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