) (explaining that

the at-will presumption "is a gap filler for determining duration

when the parties' contract of employment is silent as to its

expiration"). This is critically important when an employee

challenges her ouster; an employer can give an at-will employee

24

even one who has been a stellar performer her walking papers at

any time, for any reason or no reason, unless a statute, a

collective bargaining agreement, or some aspect of public policy

proscribes firing the employee on a particular basis. See Panto,

547 A.2d at 267.

Of course, an employer and an employee may alter the

at-will status of the employment relationship. See Butler, 629

A.2d at 93; Panto, 547 A.2d at 267. Such a modification

sometimes may be accomplished if the employer makes a binding

offer that the employee can accept by remaining on the job. See

Panto, 547 A.2d at 265. Standard contract formation principles

govern the creation and construction of such contracts. See id.

at 264. Thus, the "offer must be so definite as to its material

terms or require such definite terms in the acceptance that the

promises and performances to be rendered by each party are

reasonably certain." Chasan v. Village Dist. of Eastman, 523

A.2d16, 21 (1986) (quoting Restatement of Contracts 32 (1932)).

Definiteness, like beauty, is frequently in the eye of

the beholder. At best, it involves matters of degree. In the

last analysis, the standard is reasonable certainty, not

mathematical precision. See Sawin v. Carr, 323 A.2d 924, 926

(N.H. 1974). The provisions of a contract need only be

"sufficiently certain to allow claims of breach to be resolved

readily, and to enable a reasonably certain computation of

damages." Panto, 547 A.2d at 264 (internal citations omitted);

accord Phillips v. Verax Corp., 637 A.2d 906, 910 (N.H. 1994);

25

Sawin, 323 A.2d at 926.

In this instance, the appellant takes bits and pieces

of various conversations that she had with Guimond and Bond,

pastes them together, and argues that a rational jury, mulling

the ensuing patchwork, could conclude that Morse offered to

reinstate and promote her following her maternity leave. By

continuing her employment in the wake of such promises, her

thesis runs, she accepted the offer. The district court did not

buy the patchwork, remarking in its ore tenus ruling that "the

promises described by the evidence are of insufficient

definiteness to be enforceable, do not modify the at-will

employment relationship, [and are such] that any calculation of

damages or any identification of breach would be impracticable if

not impossible." We agree with the lower court that the terms of

the alleged contract are too indefinite to raise a jury question.

We start by attempting to decipher the true nature of

the appellant's claim. Her lawyers tell us that the disjointed

statements made to her (e.g., "don't worry, we will manage while

you are on maternity leave, your job is secure," "you will assume

more responsibilities on your return," you are "wanted back")

created a contract to reinstate her following the completion of

her maternity leave. Yet, the appellant concedes that Bond's and

Guimond's statements did not alter the durational component of

the at-will employment relationship. A contract to reinstate an

at-will employee to an at-will position (from which she could

immediately be removed without cause) is no contract at all. See

26

Light v. Centel Cellular Co., 883 S.W.2d 642, 645 n.5 (Tex. 1994)

(holding that, as long as the at-will character of the employment

relationship remains unchanged, any "promise made by either

employer or employee that depends on an additional period of

employment is illusory because it is conditioned upon something

that is exclusively within the control of the promisor"); E.

Allan Farnsworth, Contracts 2.13, 2.14 (2d ed. 1990)

(explaining that promises to maintain an at-will relationship are

illusory); cf. Butler, 629 A.2d at 94 (terming an analytically

equivalent argument "a thin reed").

Nor is this the only shortcoming in the supposed

contract for reinstatement. The evidence also fails to establish

either the nature of the position Smith was to assume or her

proposed rate of pay. These gaps seemingly foreclose a

reasonably certain computation of damages.

Concluding, as we do, that the alleged contract for

reinstatement is too indefinite to be actionable does not end

this phase of our inquiry. In stark contrast to the

reinstatement theory proffered by her counsel, the appellant's

own testimony indicates that she understood the statements made

to her as promises of employment "indefinitely," and as

constituting an abiding "commitment to a permanent position with

F.W. Morse that would never end." If, by this, she means to

suggest a contract for lifetime employment, her claim also

founders.

Although tangentially related New Hampshire precedents

27

exist, the state supreme court has not explicitly addressed the

contours of contracts for lifetime employment. We are

nonetheless confident that the court would adopt the prevailing

view of such matters. See generally Kathios v. General Motors

Corp., 862 F.2d 944, 949 (1st Cir. 1988) (explaining that a

federal court, called upon to determine state law in the absence

of direct in-state precedent, may look, inter alia, to cases in

other jurisdictions); Moores v. Greenberg, 834 F.2d 1105, 1107

(1st Cir. 1987) (similar). That view regards such contracts as

out of the ordinary, and insists that an offer for lifetime

employment must be expressed in clear and unequivocal terms to be

enforceable. See, e.g., Williamson v. Sharvest Mgmt. Co., 415

S.E.2d 271, 274 (W. Va. 1992); Rowe v. Montgomery Ward & Co., 473

N.W.2d 268, 273 (Mich. 1991); Vance v. Huff, 568 So.2d 745, 749

(Ala. 1990); Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 381-

82 (N.J. 1988); Degen v. Investors Diversified Servs., Inc., 110

N.W.2d 863, 866 (Minn. 1961). Measured by this yardstick, the

representations made by Morse do not stand sufficiently tall to

confer lifetime employment. See, e.g., Williamson, 415 S.E.2d at

275-76 (finding employer's statement that it would "take care of"

employee insufficiently definite to alter at-will employment);

Skagerberg v. Blandin Paper Co., 266 N.W. 872, 874 (Minn. 1936)

(finding that the terms "permanent employment," "life

employment," and "as long as the employee chooses" established

only an at-will contract); Aberman v. Malden Mills Indus., Inc.,

414 N.W.2d 769, 771-72 (Minn. Ct. App. 1987) (concluding that the

28

statement "we are offering you security" only indicated an at-

will employment relationship).

IV. THE WRONGFUL DISCHARGE CLAIM
IV. THE WRONGFUL DISCHARGE CLAIM

The district court terminated the appellant's wrongful

discharge claim in advance of trial under the aegis of Fed. R.

Civ. P. 56. The appellant presses her objection.

A. The Summary Judgment Standard.
A. The Summary Judgment Standard.

The Civil Rules empower a court to grant summary

judgment "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). We have explored

the nooks and crannies of this rule in a compendium of cases,

see, e.g. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-

15 (1st Cir. 1995); National Amusements, Inc. v. Town of Dedham,

43 F.3d 731, 735 (1st Cir.), cert. denied, 115 S. Ct. 2247

(1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Wynne

v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793-94 (1st Cir.

1992), cert. denied, 113 S. Ct. 1845 (1993); United States v. One

Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.),

960 F.2d 200, 204 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d

112, 115-16 (1st Cir. 1990); Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 7-8 (1st Cir. 1990); Garside v. Osco

Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. 1990), and it would

serve no useful purpose to rehearse that jurisprudence here.

29

For the nonce, we think it is sufficient to repeat that

"summary judgment's role is to pierce the boilerplate of the

pleadings and assay the parties' proof in order to determine

whether trial is actually required." Wynne, 976 F.2d at 794.

Thus, a Rule 56 motion may end the case unless the party opposing

it can identify a genuine issue as to a material fact. In this

regard, "genuine" means that the evidence on the point is such

that a reasonable jury, drawing favorable inferences, could

resolve the fact in the manner urged by the nonmoving party. See

One Parcel, 960 F.2d at 204. By like token, "material" means

that a contested fact has the potential to alter the outcome of

the suit under the governing law if the dispute over it is

resolved favorably to the nonmovant. See id.

When the summary judgment record is compiled the trial

court must scrutinize it "in the light most hospitable to the

party opposing summary judgment, indulging all reasonable

inferences in that party's favor," Griggs-Ryan, 904 F.2d at 115,

but disregarding "conclusory allegations, improbable inferences,

and unsupported speculation," Medina-Munoz, 896 F.2d at 8. If no

genuine issue of material fact is discernible, then brevis

disposition ordinarily follows.

Because the summary judgment standard requires legal

reasoning as opposed to differential factfinding, appellate

review of summary judgment orders is plenary. See Pagano, 983

F.2d at 347; Garside, 895 F.2d at 48.

B. The Merits.
B. The Merits.

30

New Hampshire law controls Smith's pendent wrongful

discharge claim. Under that law, even an at-will employee cannot

be cashiered for a reason that offends public policy because such

an employment decision "is not in the best interest of the

economic system or the pubic good and constitutes a breach of the

employment contract," Monge v. Beebe Rubber Co., 316 A.2d 549,

551 (N.H. 1974). The appellant urges that her severance offended

the state's policy against gender-based discrimination. In the

court below, Judge Stahl ruled that when a statutory remedy is

available, New Hampshire courts would not entertain a complaint

that an at-will employee had been wrongfully discharged in

violation of public policy. Therefore, the appellant's common

law claim for wrongful discharge failed because pregnancy

discrimination is redressable under Title VII. See Smith I, slip

op. at 9-10.

In reaching this conclusion, the district court drew

heavily upon the teachings of Howard v. Dorr Woolen Co., 414 A.2d

1273 (N.H. 1980). The appellant strives to convince us that a

later New Hampshire case, Cloutier v. Great Atlantic & Pacific

Tea Co., 436 A.2d 1140 (N.H. 1981), defenestrates the district

court's reading of Howard. We are not persuaded.

In Howard, the plaintiff alleged that he had been

discharged because of age. The New Hampshire Supreme Court

construed its seminal decision in Monge, 316 A.2d 549, "to apply

only to a situation where an employee is discharged because he

performed an act that public policy would encourage, or refused

31

to do that which public policy would condemn." Howard, 414 A.2d

at 1274. A discharge due to age fell outside this "narrow

category" inasmuch as the "proper remedy for an action for

unlawful age discrimination is provided for by statute." Id.

(listing state and federal statutory remedies). In Cloutier, the

court synthesized these cases, holding that to come within the

judicially created public policy exception a plaintiff "must show

that the defendant was motivated by bad faith, malice, or

retaliation in terminating [her] employment," 436 A.2d at 1143,

and must also "demonstrate that [s]he was discharged because

[s]he performed an act that public policy would encourage, or

refused to do something that public policy would condemn," id. at

1144. Cloutier did not answer, however, the question of whether

such a cause of action lies where, as here, the public policy at

stake is codified in a statute that itself provides a private

right of action to remedy transgressions.10

A recently decided case makes the import of the state

supreme court's earlier decisions pellucid and speaks directly to

10In Cloutier, the defendant argued that there must be a

statutory expression of a public policy, and that a generalized
assertion of a public policy (loosely based on a federal statute)
is insufficient as a matter of law to meet the public policy
prong of a wrongful discharge claim. See Cloutier, 436 A.2d at

1144-45. The court disagreed, observing that it had "not
restrict[ed the] holding in Howard to situations involving a

public policy enunciated in a statute. Public policy exceptions
giving rise to wrongful discharge actions may also be based on
non-statutory policies." Id. at 1144. This language means no

more than that a plaintiff can utilize a statutory provision to
prove the existence of a public policy; it does not address the
more sophisticated issue of whether a plaintiff may rely on a
statute that provides a remedy for its violation.

32

the question that confronts us here. In Wenners v. Great State

Beverages, Inc., 663 A.2d 623 (N.H. 1995), the plaintiff relied

on a section of the Bankruptcy Code to establish a public policy

against the termination of his employment. See id. at 625. The

court held that "[w]hile a plaintiff may not pursue a common law

remedy where the legislature intended to replace it with a

statutory cause of action," a wrongful discharge action could

proceed if the relevant statutory provision did not provide a

private cause of action for its violation. Id. (internal

citations omitted). We deem this holding to be dispositive of

Smith's contention.11

Title VII not only codifies the public policy against

gender-based discrimination (including, but not limited to,

pregnancy discrimination) but also creates a private right of

action to remedy violations of that policy and limns a mature

procedure for pursuing such an action. Under Wenners, the

existence of such a remedy precludes the appellant, in the

circumstances of this case, from asserting a common law claim for

wrongful discharge. It follows that the district court acted

impeccably in granting summary judgment on this claim.12

11To the extent that either Kopf v. Chloride Power

Electronics, Inc., 882 F. Supp. 1183, 1189-90 (D.N.H. 1995), or

Godfrey v. Perkin-Elmer Corp., 794 F. Supp. 1179, 1187 (D.N.H.

1992), hold otherwise, Wenners consigns them to the scrap heap.

12We acknowledge some apparent tension between this ruling
and our earlier opinion in Chamberlin v. 101 Realty, Inc., 915

F.2d 777, 786-87 (1st Cir. 1990). We set Chamberlin to one side

for a pair of reasons. First, the parties there did not raise
the issue of statutory preclusion, and the panel did not address
that issue. Second, Wenners makes a dispositive difference.

33

V. CONCLUSION
V. CONCLUSION

We need go no further. On the factbound Title VII

claim, this case presents a close question. In the end, however,

we must uphold the district court's judgment because the standard

of review is generous and there is enough evidence in the record

to support the trier's findings. On the two common law claims,

our task is appreciably easier; both claims raise questions of

law, not of fact, and the district court albeit in the person

of two different district judges correctly resolved them.

Affirmed.
Affirmed.

Concurring opinion follows
Concurring opinion follows

When the highest court of a state disposes of an issue of state
law contrary to the resolution of the issue theretofore suggested
by a federal court, the latter ruling must give way. See

Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.)

(permitting relaxation of stare decisis principles when
"controlling authority, subsequently announced," undermines an
earlier decision), cert. denied, 116 S. Ct. 51 (1995).

34

BOWNES, Senior Circuit Judge, concurring. Although
BOWNES, Senior Circuit Judge, concurring.

I am compelled by the deference due a district court's

findings of fact to concur in the final result, I write

separately because I am troubled by the analysis used in

deciding the Title VII claim. The majority applauds the

district court's failure to fully analyze Smith's claims as

"prudential." I, however, am convinced that Smith produced

direct evidence of intentional discrimination and that the

district court was obligated to fully analyze plaintiff's

case under the framework of Price Waterhouse v. Hopkins, 490

U.S. 228 (1989). Additionally, I think that the majority

mischaracterizes the law relevant to the causation

requirement under Title VII and Morse's position-elimination

defense. Its opinion could erroneously be viewed as an

invitation to use that defense as a cover for discrimination

against women who take or plan to take maternity leave.

I. The District Court's Analytical Process
I. The District Court's Analytical Process

The basic facts are undisputed. My first concern

arises from the district court's abbreviated analysis of

plaintiff's claim. The Supreme Court has established two

analytical frameworks that courts reviewing Title VII claims

must follow. Where the evidence produced at trial is

-35-
35

"direct," the Price Waterhouse framework applies.13 See

Fields v. Clark Univ., 966 F.2d 49, 51-52 (1st. Cir. 1992),

cert. denied, 113 S.Ct. 976 (1993); Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Jackson v.

Harvard Univ., 900 F.2d 464, 467 (1st Cir.), cert. denied,

498 U.S. 848 (1990).

If the evidence of discrimination is indirect or

circumstantial, the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), governs. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981);

St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742 (1993). These

basic rules have been followed, as they must, by this

Circuit. See, e.g., Cumpiano, 902 F.2d at 152; Jackson, 900

F.2d at 467; Chamberlin v. 101 Realty, 915 F.2d 777, 782

n.7. (1st Cir. 1990).

Yet, the district court found that gender

discrimination played no part in the decision to terminate

the plaintiff's employment without determining whether there

was direct evidence under Price Waterhouse or even mentioning

13. The plurality opinion in Price Waterhouse does not

itself require direct evidence of discrimination. The
reference to direct evidence appears in Justice O'Connor's
concurrence in that case. See, e.g., 490 U.S. at 270-74.

This court first adopted Justice O'Connor's conclusion that
direct evidence is required in mixed-motives cases in Jackson

v. Harvard Univ., 900 F.2d 464 (1st Cir. 1990), cert. denied,

498 U.S. 848 (1990).

-36-
36

McDonnell Douglas. See Jackson, 900 F.2d at 467 (holding

that a finding of direct evidence renders the McDonnell

Douglas framework inapplicable). The majority compounds this

analytical omission by praising the district court for its

"directness" and for having "largely bypassed any

differential direct evidence/circumstantial evidence

tamisage." A district court's decision to circumvent the

analytical processes Supreme Court and circuit precedent

require should be criticized, not praised.

This is particularly true where Title VII cases are

concerned. The discrimination that plaintiffs like Kathy

Smith face in the workplace is frequently as subtle as it is

invidious. It is in recognition of this hard truth that the

Supreme Court established an analytical process which

district courts, in my opinion, are required to follow. See,

e.g., McDonnell Douglas, 411 U.S. at 801 ("[I]n the

implementation of [employment] decisions, it is abundantly

clear that Title VII tolerates no . . . discrimination,

subtle or otherwise."); see also Price Waterhouse, 490 U.S.

at 271. The Court's jurisprudence stands for the principle

that the unlawfulness of the employment actions typically

challenged in Title VII cases is best exposed through a

process of inquiry. See, e.g., Burdine, 450 U.S. at 255 n.8

("In a Title VII case, the allocation of burdens and the . .

. prima facie case [requirement] [are] intended progressively

-37-
37

to sharpen the inquiry into the elusive factual question of

intentional discrimination."). Because I stand by that

principle, I would ordinarily suggest a remand in a case such

as this.

I have come to the conclusion, however, that remand

would not be meaningful in this case. This does not mean

that I agree with the district court's finding that the

evidence produced by Smith was not compelling. I concur in

the result because I am bound by Supreme Court and circuit

precedent. And in this area, that precedent, unfairly in my

opinion, imposes too heavy a burden on plaintiffs trying to

prove the ultimate issue in discrimination cases: that the

employer intentionally discriminated against her on the basis

of a Title VII-protected trait. I believe that Smith has

produced enough evidence to meet her initial burden under

Price Waterhouse or McDonnell Douglas, but agree that it

would have been plausible for a factfinder to conclude that

Morse proved its position-elimination defense by a

preponderance of the evidence or, alternatively, that the

facts established were insufficient to show pretext.

Although it did so without adhering to the process Title VII

requires, the district court decided the ultimate issue in

the case and, although I disagree with it, I cannot say that

decision was clearly erroneous.

-38-
38

II. Direct Evidence Under Price Waterhouse
II. Direct Evidence Under Price Waterhouse

In light of my concurrence in the majority's

ultimate holding on Smith's Title VII claim, issues

pertaining to the nature of the evidence Smith produced at

trial are, admittedly, moot. Nevertheless, I want to explain

my belief that Smith produced direct evidence and that Price

Waterhouse controls this case. This is important for two

reasons. First, the availability of direct evidence

determines whether a case should be analyzed under Price

Waterhouse or McDonnell Douglas. Direct evidence renders the

McDonnell Douglas framework inapposite and imposes a heavier

burden of proof on the employer. Fuller v. Phipps, 67 F.3d

1137, 1141 (4th Cir. 1995).

Second, the determination of whether the evidence

produced at trial is direct, though cast in procedural terms,

affects the substantive outcome in Title VII cases. See

Deborah C. Malamud, The Last Minuet: Disparate Treatment

After Hicks, 93 Mich. L. Rev. 2229, 2229 (1995)("Title VII

jurisprudence cloaks substance in the 'curious garb' of

procedure."). This observation is of less import in Smith's

case because, at the time the events giving rise to Smith's

suit occurred, the law provided that an employer shown to

have unlawfully discriminated could avoid Title VII liability

by demonstrating by a preponderance of evidence that the

adverse employment decision would have been the same even if

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39

discrimination had played no role. Lam v. Univ. of Hawai'i,

40 F.3d 1551, 1564-65 (9th Cir. 1994). In other words,

direct evidence of discrimination, without more, was not

enough to impose liability on Morse. Id.

Under today's applicable law, however, a plaintiff

producing direct evidence of discrimination under Price

Waterhouse may have a Title VII remedy. Id. at 1565 n. 24.

The Civil Rights Act of 1991 "modified the Price Waterhouse

scheme" and made "mixed-motives treatment more favorable to

plaintiffs." Fuller, 67 F.3d at 1142; see Civil Rights Act

of 1991, Pub. L. 102-166, 107, 105 Stat. 1071, 1073

(1991)(codified at 42 U.S.C. 2000e-2). Section 107 of the

Act provides that Title VII is violated whenever an employer

takes sex or pregnancy into account, regardless of whether

other considerations independently explain the adverse

employment decision. Id.; see 42 U.S.C. 2000e-2(m)("[A]n

unlawful employment practice is established when the

complaining party demonstrates that race, color, religion,

sex, or national origin was a motivating factor for any

employment practice, even though other factors also motivated

the practice."). Prevailing mixed-motives plaintiffs, at the

very least, are now entitled to declaratory and injunctive

relief and attorney's fees. See Kerr-Selgas v. Am. Airlines,

69 F.3d 1205, 1210 (1st Cir. 1995)(citing 42 U.S.C. 2000e-

5(g)(2)(B))(where an employer in a mixed-motives case proves

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that it would have made the same decision, the prevailing

plaintiff is entitled to attorney's fees, and declaratory and

injunctive relief, but not damages or reinstatement). Thus,

what constitutes direct evidence is a critical issue for

Title VII plaintiffs.

The majority makes repeated references to "smoking

gun" evidence. Using this term only obscures the fact that

this Circuit has yet to clearly define what constitutes

direct evidence of gender discrimination. On prior occasions

we have held that "[d]irect evidence is evidence which, in

and of itself, shows a discriminatory animus." See, e.g.,

Jackson, 900 F.2d at 467. But, this reasoning is circular

and does not further understanding of the term. Justice

O'Connor, in her concurring opinion in Price Waterhouse,

defined the term in the negative, explaining that direct

evidence "exclude[s] 'stray remarks in the workplace,'

'statements by nondecisionmakers', or 'statements by

decisionmakers unrelated to the decisional process itself.'"

Price Waterhouse, 490 U.S. at 277 (O'Connor concurring).

I contend that the evidence Smith produced at trial

was direct and, therefore, warranted full application of the

Price Waterhouse framework. The evidence shows that Smith

was pregnant, and requested and received unpaid maternity

leave. After being on leave several weeks, Smith notified

Morse's general manager, Guimond, that she wanted to return

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to work on May 15, 1989, a week earlier than planned.

Guimond approved the earlier start time and assured Smith

that her job was secure. She also asked Smith whether she

intended to have additional children; Smith indicated that

she did.

On May 2, 1989, the day after this conversation

occurred, Guimond also questioned Vendasi, Smith's sister,

about Smith's future childbearing plans. Smith confronted

Guimond about this behavior and the rumor that she would not

be returning to work because she had decided to stay home

with her child. Guimond denied any knowledge about the rumor

and reiterated that Smith's job was secure; she repeated this

guarantee two days later. Despite these assurances, Guimond

terminated Smith on May 11, 1989, one week after their last

conversation and four days before Smith was slated to return

to work. Guimond requested permission to tell people that

Smith failed to return to work because she decided to stay

home to care for her child, but Smith refused to give it.

There is precedent holding that statements like

those Guimond made to Smith and Vendasi constitute direct

evidence. For example, in the Eighth Circuit, statements

made by an employer can be direct evidence of discrimination,

if made during a key decisional process. In Beshears v.

Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), the court held

that an employer's oral statement, "older employees have

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problems adapting to changed and new policies," was direct

evidence of age discrimination. 930 F.2d at 1354. Two years

later, the court expanded its Beshears holding to include

written statements. Radabaugh v. Zip Feed Mills, Inc., 997

F.2d 444, 449-50 (8th Cir. 1993), held that written

statements included in corporate planning documents were also

direct evidence of discrimination.

Other circuits have included statements made

outside of the decisional process in the definition of direct

evidence. In 1994, the Seventh Circuit held that post-

discharge statements made by a supervisor were direct

evidence of age bias, even though they were not reflective of

an express intent to discriminate. See Robinson v. PPG

Indus., Inc., 23 F.3d 1159, 1165 (7th Cir. 1994). Similarly,

the Eleventh Circuit has held that statements made by an

employer to third parties are direct evidence of

discriminatory animus. In EEOC v. Beverage Canners, Inc.,

897 F.2d 1067, 1070 (11th Cir. 1990), the court found that

racially biased statements made by a supervisor to workers in

his plant were direct evidence of racial animus and a hostile

environment under Title VII.

Guimond's statements to both Smith and Vendasi fall

well within the definition of direct evidence established by

cases such as Beshears and Beverage Canners. Guimond was

solely responsible for Morse's personnel decisions. Her

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questions about Smith's childbearing plans were neither stray

nor random and evinced a concern about future pregnancy.

Additionally, Guimond began asking questions about Smith's

childbearing plans during what she admits was a key

decisional period. Finally, the facts show that the timing

of the decision to terminate Smith was suspicious. Cf.

Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994);

Josey v. Hollingsworth Corp., 996 F.2d 632, 639 (3d Cir.

1993). Within two weeks of learning about Smith's plans to

have more children, Guimond decided to terminate Smith, even

though she had repeatedly assured Smith that her job was

secure.

This evidence of discrimination is direct and clear

even if it does not reach the status of a smoking gun. That

some inferences must be drawn from what was said and done to

reach this conclusion does not make Smith's evidence

indirect. As the Seventh Circuit recognized in its 1991

decision, Visser v. Packer Eng'g Assoc., Inc., 924 F.2d 655,

659 (7th Cir. 1991), "all knowledge is inferential." Because

judges are not mind-readers and cannot reach into the mind of

a Title VII defendant, a certain amount of inference-drawing

is necessary in any case, whether the evidence is direct or

indirect. The ultimate issue in disparate treatment cases -

- whether the employer intended to discriminate -- cannot be

established by purely direct evidence. See Charles A.

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Sullivan, Accounting For Price Waterhouse: Proving Disparate

Treatment Under Title VII, 56 Brook. L. Rev. 1107, 1138

(1991)("'[D]irect evidence' of intent cannot exist, at least

in the sense of evidence which, if believed, would establish

the ultimate issue of intent to discriminate."); Tyler v.

Bethlehem Steel Corp., 958 F.2d 1176, 1183-84 (2d Cir.),

cert. denied, 113 S.Ct. 82 (1992).

Rather than adhering to the colorful but

meaningless requirement of a smoking gun, I think we should

adopt a definition of direct evidence in Title VII cases

which satisfies the minimum negative requirements Justice

O'Connor set out in Price Waterhouse: "exclude[s] 'stray

remarks in the workplace,' 'statements by nondecisionmakers',

or 'statements by decisionmakers unrelated to the decisional

process itself.'" Price Waterhouse, 490 U.S. at 277

(O'Connor concurring). In accord with the Civil Rights Act

of 1991, this definition preserves the mixed-motives case as

a viable option in Title VII suits. Cf. Michael A.

Zubrensky, Despite The Smoke, There Is No Gun: Direct

Evidence Requirements In Mixed-Motives Employment Law After

Price Waterhouse v. Hopkins, 46 Stan. L. Rev. 959, 969

(1994). It lowers the high hurdle of "smoking gun" evidence

to reasonable limits so that plaintiffs in employment

discrimination cases can receive all the protections Title

VII was intended to give.

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Even if my definition of Price Waterhouse direct

evidence is rejected, however, it is irrefutable that Smith

made out a prima facie case of discrimination under McDonnell

Douglas: that after being directly so asked, she expressed an

intention to become pregnant in the future; that her

performance at work was more than satisfactory; that she was

terminated after repeated assurances that her job was

"secure;" and that her duties continued to be performed by

comparably qualified individuals. See Cumpiano, 902 F.2d at

153; Lipsett v. Univ. of P.R., 864 F.2d 881, 899 (1st Cir.

1988).

Smith's reiteration of these facts on appeal

complied with Supreme Court and circuit precedent. Smith

proved that she was fired even though she was an excellent

manager and that her duties continued to be performed by

other employees. In my view, this is all McDonnell Douglas'

prima facie case burden requires. See, e.g., Byrd v.

Ronayne, 61 F.3d 1026, 1031 (1st Cir. 1995)("[T]he required

prima facie showing is not especially burdensome.")(citing

Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.

1995)). The district court should have shifted to the

McDonnell Douglas framework before finding Smith's evidence

deficient.

III. Causation Under Title VII
III. Causation Under Title VII

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In addressing the question of causation in

disparate treatment cases, the majority stresses that a

"coincidence" between pregnancy leave and an employment

decision does not prove intentional discrimination. It may

not in all cases, but it arguably did in this case. The

majority's discussion of causation completely disregards this

possibility. Its blanket contention that pregnancy does not

give plaintiffs "total immunity" from adverse employment

actions ignores the extent to which maternity leave gives

employers an opportunity to discharge women who take

maternity leave or who express an intention to have one or

more children.

The evidence arguably shows that the position Smith

held would have been eliminated even if Morse had not

considered her pregnancy or intention to become pregnant in

the future. It does not necessarily follow from this,

however, that Smith would have been fired had Morse not

considered her maternity leave or desire to have more

children. In their conversations before Smith took maternity

leave, Bond, Morse's president, and Guimond discussed

eliminating the materials manager position, but not Smith.

The record shows both that Bond initially intended to retain

Smith because of her excellent skills and that he admitted

that Smith would still be employed at Morse had she not taken

maternity leave.

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Had Smith refused to disclose or even lied about

her intention to have more children, she would probably still

have a job at Morse. The facts show that Guimond was very

concerned about the disruption Smith's absence would cause

and suggest that she would have taken steps to avoid such

disruption in the future. The majority completely ignores

the probability that Smith's expressed desire to have more

children was the motivating factor in her discharge and that

her temporary absence on maternity leave gave her employer an

opportunity to find a reason to discharge her. I contend

that the evidence Smith produced was sufficient to establish

intent and causation.

The two examples the majority gives to illustrate

the need for a causal connection between pregnancy and the

adverse employment action challenged in disparate treatment

cases are both inapposite and unfair. Footnote 9 of the

court's opinion analogizes Smith's dismissal during maternity

leave to an employee who is discharged while on religious

leave because heroin is discovered in her desk. It is true

that in both cases the employee's absence enabled the

employer to make the discovery resulting in discharge. But

here the analogy breaks down.

The possession of heroin is illegal; its presence

in the employee's desk was a fact that could not be refuted

(although an explanation might be made). The employer did

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not have to make any determination as to the quality of the

employee's work or her capabilities. She had to be fired.

In the case of maternity leave, however, an employer would

have to make a judgment as to whether eliminating the

position made good business sense. Considerations such as

the employee's prior performance and future childbearing

plans would be part of the employer's position-elimination

decision. At least in part, that decision would be "because

of" pregnancy, present and future. It could not be made in

the vacuum the majority's hypothetical presupposes.

Similarly, the cases the majority cites to support

its view obscure the causation issue and unfairly compare

Smith to employees who are placed on probation because of

poor attitudes or who are discharged because of unexcused

absences. Cases such as Troupe v. May Dep't Stores Co., 20

F.3d 734 (7th Cir. 1994), Crnokrak v. Evangelical Health

Systems Corp., 819 F. Supp. 737 (N.D. Ill. 1993), and Johnson

v. Allyn & Bacon, Inc., 731 F.2d 64 (1st Cir.), cert. denied,

469 U.S. 1018 (1984), involved discharge, not position

elimination. In Troupe, the employee's pre-maternity leave

dismissal was motivated by her tardiness and frequent

absences. Crnokrak involved a plaintiff who was terminated

after returning from maternity leave later than originally

expected, whereas Johnson dealt with an employee who lacked

supervisory skills and who was fired after being placed on

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probation because of a poor work attitude. The one position-

elimination case the majority cites, Pearlstein v. Staten

Island Univ. Hosp., 886 F. Supp. 260 (E.D.N.Y. 1995), is

similarly inapposite; it involved adoption, not pregnancy,

and an employee who gave short notice of her need for

maternity leave. And in that case, the evidence showed that

the plaintiff was accidentally overpaid, that her employer

was experiencing financial difficulties, and that she had

received no assurances about the security of her job.

These cases do not directly address the causation

issues presented here. In contrast to Pearlstein, the

evidence in this case shows that Smith received repeated

assurances about her job, that the raise she received before

taking maternity leave was intentional, and that Smith's

termination was not due to economic hardship. Additionally,

the evidence does not show that Smith was fired for a poor

attitude, that she had ever been on probation, or that she

lacked supervisory skills. The fact that Smith received

regular promotions and that few people at the Morse plant

exceeded her level of education or experience belies any

suggestion that Smith's performance and skills were below

par.

Finally, Smith received permission for her

maternity leave, shortened the duration of that leave, and

was fired before she could return to work, not before she

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left. Smith's maternity leave, thus, did not pose a problem

for Morse in the same way that the Troupe employee's

unexpected illness or the Crnokrak plaintiff's extended leave

did for their employers. The crux of Morse's defense, after

all, is that Smith was fired because her absence had no

effect whatsoever on Morse's operations.

My point is simple: just as pregnancy does not

fully shield plaintiffs from adverse employment actions,

business judgment or necessity does not totally immunize

employers from Title VII's sanctions. The majority's

discussion of causation understates this important point. I

believe that, more often than not, a correlation between

pregnancy and position elimination during maternity leave

will exist. It is naive to think that an employer would not

take an employee's pregnancy or intention to become pregnant

in the future into consideration during the process of

determining whether the employee's position should be

eliminated.14

IV. The Position-Elimination Defense
IV. The Position-Elimination Defense

14. I am, of course, aware that the Family and Medical Leave
Act of 1993, P.L. 103-3, 107 Stat. 6 (1993)(codified at 29
U.S.C. 2601-2654) addresses a number of the concerns I
raise. That Act, however, does not apply in pre-1993 cases
and does not, moreover, correct the problems I perceive in
the majority opinion's analysis and posture towards Smith's
discrimination claim.

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The majority upholds the district court's finding

that Morse made out a position-elimination defense on two

grounds: that Morse reduced its management-level staff and

that Smith's duties were shifted to employees who were

already on the Morse payroll. Though I concur in the holding

that Morse arguably proved the facts necessary to rebut

Smith's gender discrimination claim, I think the scope of the

position-elimination defense is considerably more narrow than

the majority's interpretation of the facts suggests. That a

company is able to manage in the absence of one of its key

employees will not always be proof of a nondiscriminatory

purpose, contrary to what the court's opinion implies. Were

that so, every woman who took maternity leave would do so at

risk of losing her job.

Moreover, the conclusion that Morse reduced its

management staff is not supported by the evidence. Morse did

not, as the court's exposition of the facts suggests, reduce

its management team from seven to three. The majority

reached this conclusion by eliminating Bond and Guimond from

its final count, even though they each donned one of the two

hats formerly worn by Darryl Robinson, Damar's founder and

chief officer. It also erroneously included Smith in Damar's

original management team, even though she did not have a

management title at that time. And it failed to include the

two assistant manager positions in its final count, even

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though the individuals holding those slots did have

management titles. If the individuals excluded from the

majority's calculations are added, the size of Morse's

management team was the same at the end as it was in the

beginning -- seven.15

The facts demonstrate that Morse mainly reorganized

its management team. It consolidated positions and

eliminated titles, but did not decrease the size of its

management. Because it would have been plausible for the

district court to interpret this reorganization as position

elimination, I concur in the court's holding. I do not

agree, however, that reorganizations of the sort Morse

carried out will be enough to rebut claims of intentional

discrimination in every case. For me, whether the district

court was clearly erroneous in its findings on this issue was

a very close call.

The court's holding that Smith was not replaced,

that her duties were merely transferred to other Morse

15. Post-acquisition of Damar, Morse's upper-level
management team included the following seven people: Bond
(president); Guimond (general manager); Paradis (machining);
Shevenell (sheet metal); Bickford (engineering); Seeger
(sales); and Smith (materials). I do not include Lane and
Hickman in this number because they were fired almost
immediately after Damar's acquisition, partially due to their
poor performance. After Smith was fired, Morse's upper-level
management team still included seven individuals: Bond
(president); Guimond (general manager); Paradis (operations);
Shevenell (manufacturing); Seeger (sales); Lapanne (assistant
manager); and Hoffman (assistant manager).

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employees, is based on our holding in LeBlanc v. Great Am.

Ins. Co., 6 F.3d 836 (1st Cir. 1993), cert. denied, 114 S.Ct.

1398 (1994). LeBlanc holds that a position-elimination

defense is not defeated by the claim that an employee was

only "replaced" because "another employee [was] assigned to

perform the plaintiff's duties in addition to other duties,

or [because] the work [was] redistributed among other

existing employees already performing related work." 6 F.3d

at 846; see also Barnes v. GenCorp., Inc., 896 F.2d 1457,

1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990).

To the extent that Morse's defense comports with

Leblanc at all, it does so on the basis of the first prong,

not the second. In analogizing Morse's first reorganization

to the reorganization which occurred after Smith's firing,

the majority opinion gives the impression that LeBlanc's

second prong, the "related work" requirement, can be

satisfied by demonstrating that a plaintiff's duties were

simply transferred to someone working in the same company. I

disagree. I contend that LeBlanc's related-work requirement

cannot be met unless the employer proves that it shifted the

plaintiff's duties to employees who were already performing

some of the plaintiff's duties or, at least, duties that were

very similar. This did not occur in this case.

In the first reorganization, Smith was promoted to

materials manager and asked to officially assume some of the

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duties she had already been performing because of the

inadequacies of other managers. Smith at that time assumed

duties which, in my opinion, constituted related work under

LeBlanc. In contrast, the second reorganization did not

shift Smith's responsibilities to managers who had already

been performing her job. After Smith was fired, those

managers took on what were essentially new duties; the

majority's own contention that Paradis and Shevenell were far

more experienced than Smith and responsible for the technical

aspects of Morse's business bears this out. That they

performed those duties for some period before Smith was fired

was only because Smith was on maternity leave. The

nonpregnancy-based explanation for their additional

responsibilities did not kick in until after Smith's firing.

If Title VII's protections against pregnancy-based

discrimination are to have any force, the relevant period of

inquiry for determining whether the duties formerly performed

by a plaintiff were assumed by someone already performing

related work under LeBlanc should not be during a maternity

leave. The relevant period of inquiry must be before that

leave began. Using the time period when the woman is on

maternity leave creates a perverse incentive to discriminate

against pregnant women by firing them when they are not at

their jobs and when it will almost always be true that

someone else is performing their duties. In this case, if

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Smith had not become pregnant and taken maternity leave, she

would still be a valued Morse employee.

V. Conclusion
V. Conclusion

William James once said that an idea's "validity is

the process of its valid-ation." Accordingly, I concur in

the outcome reached in this case, but not the process

employed, because I disagree with the view of pregnancy

discrimination cases taken by the majority. I think it only

plausible that gender was not the motivation for the adverse

employment action taken against Smith, not "true." And I

agree only that position elimination can be a defense in

Title VII cases, not that it will be a defense in every case.

For me, the process employed in reaching a result, which

includes the hypotheticals drawn and examples given, matters.

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