United States Court of Appeals
For the First Circuit
No. 06-1606
HOWARD T. DOUGLAS,
Plaintiff, Appellant,
v.
J.C. PENNEY COMPANY, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Michael O. Shea, with whom Law Office of Michael O. Shea, P.C.
was on brief, for appellant.
Karla K. Longoria, for appellee.
January 18, 2007
TORRUELLA, Circuit Judge. Howard T. Douglas ("Douglas")
worked for J.C. Penney Company, Inc. ("J.C. Penney") from 1993
until he was terminated in March 2002. Douglas then sued J.C.
Penney for violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and Mass. Gen. Laws ch. 151B, claiming
damages for (i) discrimination, harassment, and a hostile work
environment because of his gender and race, and (ii)
discrimination, harassment, and a hostile work environment in
retaliation for filing complaints relating to race and gender
discrimination. The district court granted summary judgment on
all claims to J.C. Penney. Douglas v. J.C. Penney Co., 422 F.
Supp. 2d 260 (D. Mass. 2006). Douglas appeals the grant of summary
judgment. After careful consideration, we affirm.
I. Background
We review a district court's grant of summary judgment de
novo, giving the non-moving party the benefit of any reasonable
inferences. Cox v. Hainey, 391 F.3d 25, 27 (1st Cir. 2004). The
undisputed facts of this case are relatively straightforward.
Douglas is an African-American male. From 1993 until 1997, Douglas
worked at J.C. Penney stores in Michigan. During this time,
Douglas met the sales and inventory targets set for him by J.C.
Penney, and his supervisors rated him as a "high potential"
employee who was "promotable."
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In July 1997, Douglas was transferred to the Men's
Department in the J.C. Penney store in Holyoke, Massachusetts.
Douglas' first supervisor in Holyoke was Bill Lovan ("Lovan"), a
Caucasian male. Lovan continued to rate Douglas as "high
potential" and "promotable" in his 1997 and 1998 end-of-the-year
performance evaluations. However, by this time, Douglas was not
meeting his sales and inventory targets. In his 1999 performance
evaluation, Lovan no longer rated Douglas as "high potential." In
his 2000 end-of-the-year performance evaluation, Lovan gave Douglas
a "4" rating (out of 5, with 1 being the highest), meaning that
Douglas was not meeting expectations. That year, Douglas was
ranked 23rd out of 23 Men's Department managers in the Northeast
Region for sales. Douglas' performance evaluation for 2000 warned:
By the end of 90 days, we require that you
accomplish all the objectives set forth [and]
develop no new problem areas . . . . If you do
not earn back a "3" rating by the time you are
re-evaluated, your rating could be changed to
a "5" and your employment could be terminated.
Douglas does not allege that any of the performance evaluations up
to this point were influenced by race or gender bias.
In 2001, two major changes occurred at the Holyoke store.
First, Serena Olsen ("Olsen") replaced Lovan as store manager and
as Douglas' immediate supervisor. Olsen is a Caucasian female.
Second, the Holyoke store was remodeled, resulting in construction
and overall disruption to the store. During this period, the Men's
Department was moved to a different floor.
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Olsen's performance evaluation of Douglas at mid-year
2001 was slightly more critical than, but otherwise largely
consistent with, the end-of-year performance evaluation given by
Lovan for 2000. The mid-year 2001 evaluation noted, among other
problems, that Douglas lacked a "sense of urgency," that he failed
to meet "core standards," and that he did not adequately manage his
subordinates.1 This evaluation also stated that Douglas could be
terminated in 90 days if his performance did not improve. In March
2002, Olsen gave Douglas his final performance evaluation and
terminated him. This performance evaluation was similar to the
end-of-the-year evaluation given by Lovan for 2000 and the mid-year
2001 evaluation given by Olsen. This evaluation showed that
Douglas' sales had declined 9.2% in the past year, that his
department was one of the lowest-performing in the Holyoke store,
and that he was ranked 23rd out of 24 Men's Department managers in
sales. Douglas claims that Olsen's negative performance
evaluations were the result of race and gender bias.
Douglas identifies a number of incidents which he
perceived as indicating that Olsen discriminated against him on the
basis of race and gender. First, Douglas points to the fact that
Olsen failed to reprimand a co-worker for saying during a meeting,
"I can't believe we let those people dress like that," referring to
1
These evaluations were echoed in e-mails and other evaluations
provided to Olsen by other J.C. Penney employees.
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two young Hispanic female employees who had walked by the co-worker
earlier. Second, Douglas states that Olsen once referred to an
employee as a "young, black girl" when she usually referred to
employees by name; Douglas claims that he complained to Olsen about
the incident. Douglas further alleges that Olsen would often have
lunch with female employees and not invite him. Douglas also
contends that Olsen reprimanded him for cleanliness and absenteeism
issues when she did not reprimand other Caucasian or female
employees for the same problems. Lastly, Douglas points to a
decision to replace an African-American model with a Caucasian
model as evidence of bias. After this decision was made, Douglas
complained to Olsen that he thought that the decision was
discriminatory.
II. Discussion
The district court's thoughtful and thorough opinion
correctly resolved Douglas' claims; thus, we need only address the
main points of this case. When a plaintiff alleges discrimination
resulting in a Title VII violation, the plaintiff must first prove
a prima facie case by showing:
(1) [he] is a member of a protected class; (2)
[his] employer took an adverse employment
action against [him]; (3) [he] was qualified
for the employment [he] held; and (4) [his]
position remained open or was filled by a
person whose qualifications were similar to
[his].
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Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001)
(quoting Rodríguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15,
19 (1st Cir. 1999)); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). After the plaintiff establishes a prima
facie case, the burden shifts to the employer to establish a
legitimate, non-discriminatory reason for its adverse employment
action. Straughn, 250 F.3d at 33. If the employer demonstrates
such a reason, the burden returns to the employee to show that the
proffered reason was mere pretext, and that the true reason was
prohibited discrimination.2 Id. at 34.
The district court found that Douglas made a prima facie
case. We agree; the burden for establishing a prima facie case is
not onerous. Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir.
2003).
The district court also found that J.C. Penney had
identified a legitimate, non-discriminatory reason for terminating
Douglas' employment. There can be no question that, after more
than four years of declining sales and mediocre or poor job
performance, J.C. Penney was justified in showing Douglas the door.
2
Mass. Gen. Laws ch. 151B appears to be slightly less stringent,
in that it would allow a plaintiff to overcome a motion for summary
judgment if the plaintiff shows that just one of the proffered
reasons was pretextual. Joyal v. Hasbro, Inc., 380 F.3d 14, 17
(1st Cir. 2004) (citing Lipchitz v. Raytheon Co., 751 N.E.2d 360,
366 (Mass. 2001)). Even under this less stringent standard, as we
explain, we find that Douglas' allegations, even if true, fail to
prove any pretext whatsoever.
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Thus, the burden returned to Douglas to show that J.C.
Penney's identified reasons for terminating his employment were
mere pretext for racial or gender bias. Douglas has not come close
to satisfying this burden. Douglas largely relies on Thomas v.
Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999), in which we held
that a plaintiff could bring a claim where "an employer evaluates
employees of one race less favorably than employees of another race
who have performed equivalently, and . . . race, rather than some
other factor, is the basis for the difference in evaluations." Id.
at 58. We explained this holding by noting that "unlawful
discrimination can stem from stereotypes and other types of
cognitive biases, as well as from conscious animus." Id. at 59.
Douglas claims that Olsen evaluated him in a different fashion than
other Caucasian or female employees at J.C. Penney, and that this
may have stemmed from stereotypes or other cognitive biases.
However, in Thomas, we relied on the fact that the
disparities in subjective performance evaluations between employees
of different races did not correlate with the individualized
objective performance factors for those employees. Id. at 62-63.
The same cannot be said in Douglas' case, where his performance
evaluations showed not only subjective evaluations of poor
performance, but also that Douglas consistently failed to meet the
numerical sales and inventory targets set for him on a yearly
basis. In particular, J.C. Penney presented evidence that by 2002,
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Douglas' sales were less than 75% of what they were in 1997.
Douglas attempts to explain his poor performance on the basis of
the disruption caused by construction at the Holyoke store. He
claims that the Men's Department suffered greater disruption than
other departments and argues that his sales targets ought to have
been adjusted to take account of that interference. J.C. Penney
responds that the entire store experienced some losses, but that
Douglas' department performed at a lower level than other
departments during the construction. We note that at the same time
that Douglas was terminated, J.C. Penney also terminated a
Caucasian manager of another underperforming department at the
Holyoke store. J.C. Penney also points out that Douglas'
evaluations began to show a decline in his performance prior to the
start of construction. Thus, there is little evidence that
similarly situated employees at the Holyoke store were treated
differently because of race or gender.
Furthermore, Douglas' allegations, even if true, have not
established that the disparities in performance evaluations were
due to race or gender bias. Douglas' performance evaluations were
poor both in 2000, when he does not allege any race or gender bias,
and in 2001, when he does allege bias. As for specific incidents
that demonstrate race bias, Douglas identifies at most one possibly
racially-tinged comment by a co-worker who was not Douglas'
supervisor and as such is irrelevant, see Medina-Muñoz v. R.J.
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Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990) ("The biases
of one who neither makes nor influences the challenged personnel
decision are not probative in an employment discrimination case."),
and a few ambiguous comments by Olsen, which alone are insufficient
to prove bias, see Straughn, 250 F.3d at 36 (holding that stray
remarks might be considered evidence of bias only in combination
with other evidence and if they were temporally close to the
adverse employment decision). Further, Douglas presents no
evidence of gender bias other than the fact that Olsen had lunch
with female friends instead of himself. A supervisor's decision
not to socialize with an employee during lunch is simply
insufficient to prove gender discrimination.
Douglas' claims of retaliation and hostile work
environment are similarly unsupportable. To establish a prima
facie case for a hostile work environment claim, a plaintiff must
prove:
(1) that [he] is a member of a protected
class; (2) that [he] was subjected to
unwelcome sexual [or racial] harassment; (3)
that the harassment was based upon sex [or
race]; (4) that the harassment was
sufficiently severe or pervasive so as to
alter the conditions of plaintiff's employment
and create an abusive work environment; (5)
that sexually [or racially] objectionable
conduct was both objectively and subjectively
offensive, such that a reasonable person would
find it hostile or abusive and the victim in
fact did perceive it to be so; and (6) that
some basis for employer liability has been
established.
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O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001).
Douglas has offered no evidence that would support a finding that
his work environment was "objectively and subjectively offensive,
one that a reasonable person would find hostile and abusive, and
one that the victim in fact did perceive to be so." Noviello v.
City of Boston, 398 F.3d 76, 92 (1st Cir. 2005). To establish a
claim of unfair retaliation, a plaintiff needs to prove that
protected conduct and an adverse employment action are causally
linked. Id. at 88. Douglas offered no evidence on causation, and
thus, this claim must fail too.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
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