United States Court of Appeals
For the First Circuit
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No. 99-2152
RALPH WILLIAMS,
Plaintiff, Appellant,
v.
RAYTHEON COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Schwarzer,* Senior District Judge.
_____________________
Ira H. Zaleznik, with whom Lawson & Weitzen, LLP was on brief, for
appellant.
James F. Kavanaugh, Jr., with whom Stephen S. Churchill and Conn
Kavanaugh Rosenthal Peisch & Ford, LLP were on brief, for appellee.
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* Of the Northern District of California, sitting by designation.
July 21, 2000
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SCHWARZER, Senior District Judge. Ralph Williams charged
Raytheon Company with (1) gender discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-2, (2) age
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA) 81 Stat. 602, as amended, 29 U.S.C. § 621-634, (3) age
and gender discrimination prohibited by Massachusetts G.L. c. 151B, and
(4) violation of Massachusetts' public policy prohibiting retaliation
for cooperating with a government investigation. Williams initially
filed a charge of discrimination with the Massachusetts Commission
Against Discrimination (MCAD) and then brought this action in district
court. The district court granted summary judgment against Williams on
all claims and this appeal followed. We have jurisdiction under 28
U.S.C. § 1291 and affirm, albeit for reasons different from the
district court's.
FACTUAL BACKGROUND
Williams is a 51-year old white male who was employed by
Raytheon as Director, Internal Communications. He had responsibility
for writing, producing and editing Raytheon's corporate newspaper and
other corporate publications. In 1993, Elizabeth Allen joined Raytheon
as its Vice-President, Corporate Communications. In that position,
Allen was Williams' direct supervisor and she continued in that
position until Williams' termination in 1995. Allen was Raytheon's
first female officer and set out to make her presence felt in the
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company. She told members of her department that she thought Raytheon
was run by "old, white men," that she intended to change the corporate
culture, and that she would favor the hiring of women and younger
people.
From the outset, her style was assertive and abrasive. She
forced a female employee out of the company by assigning her computer
tasks she knew the employee could not perform. By mistake, she
approved premature publication of a story about the award of a
government contract to Raytheon which led to a government
investigation. At the request of the legal department, Williams
prepared an explanatory statement for the government investigator but
Allen told him to write a new statement based on one she had written.
In her statement, Allen blamed Williams' secretary for the erroneous
release of the story. When Williams testified about this incident
before an investigator, Allen, according to Williams, became furious
and threatened him, implying that failure to follow her commands would
cost him his job.
According to Williams, Allen conducted a campaign of
harassment against him to prevent him from performing his job. The
final episode began on June 8, 1995, when Allen asked him to do three
things regarding the Raytheon newspaper: develop an alternative
publication that cut production time in half, develop five or six
backup stories, and provide a schedule for the next issue. On June 19,
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Williams responded with a four-page memorandum, the tone of which Allen
considered hostile and sarcastic. About June 23, Williams met with
Allen in her office. Allen claims Williams threatened her. According
to Williams, she told him she wanted him to leave the company.
Williams, who admits that he was upset, emotional, and may have raised
his voice, said he would report her to the Raytheon Human Resources
Department (HR). Williams then filed a complaint against Allen with HR.
On July 11, 1995, Williams was called into the Executive
Offices and was met by Allen and two members of HR. Allen told him
that she was permanently suspending him for insubordination. When
Williams asked when he had been insubordinate, he was told he had been
"insubordinate by memo." Williams never returned to Raytheon. He was
eventually replaced by a forty-eight year old white man.
DISCUSSION
I. THE TITLE VII CLAIM
The question before us is whether this story of two years of
discord, as related in Williams' brief in this court, translates into
a viable claim of gender discrimination. We agree with the district
court that Williams has sustained the "not onerous" burden of
establishing a prima facie case. Texas Dep't Of Community Affairs v.
Burdine, 450 U.S. 248, 253-54 (1981). A reasonable juror could find
that he was within a protected class (in the sense that every person is
in a class protected against gender discrimination), performed his job
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satisfactorily (which is not an issue), suffered adverse employment
action, and was replaced by a person "with roughly equivalent
qualifications" (also undisputed). See Smith v. Stratus Co., 40 F.3d
11, 15 (1st Cir. 1994).
Raytheon has come forward with what it contends is a
legitimate, nondiscriminatory reason for Williams' termination--
insubordination. Williams contends that Raytheon's reason is a pretext
for gender discrimination. In reviewing the summary judgment we must
review all of the evidence in the record before us, drawing all
reasonable inferences in favor of the nonmoving party. See Reeves v.
Sanderson Plumbing Prods., Inc., ___ U.S. ___, 120 S. Ct. 2097, 2110
(June 12, 2000).
"Proof that the defendant's explanation is unworthy of
credence is . . . one form of circumstantial evidence that is probative
of intentional discrimination." Id. at 2108. In Reeves, the employer
contended that plaintiff had been fired for "shoddy record keeping."
In response, plaintiff came forward with what the Court described as "a
substantial showing that respondent's explanation was false." Id. at
2107. He offered specific evidence that he had properly maintained
attendance records and that he was not responsible for failure to
discipline late and absent employees. Id. at 2107. The Court held
that the evidence sufficed to find that the employer's asserted
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justification was false, permitting the jury to conclude that the
employer had unlawfully discriminated. Id. at 2109.
Williams' case is a far cry from Reeves'. Williams made no
showing, much less a substantial showing, that the insubordination
justification was false. It is not disputed that Williams and Allen
had an acrimonious working relationship. The denouement came when she
directed him to come up with a plan to conform the publication of the
newspaper to her ideas and he responded in a lengthy memorandum,
essentially parrying her directions and shifting responsibility for
shortcomings to her. At a meeting that followed, the two had words.
Williams was emotional and upset. Allen said she wanted him to leave
the company and he said he would report her to HR, which he did by
filing a complaint against her. Shortly thereafter, he was terminated
for insubordination.
The issue is not whether reasonable jurors could find that
Raytheon lacked good cause to terminate Williams--Williams was an at-
will employee and Title VII, in any event, does not prohibit wrongful
discharge--but, rather, whether Williams made a substantial showing
that the reason given for the termination was false. It is undisputed
that Williams was told he was fired for insubordination, a word whose
meaning is not limited to disobedience of orders but includes also "a
generally disaffected attitude toward authority." Webster's Third New
International Dictionary (1971) 1172. There is no evidence
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contradicting Raytheon's stated reason of insubordination for Williams'
discharge.
In the absence of evidence from which a reasonable juror
could find Raytheon's explanation false, we must determine whether
other evidence would permit a reasonable juror to find that Williams
sustained his ultimate burden of proving Raytheon intentionally
discriminated against him on account of his gender. See Burdine, 450
U.S. at 253. That Allen may have harbored hostility and treated him
unfairly standing alone is not probative of gender based animus. What
is the evidence on which Williams relies? Williams asserts that Allen
said she needed to change Raytheon's "old, white men" culture so that
women and younger people could assume a prominent position, that she
said she would favor women and younger people in her hiring, that she
ordered Williams to give credit for a brochure he created to a female
assistant, and that when Williams accused her of wanting him out
because he was an older man, she remained silent. Yet, the evidence
also shows that Allen hired men, in one case hiring a younger man to
replace an older woman. Given the probative value of Raytheon's stated
reason for the discharge, these stray remarks (or non-remarks) do not
support a reasonable inference that Raytheon acted out of a
discriminatory purpose.
II. THE ADEA CLAIM
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The district court rejected Williams' ADEA claim because his
replacement (48 years old) was insignificantly younger than Williams
(51 years old) and this age difference was insufficient to support a
prima facie presumption of age discrimination. In O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the Supreme
Court explained that a "prima facie case requires evidence adequate to
create an inference that an employment decision was based on an illegal
discriminatory criterion. In the age-discrimination context, such an
inference cannot be drawn from the replacement of one worker with
another worker insignificantly younger." Id. at 312-13 (internal
quotations, alterations, and citation omitted).1 The circuits that have
interpreted O'Connor are in accord that an age difference of less than
five years is insufficient to support a prima facie case of age
discrimination. See, e.g., Hoffman v. Primedia Special Interest
Publications, 2000 WL 793989 at *2 (7th Cir. June 21, 2000) (plaintiff
failed to establish prima facie case of age discrimination where
replacement was only three years younger); Bush v. Citaphone Corp., 161
F.3d 363, 368 (6th Cir. 1998) (five year age difference is not
"substantially younger"); Schlitz v. Burlington N. R.R., 115 F.3d 1407,
1 O'Connor reversed a summary judgment for defendant, the lower court
having held that replacement of a worker in the protected class by
another worker also in the protected class did not preclude the
existence of a prima facie case. The Supreme Court went on to analyze
the inferences that may properly be drawn from employment decisions,
including the replacement of a worker with one not significantly
younger.
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1413 (8th Cir. 1997) (same). We agree with those decisions and
conclude that a three year age difference is too insignificant to
support a prima facie case of age discrimination.
III. STATE LAW CLAIMS
A. Age and Gender Discrimination
To maintain an action for discrimination under state law,
Williams would have had to file a charge with MCAD within six months of
the alleged discriminatory act. See G.L. c. 151B, § 5; see also
Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1021-1022, 673
N.E.2d 40 (1996). The statute of limitations began to run when
Williams found out that Raytheon had decided to terminate him. See
Ching v. Mitre Corp., 921 F.2d 11, 14 (1st Cir. 1990). He testified on
deposition that he was permanently terminated on July 11, 1995, but he
did not file his charge of discrimination with MCAD until February 2,
1996. In his affidavit in opposition to the summary judgment motion,
Williams sought to correct his deposition testimony, asserting that not
until he had a telephone conversation with a Raytheon official in
August was it explained to him that his indefinite suspension would
result in a termination. When, as here, "an interested witness had
given clear answers to unambiguous questions, he cannot create a
conflict and resist summary judgment with an affidavit that is clearly
contradictory but does not give an explanation why the testimony is
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changed." Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5
(1st Cir. 1994).
To avoid the plain bar of the statute of limitations,
Williams seeks refuge in the continuing violation doctrine. See 804
C.M.R. § 1.03(2) (extending the six-month statute of limitations where
"the unlawful conduct complained of is of a continuing nature"). The
doctrine is plainly inapposite to Williams' complaint of discriminatory
termination. It applies to two different types of violations, neither
of which is present here: systemic violations based on a discriminatory
policy or practice and serial violations composed of a series of
discriminatory acts. See Pilgrim v. Trustees of Tufts College, 118
F.3d 864, 868-69 (1st Cir. 1997). Moreover, the doctrine does not
apply because Williams considered the act of which he complains
discriminatory at the time, as shown by his preliminary complaint to
MCAD on July 12, 1995, the day after his termination. See Provencher
v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998).
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B. Retaliation
Williams also claims that he was discharged for giving
truthful testimony to a government investigator. To succeed on a claim
for retaliatory discharge, Williams "must establish the basic fact that
he was subjected to an adverse employment action because of his
protected activity." Lewis v. Gillette Co., 22 F.3d 22, 24 (1st Cir.
1994). "[T]here must be competent evidence that . . . a retaliatory
motive played a part in the adverse employment actions alleged." Id.
The government investigation arose out of the premature
publication in the Raytheon newspaper of a story of a government
contract award to a Raytheon subsidiary. The facts viewed in the light
most favorable to Williams are these. In August 1994, Williams was
told by the legal department to prepare a statement for the
investigators. He did but Allen told him to throw it out and prepare
one using her affidavit as a model, which he did. After submission of
the statement he had been directed to prepare, Williams was interviewed
by an investigator. Williams, who assumed (but did not know) that
Allen knew what he had said to the investigator, thought that Allen was
furious with him, although nothing in the record explains why she
should have been furious. The record does not disclose what Williams
told the investigator, much less why his interview in the course of the
investigation with which the company had cooperated should have
generated a retaliatory animus. Williams' interview appears to have
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ended the investigation. In October, Allen made a comment that
Williams was not interested in loyalty, only in the truth. In February
1995, Allen gave Williams a bonus, commenting that she was pleased with
his performance since August. On June 23, 1995, Williams and Allen had
the emotional meeting previously described; at this meeting Williams
says he told Allen that she was harassing him because of the
investigation but she remained silent. On July 11, he was indefinitely
suspended for insubordination.
We find no competent evidence of a causal link between
Williams' testimony to the investigator and his discharge. See Lewis,
22 F.3d at 25. As discussed above, Williams made no showing to refute
Raytheon's position that Williams was discharged for insubordination.
Nothing in what Allen said or did during the eleven-month interval
between the testimony and the discharge suggests that she harbored any
retaliatory animus; to the contrary, in February she gave Williams a
bonus and expressed her satisfaction and the final row between them has
not been shown to be connected to the earlier episode. See Mesnick v.
General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991). Finally, while
it is not known what Williams' testimony was, the record lacks any
indication that it gave Allen grounds for wanting to terminate
Williams.
CONCLUSION
For the reasons stated, the judgment is affirmed.
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AFFIRMED.
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