Webber v. International Paper Co.

United States Court of Appeals
For the First Circuit

No. 04-1796

GARY S. WEBBER,

Plaintiff, Appellant,

v.

INTERNATIONAL PAPER COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lipez, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Arthur J. Greif, with whom Julie D. Farr and Gilbert & Greif,
P.A. were on brief for appellant.
Jonathan P. Harmon, with whom McGuire Woods LLP was on brief
for appellee.

August 9, 2005
 CYR, Senior Circuit Judge. Gary S. Webber appeals from

the district court judgment which was granted to his former

employer, International Paper Company (“IP”), as a matter of law

notwithstanding the jury verdict which Webber obtained on his

state-law disability discrimination claim. We affirm the district

court judgment.

I

BACKGROUND

We relate the record evidence, and all reasonable

inferences therefrom, in the light most consistent with the jury

verdict. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 393 (1st

Cir. 2002). From 1983 and until his termination in 2001, Webber

was a mechanical draftsman for IP at its paper-manufacturing mill

in Bucksport, Maine. In 1986, he was promoted to the position of

“engineer,” a job description which required an engineering degree,

which Webber did not possess. In 1989, Webber was assigned to

oversee a $1.3 million construction project at the mill site

consisting of a chemical storage facility.

In 1997, Webber injured his knee while working

temporarily as a forklift operator. Surgery was required. Over

the years, Webber had heard other unspecified employees say that

“salaried people do not get hurt.” During his post-surgery

convalescence, Webber's then-immediate supervisor, Stephen Finley,

told Webber that his knee might heal faster if he lost twenty

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pounds. Finley and another supervisor, Lawrence Schaub, laughed at

Finley’s remark. Webber returned to work one month later. In

1999, he resumed his former duties as a project engineer, despite

the fact that his mobility was severely restricted, necessitating

his use of a cane.

Webber requested that IP provide him with several

accommodations, including permission to work from his home, reduced

work hours, special parking privileges, reassignment from a third-

floor to a first-floor office, and the installation of a “glide

chair” which would permit Webber to ride from his first-floor

office to the third-floor engineering department. IP granted all

of these requests. Another supervisor, Steve Moser, dubbed the

glide chair “the Costanza chair,” a reference to a character from

a popular television sitcom who used a glide chair to feign a work

disability.

In January 2001, Webber underwent total knee-replacement

surgery. One month later, a reduction-in-force plan, called

“Functional Fast,” was instituted by IP's national headquarters,

which would result in the elimination of 3000 employees nationwide.

In May 2001, Thomas Thompson, Webber’s immediate supervisor, asked

him how long it would be before his knee healed.

In June 2001, Fred Oettinger, the Bucksport mill manager,

learned that the overall workforce was to be reduced by 21

positions, which was to include an eight-employee reduction in

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“technical” (viz., non-manufacturing) staff (viz., from 47 to 39).

IP’s national office in Memphis informed Oettinger that other IP

mills of comparable size employed only six project engineers,

whereas Bucksport had ten. Rather than eliminate four project

engineers, however, Oettinger decided to cut only two positions.

Following consultations with the national office,

Oettinger eventually selected Webber and Wayne Jacobs for

termination. Oettinger notified supervisors Schaub and Moser of

the decision on Friday, June 22, 2001. Neither Schaub nor Moser

voiced objection. On the following Monday, Thompson approached

Webber and informed him: "you're the weakest link, you're gone."

Thereafter, Oettinger summoned Webber to a meeting, at which Webber

was notified of his termination. Adverting to the “quality and

quantity” of Webber’s work, Oettinger explained that he had based

his termination decision on the fact that Webber was the only one

of the ten engineers without an engineering degree, thus was less

capable than the other engineers of handling more complex

engineering projects.

In August 2001, Webber submitted a disability-based

employment discrimination claim against IP with the Maine Human

Rights Commission (MHRC), received a right-to-sue letter, and

commenced the instant diversity action in federal district court,

alleging that IP had violated the Maine Human Rights Act, Me. Rev.

Stat. Ann. ch. 5, § 4551 et seq. The district court denied the

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pretrial motion for summary judgment submitted by IP, as well as

its pre-verdict motion for judgment as a matter of law. In due

course, a jury returned a $3 million verdict against IP.

Thereafter, however, the district court granted IP’s

renewed motion for judgment as a matter of law and vacated the jury

verdict, citing the insufficiency of Webber’s evidence as to IP’s

discriminatory animus. Webber v. Int’l Paper Co., 326 F. Supp. 2d

160 (D. Me. 2004). Webber appeals from the judgment.

II

DISCUSSION

A. Standard of Review

A district court judgment entered as a matter of law is

subject to de novo review, which requires that we view all the

evidence, reasonable inferences, and credibility determinations in

the light most favorable to the nonmoving party (viz., Webber).

See Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23, 29-30 (1st Cir.

2004); Fed. R. Civ. P. 50(b). Moreover, we will affirm the ruling

only if we determine that the record, thus viewed, strongly and

overwhelmingly points to but one conclusion – that no reasonable

jury would have reached a contrary result. See Vazquez-Valentin,

385 F.3d at 29-30. Although the standard for setting aside a jury

verdict is plainly “stringent,” plaintiff-appellant Webber – who

bears the ultimate burden of proof – must have adduced more than a

“mere scintilla of evidence” supporting the elements of his state-

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law claim, id., and cannot prevail where the verdict necessarily

rests upon evidence which is overly speculative or conjectural.

See Ricci v. Alternative Energy Inc., 211 F.3d 157, 162 (1st Cir.

2000).

B. Prima Facie Evidence

As Webber adduced no direct evidence of discriminatory

intent, see Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225

F.3d 1115, 1128 (1st Cir. 2000) (describing the stringent

requirements of a “mixed-motive” case), his case was subject to the

so-called McDonnell-Douglas paradigm. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Fernandes v. Costa

Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999).

Accordingly, Webber was required to establish a prima facie case of

discrimination, by adducing competent evidence that (1) he was a

member of a protected class (viz., “disabled”); (2) he satisfied

his employer’s legitimate job performance expectations; (3) his

employer terminated him; and (4) his employer did not accord

similar treatment to persons outside the protected class. See

Thorndike v. Kmart Corp., 35 F. Supp. 2d 30, 33 (D. Me. 1999)

(MHRA); accord Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 184

(1st Cir. 2000). Once the plaintiff succeeds in establishing a

prima facie case, his employer must shoulder the burden to

articulate a legitimate, nondiscriminatory reason for the

plaintiff’s termination. See Reeves, 530 U.S. at 142. Once the

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employer satisfies that minimal burden of production, the plaintiff

must bear the ultimate burden of adducing sufficient evidence from

which a factfinder rationally might infer that the employer’s

articulated reason is a pretext for discrimination, and that the

real reason for the termination was discriminatory animus. See id.

In this endeavor, “‘many veins of circumstantial evidence . . . may

be mined’ . . . [and] [t]hese include – but are by no means limited

to – evidence of differential treatment, evidence of discriminatory

comments, statistical evidence, and comparative evidence.” Rathbun

v. Autozone, Inc., 361 F.3d 62, 72 (1st Cir. 2004) (citation

omitted).

The district court assumed arguendo that Webber had

satisfied his initial burden to establish a prima facie case,

shifting to IP the burden of production, see, e.g., Hall v. Giant

Food, Inc., 175 F.3d 1074, 1079 (1st Cir. 1999), and on appeal,

Webber does not contend that he established a prima facie case.

Instead, he urges three grounds for determining that the issue is

not properly before us.

First, Webber argues that IP waived this argument by

failing to include it in its motion for judgment as a matter of

law. But, of course, IP is not the appellant, and we may affirm a

district court judgment on any ground supported by the record on

appeal. See Geffon v. Micrion Corp., 249 F.3d 29, 35 (1st Cir.

2001).

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 Second, Webber maintains that he was not required to

establish that the eight engineers retained by IP were not

disabled, because, unlike such obvious attributes as race or

gender, disability (or lack thereof) is too difficult of proof. He

cites no authority for such an exception to the fourth element; nor

have we found any. Prima facie proof of coemployees’ non-

disability may be somewhat more fact-intensive than proof of their

race or gender, but the burden is neither unreasonable nor onerous.

Webber presumably had ample opportunity to discover this sort of

information, and had he proffered even minimally competent

testimony that the retained engineers suffered from no such

disability, IP would have had the burden to counter Webber’s

assertions with contrary evidence, if any existed. We can discern

no sound reason for excusing a claimant from adducing such

straightforward evidence as part of his prima facie case.

Finally, Webber argues that the sufficiency vel non of

his prima facie case was relevant only during trial, and that after

the jury verdict, the question became entirely moot. See United

States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715

(1983). However, Webber’s reliance on Aikens is misplaced. During

trial, the plaintiff’s failure to establish a prima facie case will

justify summary disposition, since the employer would not be

required to shoulder its burden to articulate a nondiscriminatory

reason for the plaintiff’s discharge. The McDonnell-Douglas

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paradigm was designed primarily as a procedural mechanism for use

in cases involving no direct evidence of discrimination, in order

to facilitate the orderly presentation of circumstantial evidence

of discrimination. If the employer fails, however, to move for

summary disposition at this procedural juncture – viz., when

plaintiff fails to state a prima facie case, and voluntarily

assumes its burden of production, the inadequacy of plaintiff’s

prima facie showing, standing alone, is no longer grist for the

summary judgment mill. See, e.g., Richardson v. Leeds Police

Dep’t, 71 F.3d 801, 805 (1st Cir. 1995).1

Webber’s argument is flawed, however, because he assumes

that, after trial, the total absence of evidence which would have

comprised his prima facie case is irrelevant to the decision

whether plaintiff met his burden of proof at the third stage of

McDonnell-Douglas. While the failure or weakness of a prima facie

showing will not alone constitute grounds for judgment for the

employer, it significantly weighs in the balance when we assess

whether the plaintiff adduced sufficient evidence overall from

which a jury rationally might infer that the employer’s articulated

reason constitutes a pretext for discrimination, and that the real

reason for the termination was discriminatory animus. See, e.g.,

1
This rule would not foreclose either a trial court or an
appellate court from dismissing a plaintiff’s claim after assuming
arguendo – as the district court did in the instant case – that the
plaintiff made an adequate prime facie showing. See, e.g., Hall,
175 F.3d at 1079.

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Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005)

(“Nonetheless, the evidentiary underpinnings of a plaintiff’s case

are not irrelevant or insulated from our examination to aid our

determination whether the evidence is sufficient to support a

finding of intentional discrimination.”); see also Schnabel v.

Abramson, 232 F.3d 83, 89 (2d Cir. 2000).

Webber admittedly failed either to adduce evidence that

the eight retained engineers were not disabled, or that IP had

terminated any other disabled employee. Indeed, the undisputed

evidence discloses that IP and Oettinger had an exemplary record of

granting accommodations to Webber and to other disabled employees.

Although arguably one might reasonably have expected that IP would

come forward with evidence in the event that any of these retained

engineers had been disabled, this is beside the point inasmuch as

IP did not have to bear that burden of proof. Webber’s attempt at

a prime facie showing was not merely weak. See Zapata-Matos v.

Reckitt & Colman, Inc., 277 F.3d 40, 47 (1st Cir. 2002) (noting

that “strength of plaintiff’s prime facie case” must be weighed

with “slight” evidence of pretext); Ricci, 211 F.3d at 162 (noting

that plaintiff’s case cannot rest on speculation). As Webber

adduced no evidence from which the jury rationally could have

determined whether the retained or terminated employees were

disabled, he completely failed to carry his burden of proof on the

fourth element of his prima facie case, which required that he

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demonstrate that IP either retained no employees who were disabled,

or terminated other employees who were disabled. Given this

evidentiary gap, we next turn to Webber’s other evidence of

discrimination.

C. The Evidence of Pretext

1. The Circumstantial Evidence of IP’s Discriminatory Intent

Webber points to evidence that his supervisors – Schaub,

Moser, and Thompson – had a history of making discriminatory

remarks concerning his disability. For instance, Schaub laughed

when another supervisor told Webber that his knee might heal faster

if he lost 20 pounds. Then, after IP installed the glide chair,

Moser referred to it as the “Costanza chair” – a reference to an

episode in the television sitcom “Seinfeld” wherein a character had

used such a chair lift to fake a disability.2 Immediately prior to

the time Oettinger notified Webber of his termination, Thompson

gloated: "You're the weakest link, you're gone."

Webber concedes – as he must – an utter absence of

evidence (i) that Schaub, Moser, or Thompson affirmatively conveyed

any alleged discriminatory animus to Oettinger, who was the

decisionmaker of record, see Cariglia v. Hertz Equip. Rental Corp.,

2
Additionally, we note that Webber failed to establish when
these remarks were made. See Gonzalez v. El Dia, Inc., 304 F.3d
63, 69-70 (1st Cir. 2002) (noting that the relevance of a
decisionmaker’s discriminatory remark wanes as the remark becomes
less proximate in time to the employment decision, thus less
closely related to it).

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363 F.3d 77, 85 (1st Cir. 2004) (discussing lack of “infection”),

or (ii) that Oettinger either independently harbored or

demonstrated any discriminatory animus toward Webber. Therefore,

any alleged animus on the part of Schaub, Moser, or Thompson is

relevant only if they participated in or influenced the decision to

terminate Webber. See Rodriguez-Torres v. Caribbean Forms Mfr.,

Inc., 399 F.3d 52, 60 (1st Cir. 2005); Cariglia, 363 F.3d at 85;

Marcano-Rivera v. Pueblo Int’l, Inc., 232 F.3d 245, 253 n.2 (1st

Cir. 2000).3

As Webber adduced no evidence that Thompson was involved

to any extent whatsoever in Oettinger’s decisionmaking, we need not

discuss any discriminatory remarks allegedly made by Thompson.

On the other hand, a somewhat closer question is

presented by the conduct of Schaub and Moser. Webber notes (i)

that Oettinger consulted with Schaub and Moser three days prior to

the termination, and (ii) that Moser decided to mull the issue over

during the weekend. IP counters that the purported animus on the

part of Schaub and Moser is irrelevant since Oettinger testified

(i) that he was the only decisionmaker regarding Webber’s

termination, (ii) that he simply notified Schaub and Moser of his

3
Webber contends that Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000), modified McDonnell-Douglas so as to
allow jury consideration of Schaub and Moser’s “stray remarks.” To
the contrary, Reeves involved remarks by the decisionmaker, rather
than by management personnel who were in no position either to make
or influence the employment decision. Id. at 151.

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final decision, and (iii) that neither Schaub nor Moser either

participated in or contributed to the decision. The truth is to be

found somewhere between these two characterizations, however.

Oettinger, who independently harbored no discriminatory

animus, did testify that he had made up his mind to terminate

Webber prior to the meeting with Schaub and Moser, and that he

consulted Schaub and Moser to reassure himself that he had not

overlooked any relevant facts. On the other hand, Moser testified

that he thought that he could have changed Oettinger’s mind had he

expressed disagreement with Oettinger’s decision. Thus, Moser’s

decision to mull over the decision during the weekend could support

a reasonable inference that Oettinger expected such input. In the

end, of course, Moser simply acquiesced in the Oettinger decision,

and there is no evidence that Moser ever told Oettinger that Webber

should be terminated. Be that as it may, we shall assume arguendo

that, even in the absence of any such direct, affirmative

communication between Oettinger and Moser, a supervisor’s silence

(viz., his discriminatory failure to utilize the veto power

conferred upon him by his employer) could constitute sufficient

“participation” or “influence” to warrant imputing Moser’s

purported animus to IP.

The pivotal question thus becomes: whether the jury

could rationally infer from these record facts that Moser

conceivably “influenced” the decision to fire Webber? We conclude

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that such an inference is excessively speculative to sustain the

jury verdict. The Moser testimony that he “believed” that he could

have changed Oettinger’s mind regarding the termination not only

conflicts with Oettinger’s assertion that his decision was final,

but even more importantly is unsupported by any other corroborative

evidence of Moser’s power to veto these decisions, either prior to

or following Webber’s termination. Furthermore, Oettinger

testified that he did not seek Moser’s opinion, but instead

intended to ascertain whether Moser was aware of any material

termination-related facts which Oettinger might have missed. Thus,

had Moser intervened, he would have had to supply facts, yet

Oettinger nonetheless would have remained the ultimate

decisionmaker. Thus, at best the record evidence could support

only a most tenuous inference that the Moser decision not to stand

up for Webber proximately caused the Webber termination.

2. The Nondiscriminatory Basis IP Proffered for the
Termination

In explicating its nondiscriminatory basis for selecting

Webber for termination, IP pointed to his lack of an engineering

degree, and a consequent, relative absence of experience with

sophisticated engineering projects while at IP. Webber argues on

appeal that the trial evidence generated a jury question as to

whether the reason articulated by IP was a pretext for

discrimination, in that (i) his job description had required that

he possess such a degree, yet IP let him work at IP as a project

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engineer for eighteen years without a degree; (ii) IP did not

establish that Webber was incapable of handling any type of

engineering project which was, or conceivably might be, undertaken

at IP; and (iii) Webber adduced evidence that he was better

“qualified” than four of the retained engineers with degrees.

A plaintiff may establish pretext by demonstrating, inter

alia, that the employer articulated a nondiscriminatory reason

which had no basis in fact, did not actuate the termination, or was

insufficiently weighty to motivate such a decision. See Hopkins v.

Electronic Data Sys. Corp., 196 F.3d 655, 662 (6th Cir. 1999); see

also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,

56 (1st Cir. 2000) (noting that plaintiff may prove pretext by

demonstrating "weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons such that a fact finder could infer that the

employer did not act for the asserted non-discriminatory reasons").

Webber met none of these criteria.

As a threshold argument, Webber urges that Oettinger gave

not one, but two independent reasons for the termination: (i)

Webber's lack of an engineering degree; and (ii) the quality and

quantity of Webber's past work performance. We do not agree.

The record discloses that Oettinger’s references to

“quality and quantity” were in explanation of, not in addition to,

the engineering degree requirement. That is to say, Oettinger did

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not use the term “quality” to imply that Webber’s job performance

had been deficient. Moreover, Oettinger testified that, for that

very reason, he had not consulted Webber’s job evaluations prior to

deciding to terminate him. Instead, Oettinger stated that the lack

of an engineering degree limited Webber's capacity to undertake

jobs of a particular “quality,” viz., more complex engineering

jobs, such as those involving the development and maintenance of

papermaking machinery. Webber admittedly had never undertaken jobs

of that nature or complexity, whereas the eight other engineers who

were retained had done so. For instance, Moser testified that

Webber would have been incapable of handling 30 out of 50

engineering projects, and that these projects often had $15 million

budgets. Webber’s most extensive project had involved the

construction of a chemical storage facility, and although the

project was budgeted at $1.2 million, it did not involve the

development and maintenance of papermaking machinery. Finally,

Webber’s other engineering experience at IP largely consisted of

this same type of construction and interior design or restoration

project.

Moreover, Webber contests neither the legitimacy nor the

necessity of the IP decision to engage in the RIF, nor that

Oettinger was compelled to eliminate some engineer positions at the

Bucksport plant. See Barnes v. GenCorp, Inc., 896 F.2d 1457, 1471

(6th Cir. 1990). In addition, pursuant to the “business judgment”

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rule an employer is free to terminate an employee for any

nondiscriminatory reason, even if its business judgment seems

objectively unwise. Fennell v. First Step Designs, Ltd., 83 F.3d

526, 537 (1st Cir. 1996) (“‘We may not sit as super personnel

departments assessing the merits – or even the rationality – of

employers’ nondiscriminatory business decisions.’”) (citation

omitted). By the same token, an employee’s opinion of the efficacy

of an employment decision, standing alone, cannot supplant the

employer’s business judgment. Id.

Under the business judgment rule, the possession of a

degree can be a reasonable criterion for retaining one employee

over another. See, e.g., Rea v. Martin Marietta Corp., 29 F.3d

1450, 1458 (10th Cir. 1994) (college degree); Barnes, 896 F.2d at

1471 (chemistry degree). Education, after all, can be a highly

significant and concentrated form of experience, and while not an

infallible indicium of competence, affords an employer some

objective assurance that an employee likely possesses the essential

knowledge necessary to perform routine tasks in his field of

expertise.

Webber nonetheless contends that he generated a jury

issue by showing that IP subsequently contracted away many of its

more complex engineering projects to outside engineering companies.

Not only does this contention seek to second-guess Oettinger’s

judgment that he should retain the eight engineers who possessed

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degrees, but it ignores the fact that – all things being equal – an

employer wisely retains those engineers with the latent capacity to

perform the most complex tasks, inasmuch as it follows that those

engineers could handle all engineering requirements from the

simplest to the most complex, whereas an engineer in Webber’s

position would not be capable of handling the complete spectrum of

projects. Although IP may have had the luxury of employing non-

degreed engineers like Webber to handle less complex projects prior

to its 2001 reduction-in-force, it would be entirely reasonable and

prudent to retain employees on its streamlined staff who could

handle the maximum number of projects in the future.4

Finally, Webber adduced no competent evidence that four

of the eight retained engineers were “less qualified” than he. On

cross-examination, defense counsel asked Webber whether four

specified engineers were more qualified than he, and Webber

responded in the affirmative. Since defense counsel did not

specifically ask him for his opinion as to the qualifications of

the other four retained engineers, Webber suggests that the jury

reasonably could have inferred that they were less qualified. Any

such inference would be pure speculation, of course. As the party

4
Given this contingency planning rationale, evidence that IP
has continued to do these types of less complex engineering
projects in house, while contracting out some of its more complex
projects, ultimately proves immaterial. Further, Moser testified
that, even when it outsourced a complex engineering project, IP
nonetheless assigned an in-house engineer to manage and oversee the
project.

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with the ultimate burden of proof, Webber was required to adduce

affirmative evidence as to the alleged inferior qualifications of

these four engineers. Even then, of course, IP persuasively may

have contended that its “business judgment” as to Webber’s and the

four engineers’ relative qualifications – rather than Webber’s

judgment – was entitled to considerable deference. See Fennell, 83

F.3d at 537.

The attempt to demonstrate pretext not only fails on its

own merits, but is undercut by the undisputed evidence that IP

granted Webber's and other disabled employees’ requests for

handicap accommodations.5 Like the glide chair installation, many

of these accommodations involved significant expense to IP.

3. Additional Evidence of Discrimination

Webber tenders two other peripheral circumstances to

establish that the articulated reason for IP’s adverse employment

action was a pretext. First, Webber had heard among IP employees

over the years the expression that “Salaried people do not get

hurt.” Accordingly, he contends that it is reasonable to infer

that this report represented a company policy designed to rid

itself of employees who suffered a work-related disability. We do

not agree.

Webber failed to establish the original source of this

5
Barbara Gray, an IP employee who had been diagnosed with
cancer and walked with a cane, testified that IP had granted her
all necessary accommodations to her disability.

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expression, hence it would be speculative to infer that any such

rumor was promulgated with either the knowledge or the approval of

IP management. See Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 5

n.8 (1st Cir. 1998) (“The identity of the speaker often is crucial

to ascertaining not only intent but any causal connection between

the remark and the alleged adverse action directed against the

plaintiff.”); see also Hein v. All Am. Plywood Co., 232 F.3d 482,

488 (6th Cir. 2000) (noting that evidence of employer’s

discrimination “cannot be based on rumors”). Furthermore, the

expression is ambiguous, as it also could be construed as mere

recognition of the truism that salaried employees – or those not

involved directly in the paper-manufacturing process and with heavy

machinery – were generally at less risk for work-related injuries.

See Fernandes, 199 F.3d at 583 (noting that “a statement that

plausibly can be interpreted two different ways – one

discriminatory and the other benign – does not directly reflect

illegal animus”). The trial record afforded the jury neither a

basis nor the context from which to ascertain which interpretation

was more plausible.

Webber notes also that IP transferred two engineers from

the engineering department to the maintenance department to prevent

their termination under the RIF, yet failed to make a similar

accommodation to Webber. In particular, he points out that IP

could have transferred him to the open position of supplier quality

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assurance (SQA) coordinator. Once again, we do not find such

evidence sufficiently probative of either pretext or discriminatory

animus. The transfer of the two engineers is irrelevant, even if

we were to speculate that they were not “disabled,” because both

possessed engineering degrees, and IP thus had an incentive to

retain their services with the company.

By the same token, Webber concedes that an employer

undertaking a RIF is not required to offer an employee a transfer

to another job position, see Pages-Cahue v. Iberia Lineas Aereas de

Espana, 82 F.3d 533, 538-39 (1st Cir. 1996) ("Appellants cite no

authority for the proposition that an employer conducting a

reduction in force must offer such transfers or relocations [to

lesser positions] – in fact, authority exists for the proposition

that employers face no such obligation."); see also Jameson v.

Arrow Co., 75 F.3d 1528, 1532 (11th Cir. 1996) ("We emphasize that

the ADEA does not mandate that employers establish an

interdepartmental transfer program during the course of a RIF.");

Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995) ("[T]he

ADEA does not mandate that employers establish an interdepartmental

transfer program during the course of a RIF; an employer incurs no

duty to transfer an employee to another position when it reduces

its work force for economic reasons."), but contends that Pages-

Cahue is factually distinguishable because IP had a stated policy

of retaining engineers (if possible) because of their value to the

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company. Webber’s contention mischaracterizes the record.

Oettinger testified simply that engineers were valuable to IP, and

did not testify to any “policy” regarding the retention of

engineers. In any event, the applicability of such policy to

Webber would be entirely speculative, in that it is unclear from

the context whether Oettinger was referring only to those employees

in possession of engineering degrees.6

III

CONCLUSION

Although unfortunate, the record discloses that Webber

failed to meet his burden of proof to show that the proximate cause

of his termination was IP’s discriminatory animus. Webber failed

to offer any evidence either that the employees retained in the RIF

were not disabled, or that any other terminated employees were

disabled. Moreover, he failed to show that any supervisor who

allegedly made discriminatory comments was in a position to

participate in or influence Oettinger’s decision to terminate

Webber. Webber likewise failed to demonstrate that IP’s proffered

reason for the termination – the fact that Webber was the only one

of ten engineers without an engineering degree – was either

pretextual or designed to mask its discriminatory intent.

Accordingly, the district court decision dismissing his

6
Shortly after Webber was terminated, IP offered to rehire him
in the SPQ coordinator position at his previous salary, and under
new supervisors, but Webber declined IP’s offer.

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MHRA claim must be affirmed.

Affirmed.

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