United States Court of Appeals
For the First Circuit
No. 02-1693
ARMANDO VESPRINI,
Plaintiff, Appellant,
v.
SHAW CONTRACT FLOORING SERVICES, INC.,
AND SHAW INDUSTRIES, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Richard L. Yospin for appellant.
Allison K. Romantz, with whom Robert P. Joy, Maura D.
McLaughlin, and Morgan, Brown & Joy, LLP, were on brief for
appellees.
December 30, 2002
CYR, Senior Circuit Judge. Appellant Armando Vesprini
challenges various summary judgment rulings which led to the
dismissal of his age-discrimination, breach-of-contract, and
constructive-discharge claims against his former employers, Shaw
Contract Flooring Services, Inc. ("SCFSI") and Shaw Industries,
Inc. ("Shaw").
I
BACKGROUND
Circle Floors, Inc., a Massachusetts-based flooring
retailer and installer, was founded by Vesprini in 1960.1 In April
1997, after serving as its president for thirty-seven years, the
seventy-one-year-old Vesprini, as well as his son Michael, sold
their Circle Floors, Inc. stock to Shaw, a Georgia-based
corporation. In addition, Vesprini entered into a three-year
contract to remain on as the president of Circle Floors. At about
the same time, Shaw acquired Continental Carpets, another
Massachusetts flooring company, which directly competed with Circle
Floors.
A few months later, in October 1997, Vesprini executed a
"Standards of Ethical Conduct Agreement." The agreement
specifically prescribed that Vesprini's "use of vulgar or
1
Summary judgment rulings are reviewed de novo, after
assessing all the competent evidence and its attendant reasonable
inferences in the light most favorable to the nonmoving party,
viz., Vesprini. Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 (1st
Cir. 2002).
2
unprofessional language on company premises or at any time while
engaged in the performance of company duties [was to be] strictly
prohibited," and that "failure to abide by this Agreement may be
grounds for . . . termination . . . without any further notice and
without any requirement of progressive discipline."
Thereafter, Shaw hired forty-one-year-old Scott Mahan to
investigate whether Circle Floors and Continental Carpets were
continuing to compete for the same clientele. In due course, Mahan
reported that there remained a significant overlap. Whereupon,
after consulting with Vesprini, Shaw decided to consolidate its
Massachusetts operations, including Circle Floors and Continental
Carpets, into a single corporate entity (viz., "SCFSI"). Scott
Mahan was named as its president.
Vesprini suspected that Shaw was replacing him as the
Circle Floors president, due to his age. Additionally, Vesprini's
immediate supervisor, Jay Houston, advised Vesprini that he was
"not going to be [with Shaw] much longer," that the time had come
to "step back and let the young stallions run the [day-to-day]
business," but that Vesprini nevertheless would serve as Circle
Floors' "chief executive officer" and as a "mentor" to both Mahan
and Vesprini's son, Michael.
Shortly thereafter, upon being pressed by Vesprini,
Houston gave Vesprini assurances that he remained "the boss." In
reliance upon the Houston assurance, Vesprini withheld any
3
objection to Mahan's appointment as the president of SCFSI, because
he believed that he was to retain the ultimate decisionmaking
authority as to all business decisions relating to the "Circle
Floors" division of SCFSI.
By December 1997, however, after Vesprini had come to the
realization that Mahan had taken over virtually all the day-to-day
operations of the merged companies, Vesprini transmitted a
memorandum to Mahan requesting that he be copied on all important
correspondence. Mahan simply ignored the request. Instead, Mahan
informed Vesprini: "[Y]ou don't know how to run the business."
and "[You are not] going to be here much longer." Mahan added that
Vesprini should go play golf in Florida. Finally, Mahan maintained
that Houston was not telling the truth when he gave the assurance
that Vesprini would remain the "boss."
At a January 1998 meeting, Hal Long, Shaw's executive
vice president, unequivocally advised Vesprini that Mahan was now
his boss. Vesprini in turn advised Long that he intended to
consult an attorney. In a follow-up letter, Houston informed
Vesprini that Shaw intended to "relieve[] [Vesprini] of some of the
more mundane operational responsibilities [in order that] [Vesprini
would] have the time to become a needed mentor to both Scott
[Mahan] and Michael [Vesprini]."
SCFSI moved into new and more spacious corporate office
quarters in June 1999. Vesprini regarded the small, windowless
4
office assigned to him "[in]consistent with an office for a chief
executive officer." Moreover, every employee except Vesprini was
issued a new company business card.
On October 27, 1999, while Mahan was absent on extended
sick leave, Paul Ritzel, director of operations, and Suzanne
Grubis, a sales manager, overheard a conversation between Vesprini
and his son, during which the senior Vesprini loudly proclaimed
that "Suzanne Grubis is going to f--- you," apparently referring to
a reassignment of an important sales account from Vesprini's son to
Grubis. Ritzel and Grubis immediately confronted Vesprini
regarding this crude remark, at which point Vesprini admittedly
"lost his cool," and once again resorted to profanity.2
The October 1997 Standards of Ethical Conduct Agreement
empowered Shaw immediately to terminate Vesprini's employment due
to these profane outbursts. Shaw nevertheless permitted Vesprini
to remain until his three-year employment contract expired in April
2000, with full salary and benefits, on the condition that Vesprini
not enter the corporate offices without prior permission from
Houston, and that Vesprini remain available to provide business
advice to Shaw as required.
After submitting, then withdrawing, his complaint before
2
Ritzell asserted that Vesprini stated, among other things:
"[G]et off your f---ing ass"; Ritzell "should be in that f---ing
estimating department" drumming up business, instead of planning
his office decor; Ritzell is "full of bull----," and Mahan is a "f-
--ing ---hole."
5
the Massachusetts Commission Against Discrimination (MCAD),
Vesprini proceeded to lodge a three-count complaint in the
Commonwealth courts, which Shaw subsequently removed to the United
States District Court for the District of Massachusetts. The
complaint alleged that the above-described actions taken by Shaw
(i) violated the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621 et seq., as well as its Commonwealth counterpart,
Mass. Gen. Laws ch. 151B, § 1 et seq.; (ii) breached the employment
contract; and (iii) constituted a constructive discharge, all of
which resulted in emotional distress and the loss of annual
incentive bonuses.
The district court ruled that even though Vesprini had
adduced “direct evidence” of Shaw’s age-based animus, no rational
factfinder could determine either that any such animus constituted
a precipitating factor in Shaw's employment decisions, or that
Shaw’s alleged breach of the employment contract had occasioned the
loss of any bonuses to Vesprini. Vesprini v. Shaw Indus., Inc.,
221 F. Supp. 2d 44, 60, 61-62 (D. Mass. 2002).
II
DISCUSSION
A. “Mixed Motives”
Vesprini contends on appeal that the summary judgment
ruling was unwarranted, since he generated a trialworthy factual
dispute — as to whether the defendants had discriminated on the
6
basis of his age — simply by establishing, inter alia, the remarks
made by Houston and Mahan in 1997 regarding his age pursuant to the
“mixed-motive” standard of proof, see Price Waterhouse v. Hopkins,
490 U.S. 228, 266-67 (1989) (O’Connor, J., concurring). Under this
standard:
When a[n] [employee] presents direct evidence
of age discrimination, the [employer] must
then either "deny the validity or the
sufficiency of the [employee’s] evidence," and
"[have] the jury . . . decide[] whether the
[employee] has proved discrimination by a
preponderance of the evidence," or "prove that
it would have made the same decision even if
it had not taken the protected characteristic
into account."
Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 429 (1st Cir.
2000) (emphasis added; citations omitted).3
As Vesprini adduced no competent “direct evidence” of
Shaw’s age-based animus, however, he failed to generate any
trialworthy issue of fact enabling him to invoke the Price
Waterhouse paradigm. Although its exact contours remain somewhat
murky, the term “direct evidence” normally contemplates only those
"‘statements by a decisionmaker that directly reflect the alleged
animus and bear squarely on the contested employment decision.’"
3
In the district court, Vesprini engaged both the Price
Waterhouse and McDonnell Douglas standards of proof. See infra
Section II.B; Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572,
581 (1st Cir. 1999) (noting that plaintiff "may elect to proceed
simultaneously on both fronts” and "the trial court, at an
appropriate stage of the litigation, will channel the case into one
format or the other”).
7
Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 35 (1st
Cir. 2001) (quoting Febres v. Challenger Caribbean Corp., 214 F.3d
57, 60-61 (1st Cir. 2000)) (emphasis added). There were nonesuch
in the present case.
First, the remarks by Houston and Mahan were made some
one and one-half to two years before Shaw’s November 1999 decision
to exclude Vesprini from its business premises.4 The lack of
temporal proximity between these remarks and the ensuing
disciplinary action by Shaw severely undermines the reasonableness
of any inference that there existed a causal relationship between
4
Vesprini further contends that the district court should have
permitted him to recover for all the allegedly discriminatory acts,
see Vesprini, 221 F. Supp. 2d at 53-54, even those which occurred
more than 300 days prior to the MCAD discrimination charge (e.g.,
Mahan’s appointment as Circle Floor’s de facto president). On the
contrary, such “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely
filed charges. Each discrete discriminatory act starts a new clock
for filing charges alleging that act.” Nat’l R.R. Passenger Corp.
v. Morgan, 122 S. Ct. 2061, 2072 (2002). Nevertheless, Vesprini
may use "the[se] prior [time-barred] acts as background evidence in
support of [any] timely claim.” Id. (emphasis added).
Furthermore, we must reject Vesprini's contention that the
June 1999 actions, assigning him to a “small” office and failing to
order new business cards for him — though within the 300-day
limitations period — were discrete, actionable “adverse employment
actions” under the ADEA. Vesprini admitted that (i) Shaw consulted
him, prior to relocating SCFSI’s corporate headquarters, to
determine whether he wished to prescribe any specifications in
regard to his new office assignment, (ii) he elected to state no
preferences, and (iii) he never complained afterwards. Moreover,
deeming the “business card” matter a mere “oversight,” Vesprini
lodged no complaint with Shaw. See, e.g., Marrero v. Goya of P.R.,
Inc., 304 F.3d 7, 25 (1st Cir. 2002) (noting that minor changes in
employment conditions are not materially adverse where, inter alia,
employee never saw fit to complain to employer).
8
the remarks and the subsequent decisionmaking by Shaw. See Ayala-
Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1st Cir.
1996).5
Second, the comments made by Houston did not
unambiguously display an age-based animus. Instead, Houston simply
observed a fact of life: since Vesprini was “not going to be [with
Shaw] much longer,” the time had come for Vesprini (i) to "step
back and let the young stallions run the [day-to-day] business,”
and (ii) to mentor Scott Mahan and Michael Vesprini as the next
generation of Shaw executives. See, e.g., Birkbeck v. Marvel
Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994) (holding that
the statement, made two years prior to adverse employment action,
that “there comes a time when we all have to make way for younger
people,” did not create an inference of age discrimination, given
that it was stated as a “‘truism’ with no disparaging overtones”)
5
See, e.g., Kirk v. Hitchcock Clinic, 261 F.3d 75, 78 (1st
Cir. 2001) (finding that employer’s 1996 remarks, made in
connection with earlier time-barred discriminatory decision, were
not “direct evidence” relevant to a 1997 employment decision); see
also, e.g., Armbruster v. Unisys Corp., 32 F.3d 768, 779 (3d Cir.
1994) (finding remarks “too remote in time” to constitute “direct
evidence”); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 611 (7th
Cir. 2001) (noting that “temporal proximity is often crucial to the
[direct-evidence] inquiry,” and that two-year lapse between remark
and employment decision “defeat[s] the inference of a ‘causal nexus
between the remark and decision to discharge’”)(citations omitted);
Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000)
(same, remarks “two years prior to [employee’s] discharge”); Yates
v. Douglas, 255 F.3d 546, 549 (8th Cir. 2001) (same, remarks “one
to two years” before termination); Scott v. Suncoast Beverage Sales
Ltd., PMBA, 295 F.3d 1223, 1227-28 (11th Cir. 2002) (same, remarks
“two and one-half years before the termination”).
9
(citation omitted); see also EEOC v. Tex. Instruments, Inc., 100
F.3d 1173, 1181-82 (5th Cir. 1996) (same). As Houston himself was
fifty-seven years of age at the time he made these remarks, see 29
U.S.C. § 631(a) (defining the ADEA protected class as persons over
forty years of age), it is just as likely that his commiserative
statements to Vesprini simply reflected his “non-actionable
reflection on generational passage.” Birkbeck, 30 F.3d at 512
(discounting comparable remarks by fifty-two-year-old supervisor).
Thus, the remarks made by Houston are reasonably susceptible to an
entirely benign connotation, neither implausible nor
discriminatory. Such inherently ambiguous assertions normally do
not constitute “direct evidence” of an age-based animus. See
Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 583 (1st Cir.
1999).
Third, although the Mahan comments, arguably at least,
may imply something more in the way of an age-based antagonism than
do the statements made by Houston, see supra Section I (e.g.,
suggesting that Vesprini was incompetent at business and should
play golf instead), Vesprini adduced no evidence that Mahan was
involved in the November 1999 decision by Shaw to exclude Vesprini
from its workplace. At that time Mahan was on administrative leave
and Houston was the decisionmaker of record. Comments by non-
decisionmakers, such as Mahan, normally are not “direct evidence”
of age-based animus. See Melendez-Arroyo, 273 F.3d at 35.
10
B. Pretext
As the remarks made by Houston and Mahan are
insufficiently probative to constitute “direct evidence” of any
age-based animus on the part of Shaw, we need not consider whether
or not their remarks established a prima facie case for purposes of
the alternative evidentiary model outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). See supra note 3.
Even assuming, arguendo, that the Rule 56 proffer by Vesprini
contained sufficient circumstantial evidence to establish a prima
facie case of age discrimination, the burden of production simply
shifted to Shaw to articulate a nondiscriminatory reason for its
November 1999 employment decision. See Melendez-Arroyo, 273 F.3d
at 33. Shaw abundantly met its limited burden of production with
its explanation that Vesprini’s repeated use of profanity on
October 27, 1999, not only warranted expulsion from the workplace,
but directly contravened the "Standards of Ethical Conduct
Agreement” signed by Vesprini, thus explicitly empowering Shaw to
terminate Vesprini on the spot, without first resorting to any form
of progressive discipline. At that juncture, of course, it became
incumbent upon Vesprini to bear the burden of establishing that the
nondiscriminatory reason relied upon by Shaw was pretextual and
that the challenged employment action was motivated by an age-based
animus. See id. Vesprini failed to meet the burden of proof.
The Rule 56 proffer by Shaw describes, in lurid detail,
11
the profane language used by Vesprini in the workplace. See supra
note 2. Although Vesprini assertedly recalls using much milder
epithets (e.g., "son of a gun” and "God damn”), he nevertheless
concedes that he very well may have used the harsher and more
offensive profanities ascribed to him. Consequently, he has failed
to establish that the asserted basis for Shaw's decision to bar him
from its workplace was pretextual.6
Accordingly, the district court judgment is AFFIRMED.
6
Similarly, the district court orders dismissing the breach-
of-contract and constructive-discharge claims must be affirmed as
well. Not only did the expulsion of Vesprini from the workplace
offend no provision in the Employment Agreement, but the parties
explicitly contemplated that very prospect in the Standards of
Ethical Conduct Agreement. Moreover, given that Vesprini never
resigned, but instead fulfilled the remaining term of the three-
year employment contract, no constructive-discharge claim survived.
See Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 704 (1st Cir.
1993).
12