USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2176
JOSEPH ANTHONY FAUSTO,
Plaintiff, Appellant,
v.
JOHN J. WELCH, JR.,
ACTING SECRETARY OF AIR FORCE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Cyr, Boudin and Lynch,
Circuit Judges.
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Joseph Anthony Fausto on brief pro se.
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Donald K. Stern, United States Attorney, and Thomas E. Kanwit,
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Assistant United States Attorney, on brief for appellee.
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August 29, 1995
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Per Curiam. Plaintiff-appellant Joseph Anthony
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Fausto appeals pro se from entry of summary judgment
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disposing of his claim that the Air Force discriminated
against him, based on his gender, when it failed to hire him
as an administrative officer. For the following reasons, we
affirm.
I.
The relevant background is fully and accurately set
forth in the district court's memorandum and order, and we
need only provide a brief summary here. On May 29, 1984,
Fausto applied for the position of Administrative Officer,
GS-11, at an Air Force facility located in Wilmington,
Massachusetts. The evidence in the record establishes that
Fausto was one of eight candidates interviewed for this
position; that the candidates were scored after their
interviews; that Fausto received the lowest score; and that
Fausto's low score was due, in part, to his poor performance
during his oral interview.1 There is some evidence that the
highest scoring candidate, a woman, was offered the job and
declined for personal reasons. In any event, none of the
remaining candidates was offered the position. Instead, the
job was restructured as a GS-9 developmental position,
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1. Fausto suggests, without evidentiary basis, that the
other interviewees never existed. In addition, Fausto
submitted his own affidavit proclaiming that he had performed
well during his oral interview.
reannounced, and eventually offered to Rosemary Tremblay, a
woman who had been shouldering many of the job's
responsibilities for some months.
Having exhausted his administrative remedies, Fausto
filed suit in the district court against defendant-appellee
John J. Welch, Jr., Acting Secretary of the Air Force,
alleging discriminatory treatment in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. 2000e. Both
parties moved for summary judgment. The district court,
relying on the three-stage, burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
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(1973), found that Fausto had established a prima facie case
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of discrimination. The court found, however, that the Air
Force successfully had rebutted the presumption of
discrimination arising from Fausto's prima facie case by
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articulating a legitimate, non-discriminatory reason for its
decision, namely, Fausto's low candidate ranking. Finally,
the court concluded that Fausto had failed to submit evidence
sufficient to permit a reasonable factfinder to infer that
the Air Force discriminated against him because he is a male.
Accordingly, the court granted summary judgment in favor of
the Air Force.2
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2. Fausto also alleges in his complaint that he was the
victim of retaliation for filing a complaint with the Equal
Employment Opportunity Commission. The district court
granted summary judgment for the Air Force on this claim on
the ground that Fausto failed to present a prima facie case
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II.
The basic order and allocation of burdens of proof in a
Title VII discriminatory treatment case was limned by the
Supreme Court in McDonnell Douglas, 441 U.S. at 802-05, and
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expounded in St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742
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(1993). Where, as here, there is no direct evidence of
discrimination, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. See Smith
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v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994),
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cert. denied, 115 S. Ct. 1958 (1995). If the plaintiff
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establishes a prima facie case, the burden shifts to the
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employer to articulate a legitimate, non-discriminatory
reason for its decision. See Mesnick v. General Elec. Co.,
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950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 504 U.S. 985
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(1992). Finally, if the employer meets its burden, the
plaintiff must introduce sufficient evidence to show that the
employer's justification is a pretext and that the true
reason for its action is discriminatory. See Smith, 40 F.3d
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at 16. We review the grant of summary judgment de novo,
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viewing the evidence, and the reasonable inferences
therefrom, in a light most favorable to the party resisting
summary judgment. Woodman v. Haemonetics Corp., 51 F.3d
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1087, 1091 (1st Cir. 1995).
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of retaliation. Fausto does not argue that this was error,
and we deem the issue waived.
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A. Defendant's Burden of Production
Once Fausto made out a prima facie case of gender
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discrimination, the Air Force was required to articulate a
legitimate, non-discriminatory reason for its adverse
decision. Fausto argues that, in the procedural posture of a
motion for summary judgment, the district court impermissibly
judged the credibility of the affiants in determining that
the Air Force met its burden. Fausto also contends, relying
on Milton v. Weinberger, 645 F.2d 1070, 1079 (D.C. Cir.
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1981), that his low score, relative to the other candidates
who were interviewed, could not be used to justify his non-
selection. These arguments fail.
First, an employer's burden at the second stage is merely
a burden of production; it must introduce evidence which, if
"taken as true," would permit an inference that there was a
non-discriminatory reason for the adverse action. Hicks, 113
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S. Ct. at 2748. Second, Milton is inapposite. In Milton,
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the District of Columbia Circuit held that the relative
rankings of candidates before their interviews could not,
alone, serve as a legitimate reason for the non-selection of
the appellants where it was apparent that the selecting
official did not rely solely on these rankings to make his
decision. See Milton, 645 F.2d at 1079. In the instant
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case, the relative rankings introduced by the Air Force were
final rankings of the candidates after their interviews.
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Moreover, the Air Force introduced other evidence
demonstrating that Fausto's interview went poorly and that
the selecting officials believed he lacked the capacity to
perform the job. Under the circumstances, the Air Force met
its burden of production.
B. Plaintiff's Burden of Showing Discriminatory Animus
At the third and final stage, Fausto was required to
proffer sufficient evidence to prove by a preponderance of
the evidence that the Air Force's justification was merely a
pretext for gender discrimination. Woodman, 51 F.3d at 1091-
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92. We are persuaded that Fausto failed to meet this burden
essentially for the reasons stated by the district court. We
add the following.
Contrary to Fausto's suggestion, the fact that the Air
Force redacted the names of the other candidates and
identified them solely by their sex for purposes of its
summary judgment motion does not support an inference that
these candidates did not exist or that their scores were
fabricated. See Byrd v. Ronayne, 1995 WL 461827 at *3 (1st
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Cir. Aug. 9, 1995) (summary judgment cannot be defeated by
reliance "upon conclusory allegations, improbable inferences,
and unsupported speculation" (quoting Medina-Munoz v. R.J.
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Reynold Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))).
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We also reject Fausto's suggestion that summary judgment
was improper because he submitted evidence from which, he
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claims, it could be inferred that he was better qualified for
the position of administrative officer than was Rosemary
Tremblay.3 The unrebutted evidence that both male and
female candidates were passed over in the decision to
restructure the job makes improbable the inference that
Tremblay was offered the position at a lower grade because of
her gender. More importantly, the unrebutted evidence that
Fausto had the lowest ranking of the eight candidates
interviewed renders implausible the inference that gender
bias was a motivating factor in the decision not to select
him. Cf. Gilty v. Village of Oak Park, 919 F.2d 1247, 1253
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(7th Cir. 1990) (upholding grant of summary judgment where
race discrimination claimant would have placed no higher than
fifth on the eligibility list even in the absence of the
alleged discrimination).
Affirmed.
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3. Fausto submitted a copy of his form SF-171, a standard
government form providing detailed employment history, and a
copy of Rosemary Tremblay's resume.
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