March 8, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1556
KATHY SMITH,
Plaintiff, Appellant,
v.
F.W. MORSE & CO., INC.,
Defendant, Appellee.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on February 12, 1996, is
corrected as follows:
On page 21, line 15, change "(1st Cir. 1995)" to "(1st Cir.
1996)"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1556
KATHY SMITH,
Plaintiff, Appellant,
v.
F.W. MORSE & CO., INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Debra Weiss Ford, with whom Edmond J. Ford, Eileen L.
Koehler, and Ford, Ford & Weaver, P.A. were on brief, for
appellant.
Raymond P. Blanchard, with whom Taylor, Keane & Blanchard,
P.A. was on brief, for appellee.
February 12, 1996
SELYA, Circuit Judge. In this appeal, the plaintiff
SELYA, Circuit Judge.
invites us to overrule the district court's adverse decision
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-2000e-17 (1988) (Title VII), and to reinstate her common
law causes of action for breach of contract and wrongful
discharge. We decline the invitation in all its aspects.
I. BACKGROUND
I. BACKGROUND
We chronicle the events that preceded the filing of
suit and then recount what transpired thereafter.
A. Chronology of Events.
A. Chronology of Events.
Damar Plastics & Metal Fabricators, Inc. (Damar)
operated a job shop in Somersworth, New Hampshire, where it
crafted custom components for high-technology applications.
Plaintiff-appellant Kathy Smith joined Damar in 1976 and advanced
steadily through the ranks until she reached the position of
production manager almost a decade later. In that capacity,
Smith scheduled production runs and coordinated delivery dates.
In late 1987, after an imbroglio with Darrol Robinson (Damar's
owner and general manager), she requested and obtained
reassignment to a different post having no responsibility for
production scheduling.
On December 23, 1988, defendant-appellee F.W. Morse &
Co., Inc. (Morse), a firm owned by Chris Bond, acquired Damar's
business and assets. Damar then had fewer than forty employees,
including seven managers reporting directly to Robinson: Michael
Hickman (production control); Robert Lane (shipping); Ronald
3
Paradis (production/machining); Marc Shevenell (production/sheet
metal); Gary Bickford (engineering); Michael Seeger (sales); and
Smith. Though not titled, Smith testified that she was
considered to be a de facto manager who, largely because of
Hickman's inadequacies, performed many of the duties of the
production control manager.
Bond promptly concluded that Damar had too many chiefs
and too few Indians. Within days of the closing, he fired
Hickman. Then, in concert with Maryann Guimond, the new general
manager (who had authority to hire, fire, and discipline
personnel), he interviewed a number of employees, including
Smith. In the aftermath of this review, the company cashiered
Lane. To fill the void created by the two executive-level
departures, Morse promoted Smith to the newly created position of
materials manager, consolidating responsibilities for scheduling,
production control, inventory control, purchasing, shipping, and
receiving that had previously been spread among three managers.
All told, Morse's initial reorganization efforts
substituted Guimond for Robinson and pared second-echelon
management from seven to five. In addition to Guimond, the
reconfigured management team comprised Paradis (machining);
Shevenell (sheet metal); Bickford (engineering); Seeger (sales);
and Smith (materials). In recognition of Smith's increased
responsibilities, Morse twice hiked her pay (once in January and
again in March), thus increasing her weekly stipend by roughly
twenty-five percent.
4
At about the time of the takeover, Smith informed Bond
that she had become pregnant and would need a maternity leave.
Morse, a tiny company, had no formal maternity leave policy.
Bond nonetheless honored Smith's request and assured her that her
position was "secure." In preparation for her leave, Smith held
several meetings with Guimond, Shevenell, and Paradis. The
company temporarily distributed her managerial duties among other
supervisors and arranged for a newly-hired secretary, Kelly
Gilday, to perform her clerical functions. Along the way,
Guimond informed Smith that either Paradis or Shevenell likely
would be discharged, and told her that she would be promoted
again upon her return from maternity leave. Guimond also
indicated that, in all probability, Bickford would be demoted,
and Smith would be asked to assume a portion of his duties.
While these changes presumably would warrant increased
remuneration, Guimond did not mention an amount.
On April 7, 1989, Smith began her maternity leave,
planning to return to work in approximately six weeks. She gave
birth two weeks later. Meanwhile, Guimond, expecting the "sky to
fall," held regular "reality check" meetings with Shevenell and
Paradis. To her surprise, the plant functioned very well.1
Guimond reported the good news to Bond.
Smith visited the plant on May 1 and informed Guimond
that she wished to return to work one week earlier than
1During this same time frame, the company eliminated the
engineering manager's position. However, Bickford remained with
Morse in a lesser capacity.
5
originally anticipated. Guimond inquired about whether Smith
desired more children, and Smith replied affirmatively. The
following day, Guimond queried Karen Vendasi, Smith's sister and
co-worker, about Smith's plans to have a larger family. Vendasi
relayed this conversation to Smith and told her of nascent rumors
to the effect that she might not return to work. Smith contacted
Guimond and demanded an explanation. Guimond denied any
knowledge of the rumors, dismissed them as idle buzznacking, and
again assured Smith that her job was secure. Guimond repeated
these assurances during a chance meeting on May 4.
A few days later, Guimond concluded that the materials
manager's position was superfluous and decided to eliminate it.
She told Smith of her decision on May 11. During this telephone
conversation, Guimond asked Smith if she preferred people to be
told that she had decided to stay at home with her infant child
rather than that she had been discharged. Smith rejected the
suggestion. Nevertheless, a Morse employee repeated this canard
to several customers.2
Following Smith's severance, Guimond gave most of her
duties to Paradis in his new capacity as operations manager.
Shevenell assumed the role of manufacturing manager (in charge of
both machining and sheet metal work). Guimond also promoted two
lower-ranking employees, Peter Lapanne and Brian Hoffman, to
assistant manager positions (though evidence adduced at trial
2The company reprimanded the employee and trial testimony
tended to establish that Morse had not authorized the comments.
6
demonstrated that Lapanne had been an assistant manager as far
back as 1984, and that neither man assumed any new
responsibilities or received any salary increase in connection
with his new title). Gilday continued to perform the clerical
functions associated with Smith's former position. When the
second round of the reorganization wound down, the plant had
three second-echelon managers Paradis (operations); Shevenell
(manufacturing); and Seeger (sales) in lieu of the original
seven.
B. Procedural History.
B. Procedural History.
Smith sued Morse in a New Hampshire state court
alleging, inter alia, wrongful discharge based on gender
discrimination, intentional infliction of emotional distress, and
breach of contract. Morse removed the case to federal district
court on the ground that Smith's claim "arose under" Title VII,
thus prompting federal question jurisdiction. See 28 U.S.C.
1331, 1343(c)(3), 1441, 1446; see also 28 U.S.C. 1367
(conferring ancillary jurisdiction over appended nonfederal
claims). Smith thereafter filed an amended complaint that made
her Title VII claim explicit.
Early in the proceedings, Morse moved for partial
summary judgment. The district court (Stahl, J.) granted the
motion on the common law wrongful discharge and emotional
distress claims. See Smith v. F.W. Morse & Co., No. 90-361-S,
slip op. at 12 (D.N.H. Sept. 26, 1991) (unpublished) (Smith I).
Several years later, the parties simultaneously tried
7
the Title VII claim to the bench (McAuliffe, J.) and the breach
of contract claim to a jury.3 At the close of the plaintiff's
case, the district court entered judgment as a matter of law in
the defendant's favor on the breach of contract claim and
disbanded the jury. The Title VII case proceeded before the
district judge. Morse asserted that it scrapped the materials
manager's position and laid off the appellant as part of an
overarching strategy to streamline a top-heavy managerial
structure, and that even if Smith had not been on maternity leave
she would have been flattened by the downsizing steamroller. The
district court agreed and entered judgment accordingly. See
Smith v. F.W. Morse & Co., 901 F. Supp. 40, 45 (D.N.H. 1995)
(Smith II). This appeal ensued.
II. THE TITLE VII CLAIM
II. THE TITLE VII CLAIM
The crown jewel of the appellant's asseverational array
is her contention that the district court erred in finding that
Morse did not discriminate against her on the basis of her sex.
Our appraisal of this contention is in three parts.
A. Standard of Review.
A. Standard of Review.
Following a bench trial, the court of appeals reviews
3The Civil Rights Act of 1991, Pub. L. 102-166, 102, 105
Stat. 1071, 1073 (1991) (codified at 42 U.S.C. 1981a(c)(1)),
authorizes trial by jury in Title VII cases. Since the events
that form the basis of the appellant's claim occurred prior to
the effective date of the 1991 Act, she had no right to a jury
trial on her Title VII claim. See Landgraf v. USI Film Prods.,
Inc., 114 S. Ct. 1483, 1487 (1994) (holding that the 1991 Act is
not retroactive). By like token, the Price Waterhouse framework
for proof of "mixed-motive" discrimination that we describe in
Part II(B), infra, is somewhat changed under the 1991 Act. See
Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995).
8
the trier's factual determinations for clear error, see Cumpiano
v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Fed.
R. Civ. P. 52(a), but affords plenary review to the trier's
formulation of applicable legal rules, see Johnson v. Watts
Regulator Co., 63 F.3d 1129, 1132 (1st Cir. 1995). The
jurisprudence of clear error constrains us from deciding factual
issues anew. See, e.g., Jackson v. Harvard Univ., 900 F.2d 464,
466 (1st Cir.), cert. denied, 498 U.S. 848 (1990); Keyes v.
Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir. 1988).
Indeed, we may not disturb the district court's record-rooted
findings of fact unless on the whole of the evidence we reach the
irresistible conclusion that a mistake has been made. See
Cumpiano, 902 F.2d at 152; RCI Northeast Servs. Div. v. Boston
Edison Co., 822 F.2d 199, 203 (1st Cir. 1987).
This deferential standard extends not only to factual
findings simpliciter but also to inferences drawn from the
underlying facts. See Cumpiano, 902 F.2d at 152. Similarly,
findings regarding an actor's motivation fall within the shelter
of Rule 52(a), and, therefore, if the trial court's reading of
the record on such an issue is plausible, appellate review is at
an end. See Foster v. Dalton,71 F.3d 52, 56-57 (1st Cir. 1995);
Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991).
B. The Jurisprudence of Title VII.
B. The Jurisprudence of Title VII.
Title VII provides, inter alia, that it is an unlawful
employment practice for an employer to discharge an individual
because of her sex. See 42 U.S.C. 2000e-2(a)(1). After the
9
Supreme Court held that this phraseology did not proscribe
discrimination on the basis of pregnancy, see General Elec. Co.
v. Gilbert, 429 U.S. 125, 145-46 (1976), Congress augmented Title
VII by enacting the Pregnancy Discrimination Act of 1978 (PDA),
Pub. L. 95-555, 1, 92 Stat. 2076, 2076 (1978) (codified at 42
U.S.C. 2000e(k)). The PDA made clear that:
The terms "because of sex" or "on the basis
of sex" include, but are not limited to,
because of or on the basis of pregnancy,
childbirth, or related medical conditions;
and women affected by pregnancy, childbirth,
or related medical conditions shall be
treated the same for all employment-related
purposes, including receipt of benefits under
fringe benefit programs, as other persons not
so affected but similar in their ability or
inability to work.
42 U.S.C. 2000e(k). Thus, at the time Smith and Morse parted
company, Title VII's ban on gender discrimination encompassed
pregnancy-based discrimination.
Like other Title VII plaintiffs, an employee claiming
discrimination on the basis of pregnancy may proceed under either
a disparate treatment or a disparate impact theory. See
generally Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579-
80 (1978) (explaining the dichotomy). Here, the appellant
alleged disparate treatment. Consequently, she had the burden of
proving that the defendant purposefully terminated her employment
because of her pregnancy.
In cases predating the Civil Rights Act of 1991, see
supra note 3, the framework for proving intentional
discrimination varies depending on the availability of direct
10
evidence. See Fields v. Clark Univ., 966 F.2d 49, 51-52 (1st
Cir. 1992), cert. denied, 113 S. Ct. 976 (1993); Cumpiano, 902
F.2d at 153. Absent the evidentiary equivalent of a "smoking
gun," the plaintiff must attempt to prove her case by resort to a
burden-shifting framework. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 254-56 (1981); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). Under this framework, a
plaintiff can establish a prima facie case of pregnancy
discrimination by showing that (1) she is pregnant (or has
indicated an intention to become pregnant), (2) her job
performance has been satisfactory, but (3) the employer
nonetheless dismissed her from her position (or took some other
adverse employment action against her) while (4) continuing to
have her duties performed by a comparably qualified person. See,
e.g., Cumpiano, 902 F.2d at 153; Lipsett v. University of P.R.,
864 F.2d 881, 899 (1st Cir. 1988). Establishing the prima facie
case raises a rebuttable presumption that discrimination sparked
the adverse employment action, see Cumpiano, 902 F.2d at 153, and
imposes upon the employer a burden to put forward a legitimate,
nondiscriminatory motive for the action. See Burdine, 450 U.S.
at 254-55; Lipsett, 864 F.2d at 899. If the defendant clears
this modest hurdle, the presumption of discrimination vaporizes,
see Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir.
1991), cert. denied, 504 U.S. 985 (1992),4 and the plaintiff
4Mesnick is a case brought under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. 621-634, rather than under
Title VII. The same burden-shifting framework applies in both
11
(who retains the ultimate burden of persuasion on the issue of
discriminatory motive throughout) must then prove that the
employer's proffered justification is a pretext for
discrimination, see St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.
2742, 2749 (1993); Mesnick, 950 F.2d at 823-24.
On the relatively rare occasions when a smoking gun is
discernible that is, when a plaintiff produces direct evidence
that the protected characteristic was a motivating factor in the
employment action the McDonnell Douglas framework is
inapposite. See Fields, 966 F.2d at 52. In those cases, direct
evidence of discriminatory motive say, an admission by the
employer that it explicitly took actual or anticipated pregnancy
into account in reaching an employment decision serves to shift
the burden of persuasion from employee to employer. The latter
must then affirmatively prove that it would have made the same
decision even if it had not taken the protected characteristic
into account. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258
(1989) (plurality op.); id. at 265-67 (O'Connor, J., concurring).
The seeming neatness of this dichotomy is illusory in
certain respects, for evidence rarely comes in tidy,
geometrically precise packages. In many cases, the line between
McDonnell Douglas, on one hand, and Price Waterhouse, on the
other hand, is blurred. In those situations, classification
instances; therefore, ADEA cases have solid precedential value in
Title VII litigation. Hence, we cite herein interchangeably to
Title VII and ADEA cases, often without distinguishing between
them.
12
depends on both the quantity and quality of the proof that a
court deems sufficient to constitute direct evidence of
discriminatory animus.
Discretion is sometimes the better part of valor, and
courts often wisely decide to sidestep difficult theoretical
questions if answers to them are not essential to the proper
resolution of a given case. We have here a good example of such
a prudential approach. The trial court largely bypassed any
differential direct evidence/circumstantial evidence tamisage,
preferring to go directly to a finding that, on the totality of
the evidence presented, Morse had proven that gender
discrimination did not trigger the firing. See Smith II, 901 F.
Supp. at 44-45. This approach negates any need for us to pursue
the question of an analytic framework to a definite conclusion.
While we agree with our concurring colleague that the decisional
process is important, there comes a point at which slavish
insistence upon process for its own sake serves only to exalt the
trappings of justice over its substance. Here, the district
court's finding on causation, if sustainable, resolves the Title
VII claim whether the appellant's prima facie case arises under
the McDonnell Douglas or Price Waterhouse paradigm. And as we
illustrate below, see infra Part III(C), that finding passes
muster.
C. The Merits.
C. The Merits.
Consistent with the district court's approach, Morse
must be assumed to have had the burden of proving that it would
13
have taken the same action the elimination of the materials
manager's position whether or not the appellant became
pregnant, took a maternity leave, or planned to bear more
children. The court found that Morse carried the devoir of
persuasion on this pivotal issue. It concluded that Morse's
decision was "motivated by business judgment and represented an
effort to economize by placing the most qualified personnel in
the fewest number of managerial positions possible, and was not
based on plaintiff's gender, pregnancy, or her expressed desire
to have more children." Smith II, 901 F. Supp. at 44. The court
also concluded "that even if Guimond is assumed to have
considered impermissible gender-based factors, the same decision
to eliminate plaintiff's position would still have been made at
the same time" for reasons of business necessity. Id. The crux
of our inquiry is whether these findings are clearly erroneous.
There is little doubt that an employer, consistent with
its business judgment, may eliminate positions during the course
of a downsizing without violating Title VII even though those
positions are held by members of protected groups (pregnant women
included). See, e.g., LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,
844-45 (1st Cir. 1993), cert. denied, 114 S. Ct. 1398 (1994);
Goldman v. First Nat'l Bank, 985 F.2d 1113, 1118-19 (1st Cir.
1993); Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100,
105, 107 (2d Cir. 1989); Dister v. Continental Group, Inc., 859
F.2d 1108, 1115 (2d Cir. 1988); Pearlstein v Staten Island Univ.
Hosp., 886 F. Supp. 260, 268-69 (E.D.N.Y. 1995). This is merely
14
a reflection of a central theme that permeates the relevant
jurisprudence: insofar as Title VII is concerned, an employer
can hire or fire one employee instead of another for any reason,
fair or unfair, provided that the employer's choice is not driven
by race, gender, pregnancy, or some other protected
characteristic. See Foster, 71 F.3d at 56; Keyes, 853 F.2d at
1026; see also Freeman v. Package Mach. Co., 865 F.2d 1331, 1341
(1st Cir. 1988) (elucidating similar proposition in ADEA case).
The flip side of the coin, however, is that an employer who
selectively cleans house cannot hide behind convenient euphemisms
such as "downsizing" or "streamlining." Whether or not trimming
the fat from a company's organizational chart is a prudent
practice in a particular business environment, the employer's
decision to eliminate specific positions must not be tainted by a
discriminatory animus. See Goldman, 985 F.2d at 1118 n.4;
Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992);
Mesnick, 950 F.2d at 825; Pearlstein, 886 F. Supp. at 268-69.
Against this backdrop, we believe that the evidence
adequately supports the trial court's findings. When Morse took
over, Damar had an inordinately high ratio of managers to workers
and the managers' responsibilities overlapped.5 Both Bond and
Guimond testified that from the very start they believed that
Damar's sprawling organizational structure defied rhyme or
reason. Accordingly, they set out to compress some of the
5To cite an example, Damar split the responsibility for
manufacturing between two managers (Shevenell and Paradis), a
situation that, in appellant's own phrase, caused daily "chaos."
15
sprawl. The district court credited their intention, noting that
the witnesses' actions matched their stated objective. More to
the point, Guimond testified that she terminated the appellant
"because I had a position that I no longer felt needed to be
filled." Bond testified in the same vein, indicating that he,
too, had become convinced that Smith's position was expendable.
The court accepted this evidence, concluding that the materials
manager's position would have been eliminated within the same
time frame whether or not Smith had taken a maternity leave.
In our view, this determination, while not inevitable,
is supportable. In the first place, the record strongly suggests
that, in fact, the position was expendable. In the second place,
any other choice would have entailed a loss of engineering
expertise that Damar could ill afford.6 In the third place, the
court's view is bolstered by the reception that the appellant
originally received from the new ownership. Bond and Guimond
apprised her of the planned downsizing and assigned her
significant new responsibilities when other managers were
dismissed. They also promoted her and increased her
compensation. These actions, undertaken with full knowledge that
the appellant was pregnant and would be taking a six-week
maternity leave, are inconsistent with a bias against pregnant
6Bond testified that he purchased Damar to acquire its
engineering talents. Paradis and Shevenell were highly trained
and experienced engineers, while Smith had no such credentials.
When Morse discovered that it could function with one less
manager, the decision to retain Paradis and Shevenell, and
dismiss Smith, seems quite plausible.
16
employees. In the fourth place, the district judge, sitting as
the trier of fact, had the right to credit Bond's testimony that
the "maternity leave never played a role in itself" because the
same decision "would have been made in a very close time frame,"
and Guimond's testimony to like effect. In a bench trial, such
credibility judgments are the judge's prerogative. See Anthony,
952 F.2d at 606.
To be sure, the record could support a less innocuous
conclusion. The chronal proximity of Guimond's questions anent
Smith's plans to have more children and her dismissal, Guimond's
ill-advised suggestion that customers and employees be told that
Smith decided to stay at home to care for her daughter, and
Smith's termination while on maternity leave are troubling so
much so that we, if free to write a palimpsest, might have
characterized the impetus behind the appellant's ouster
differently. But whether the trial court could have drawn an
inference of discriminatory intent is not the test. See Foster,
71 F.3d at 55; Keyes, 853 F.2d at 1027. As long as a contrary
inference is also supportable and that is the situation here
then it is for the trial court, not the court of appeals, to call
the tune. After all, "when there are two permissible views of
the evidence, the factfinder's choice between them cannot be
clearly erroneous." Johnson, 63 F.3d at 1138 (citing Anderson v.
City of Bessemer City, 470 U.S. 564, 574 (1985)).
In an effort to evade the force of this principle, the
appellant hauls two further arguments from her bag. First, she
17
asseverates that Morse did not in fact eliminate her position,
and that the district court's contrary finding, see Smith II, 901
F. Supp. at 43, is itself clearly erroneous. This asseveration
leads down a blind alley.
When an employer defends an employment discrimination
case on the ground of position elimination, the position may not,
like a Dali painting, fade from one image to another only for the
first image to reemerge at the blink of an eye. See Gallo v.
Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219,
1226-28 (2d Cir. 1994); LeBlanc, 6 F.3d at 846; Barnes v. GenCorp
Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878
(1990). Yet, a position elimination defense is not defeated
merely because another employee, already on the payroll, is
designated to carry out some or all of the fired employee's
duties in addition to his own, or because those duties are
otherwise reallocated within the existing work force. See
LeBlanc, 6 F.3d at 846; Barnes, 896 F.2d at 1465. The
elimination of a position signifies the employer's belief that it
can get by with one less helper; it does not necessarily convey a
belief that the work the employee had been doing was superfluous
and need not be performed at all.
Here, the undisputed evidence before the district court
indicates that after Guimond dismissed Smith, the position that
Smith had occupied materials manager fell into desuetude.
There is no basis in the record for a suggestion that Lapanne or
Hoffman assumed any of the appellant's former duties; those
18
duties, which Paradis, Shevenell, and Gilday had performed during
Smith's leave, continued to be performed by them (or, at least,
by Paradis and Gilday). In short, the second round of the
reorganization (which cost Smith her job) bore a striking
resemblance to the first round (which gave Smith her promotion to
materials manager). Given these facts, the district judge's
determination that Morse eliminated the appellant's position is
unimpugnable.
The appellant next endeavors to surmount the sharp
escarpment of the clearly erroneous rule by casting a hook at the
legal standard applied by the trial court. This is a
theoretically sound way to climb the mountain, see, e.g.,
Reliance Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d
575, 577 (1st Cir. 1989) (explaining that appellate courts review
questions of law de novo, even after a bench trial), but in this
case the hook does not hold. The appellant's thesis is as
follows. She says that Title VII prohibits an employer from
dismissing an employee while she is on maternity leave even if
the employer, in the process of rationalizing its work force,
discovers that her position is redundant and eliminates it for
that reason.
Refined to bare essence, this thesis suggests that,
since Morse would not have discovered the redundancy at that time
(if ever) but for the fact that Smith took a maternity leave, the
19
leave brought about the firing.7 And the appellant attempts to
drive this point home by citing Bond's testimony that "because"
Smith was out on maternity leave, Morse was able to discover that
her position was expendable testimony which the appellant
optimistically equates with an admission that Morse dismissed her
"because" of her pregnancy. With respect, we believe that this
argument, which seeks to apply a black-letter legal principle in
a totally mechanical fashion, plays mischievously on the
mendacity of language by substituting sound for sense.
It is settled under Title VII that an employer may not
discharge an employee based on the categorical fact of her
pregnancy. See Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669, 684 (1983); Cumpiano, 902 F.2d at 153. By the same
token, since a short-term inability to work is bound up with the
very nature of pregnancy and childbirth, that disability is a
pregnancy-related condition within the meaning of 42 U.S.C.
2000e(k), and Title VII thus prohibits an employer from
dismissing an employee in retaliation for taking an authorized
maternity leave. Nevertheless, under the PDA, pregnancy does not
confer total immunity.8 An employer may discharge an employee
7We note in passing that the appellant's reasoning is
hopelessly circular. Morse demonstrated a firm commitment to
downsizing and actively sought ways to streamline its operations.
Consequently, there is no basis for surmising that Morse would
have failed to realize that the materials manager's position was
superfluous whether or not Smith took a maternity leave.
8We stress that this case is brought pursuant to, and is
governed by, Title VII. If the recently enacted Family and
Medical Leave Act of 1993, P.L. 103-3, 107 Stat. 6 (1993)
(codified at 29 U.S.C. 2601-2654) were applicable, a different
20
while she is pregnant if it does so for legitimate reasons
unrelated to her pregnancy. See, e.g., Troupe v. May Dept.
Stores Co., 20 F.3d 734, 738 (7th Cir. 1994); Pearlstein, 886 F.
Supp. at 268-69; see also Lipsett, 864 F.2d at 899 (holding that
an employer may dismiss an employee who is in a protected class
for a nondiscriminatory reason); Johnson v. Allyn & Bacon, Inc.,
731 F.2d 64, 70 (1st Cir. 1984) (similar). It follows, then,
that an employer may discharge an employee while she is on a
pregnancy-induced leave so long as it does so for legitimate
reasons unrelated to her gravidity.
Harmonizing these principles leads to the following
conclusions. Title VII mandates that an employer must put an
employee's pregnancy (including her departure on maternity leave)
to one side in making its employment decisions but the statute
does not command that an employer bury its head in the sand and
struthiously refrain from implementing business judgments simply
because they affect a parturient employee. See Troupe, 20 F.3d
at 738 (holding that the PDA "requires the employer to ignore an
employee's pregnancy, but . . . not her absence from work");
Crnokrak v. Evangelical Health Systems Corp., 819 F. Supp. 737,
743 (N.D. Ill. 1993) (stating that "the PDA does not force
employers to pretend that absent employees are present whenever
their absences are caused by pregnancy"). At bottom, Title VII
requires a causal nexus between the employer's state of mind and
the protected trait (here, pregnancy). The mere coincidence
set of rules would obtain.
21
between that trait and the employment decision may give rise to
an inference of discriminatory animus, see St. Mary's, 113 S. Ct.
at 2747, but it is not enough to establish a per se violation of
the statute (at least when, as now, the justification advanced by
the employer in support of the employment decision is on its face
legitimate and nondiscriminatory).9
To sum up, an employee (pregnant or not) runs a risk of
suffering the ordinary slings and arrows that suffuse the
workplace every day she goes to work and every day she stays
away. Title VII is neither a shield against this broad spectrum
of employer actions nor a statutory guaranty of full employment,
come what may. Applying the PDA as the appellant asks would
eliminate an employer's business necessity defense long
recognized under Title VII and cripple industry's ability to
manage workers in keeping with nondiscriminatory considerations.
That is not the law. See Bowen v. Valley Camp of Utah, Inc., 639
F. Supp. 1199, 1204 (D. Utah 1986) (explaining that Title VII, as
amended by the PDA, does not "preclude an employer from
articulating legitimate nondiscriminatory reasons for terminating
a woman while she was on maternity leave"); see generally Blackie
9Say, for example, a Jewish employee, in charge of
maintaining corporate records, stays home for a week to observe
Passover. In her absence, her employer rummages through the file
drawers that she maintains in search of a particular memorandum.
The employer finds a packet of heroin. The employer would not
have had the occasion to look through the file drawers but for
the fact that the employee was on religious leave; he would
simply have asked the employee for the memo. In such
circumstances, we think it is clear that the employer can fire
the employee for introducing drugs into the workplace without
violating Title VII's ban on religious discrimination.
22
v. Maine, F.3d , (1st Cir. 1996) [No. 95-1777, slip
op. at 13] (suggesting, in retaliation case, that "[a] contrary
rule would mummify the status quo").
Here, the district court found the requisite nexus
lacking between the employer's mindset and the employee's
gravidity. In the court's estimation, Morse discharged the
appellant for nondiscriminatory reasons. The record permits that
view of the facts. That the discharge took place while the
appellant was on maternity leave possessed considerable
evidentiary significance but that circumstance neither
transformed the character of the employer's action nor rendered
it per se unlawful under Title VII. The district court therefore
did not apply an erroneous legal standard.
III. THE BREACH OF CONTRACT CLAIM
III. THE BREACH OF CONTRACT CLAIM
We turn now to the appellant's partially tried breach
of contract claim. At the close of her case, the trial court
took this claim from the jury and directed a verdict in Morse's
favor. The appellant assigns error.
A. Standard of Review.
A. Standard of Review.
The court of appeals reviews the grant of a motion for
judgment as a matter of law de novo, applying the same legal
principles that inform the trial court's ruling. See Rolon-
Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir.
1993). Accordingly, we "examine the evidence and the inferences
reasonably extractable therefrom in the light most hospitable to
the nonmovant." Fashion House, Inc. v. K Mart Corp., 892 F.2d
23
1076, 1088 (1st Cir. 1989). If the proof, eyed from this
standpoint, permits a reasonable factfinder to reach only a
conclusion favorable to the movant, then the court must remove
the issue from the jury's consideration. See id.
While this approach does not allow the court to
"consider the credibility of witnesses, resolve conflicts in
testimony, or evaluate the weight of the evidence," Wagenmann v.
Adams, 829 F.2d 196, 200 (1st Cir. 1987), neither does it pave
the way for every case, no matter how sketchy, to reach the jury.
Thus, "a mere scintilla of evidence is not enough to forestall a
directed verdict, especially on a claim or issue as to which the
burden of proof belongs to the objecting party." Fashion House,
892 F.2d at 1088.
B. The Merits.
B. The Merits.
The parties who concur on very little else agree
that New Hampshire law governs the breach of contract claim.
Under that law, the at-will status of an employment relationship
is "one of prima facie construction." Panto v. Moore Business
Forms, Inc., 547 A.2d 260, 267 (N.H. 1988). That is to say,
unless an employment relationship explicitly provides for a
definite duration, it is presumed to be at-will. See Butler v.
Walker Power, Inc., 629 A.2d 91, 93 (N.H. 1993) (explaining that
the at-will presumption "is a gap filler for determining duration
when the parties' contract of employment is silent as to its
expiration"). This is critically important when an employee
challenges her ouster; an employer can give an at-will employee
24
even one who has been a stellar performer her walking papers at
any time, for any reason or no reason, unless a statute, a
collective bargaining agreement, or some aspect of public policy
proscribes firing the employee on a particular basis. See Panto,
547 A.2d at 267.
Of course, an employer and an employee may alter the
at-will status of the employment relationship. See Butler, 629
A.2d at 93; Panto, 547 A.2d at 267. Such a modification
sometimes may be accomplished if the employer makes a binding
offer that the employee can accept by remaining on the job. See
Panto, 547 A.2d at 265. Standard contract formation principles
govern the creation and construction of such contracts. See id.
at 264. Thus, the "offer must be so definite as to its material
terms or require such definite terms in the acceptance that the
promises and performances to be rendered by each party are
reasonably certain." Chasan v. Village Dist. of Eastman, 523
A.2d16, 21 (1986) (quoting Restatement of Contracts 32 (1932)).
Definiteness, like beauty, is frequently in the eye of
the beholder. At best, it involves matters of degree. In the
last analysis, the standard is reasonable certainty, not
mathematical precision. See Sawin v. Carr, 323 A.2d 924, 926
(N.H. 1974). The provisions of a contract need only be
"sufficiently certain to allow claims of breach to be resolved
readily, and to enable a reasonably certain computation of
damages." Panto, 547 A.2d at 264 (internal citations omitted);
accord Phillips v. Verax Corp., 637 A.2d 906, 910 (N.H. 1994);
25
Sawin, 323 A.2d at 926.
In this instance, the appellant takes bits and pieces
of various conversations that she had with Guimond and Bond,
pastes them together, and argues that a rational jury, mulling
the ensuing patchwork, could conclude that Morse offered to
reinstate and promote her following her maternity leave. By
continuing her employment in the wake of such promises, her
thesis runs, she accepted the offer. The district court did not
buy the patchwork, remarking in its ore tenus ruling that "the
promises described by the evidence are of insufficient
definiteness to be enforceable, do not modify the at-will
employment relationship, [and are such] that any calculation of
damages or any identification of breach would be impracticable if
not impossible." We agree with the lower court that the terms of
the alleged contract are too indefinite to raise a jury question.
We start by attempting to decipher the true nature of
the appellant's claim. Her lawyers tell us that the disjointed
statements made to her (e.g., "don't worry, we will manage while
you are on maternity leave, your job is secure," "you will assume
more responsibilities on your return," you are "wanted back")
created a contract to reinstate her following the completion of
her maternity leave. Yet, the appellant concedes that Bond's and
Guimond's statements did not alter the durational component of
the at-will employment relationship. A contract to reinstate an
at-will employee to an at-will position (from which she could
immediately be removed without cause) is no contract at all. See
26
Light v. Centel Cellular Co., 883 S.W.2d 642, 645 n.5 (Tex. 1994)
(holding that, as long as the at-will character of the employment
relationship remains unchanged, any "promise made by either
employer or employee that depends on an additional period of
employment is illusory because it is conditioned upon something
that is exclusively within the control of the promisor"); E.
Allan Farnsworth, Contracts 2.13, 2.14 (2d ed. 1990)
(explaining that promises to maintain an at-will relationship are
illusory); cf. Butler, 629 A.2d at 94 (terming an analytically
equivalent argument "a thin reed").
Nor is this the only shortcoming in the supposed
contract for reinstatement. The evidence also fails to establish
either the nature of the position Smith was to assume or her
proposed rate of pay. These gaps seemingly foreclose a
reasonably certain computation of damages.
Concluding, as we do, that the alleged contract for
reinstatement is too indefinite to be actionable does not end
this phase of our inquiry. In stark contrast to the
reinstatement theory proffered by her counsel, the appellant's
own testimony indicates that she understood the statements made
to her as promises of employment "indefinitely," and as
constituting an abiding "commitment to a permanent position with
F.W. Morse that would never end." If, by this, she means to
suggest a contract for lifetime employment, her claim also
founders.
Although tangentially related New Hampshire precedents
27
exist, the state supreme court has not explicitly addressed the
contours of contracts for lifetime employment. We are
nonetheless confident that the court would adopt the prevailing
view of such matters. See generally Kathios v. General Motors
Corp., 862 F.2d 944, 949 (1st Cir. 1988) (explaining that a
federal court, called upon to determine state law in the absence
of direct in-state precedent, may look, inter alia, to cases in
other jurisdictions); Moores v. Greenberg, 834 F.2d 1105, 1107
(1st Cir. 1987) (similar). That view regards such contracts as
out of the ordinary, and insists that an offer for lifetime
employment must be expressed in clear and unequivocal terms to be
enforceable. See, e.g., Williamson v. Sharvest Mgmt. Co., 415
S.E.2d 271, 274 (W. Va. 1992); Rowe v. Montgomery Ward & Co., 473
N.W.2d 268, 273 (Mich. 1991); Vance v. Huff, 568 So.2d 745, 749
(Ala. 1990); Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 381-
82 (N.J. 1988); Degen v. Investors Diversified Servs., Inc., 110
N.W.2d 863, 866 (Minn. 1961). Measured by this yardstick, the
representations made by Morse do not stand sufficiently tall to
confer lifetime employment. See, e.g., Williamson, 415 S.E.2d at
275-76 (finding employer's statement that it would "take care of"
employee insufficiently definite to alter at-will employment);
Skagerberg v. Blandin Paper Co., 266 N.W. 872, 874 (Minn. 1936)
(finding that the terms "permanent employment," "life
employment," and "as long as the employee chooses" established
only an at-will contract); Aberman v. Malden Mills Indus., Inc.,
414 N.W.2d 769, 771-72 (Minn. Ct. App. 1987) (concluding that the
28
statement "we are offering you security" only indicated an at-
will employment relationship).
IV. THE WRONGFUL DISCHARGE CLAIM
IV. THE WRONGFUL DISCHARGE CLAIM
The district court terminated the appellant's wrongful
discharge claim in advance of trial under the aegis of Fed. R.
Civ. P. 56. The appellant presses her objection.
A. The Summary Judgment Standard.
A. The Summary Judgment Standard.
The Civil Rules empower a court to grant summary
judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). We have explored
the nooks and crannies of this rule in a compendium of cases,
see, e.g. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-
15 (1st Cir. 1995); National Amusements, Inc. v. Town of Dedham,
43 F.3d 731, 735 (1st Cir.), cert. denied, 115 S. Ct. 2247
(1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Wynne
v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793-94 (1st Cir.
1992), cert. denied, 113 S. Ct. 1845 (1993); United States v. One
Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.),
960 F.2d 200, 204 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d
112, 115-16 (1st Cir. 1990); Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 7-8 (1st Cir. 1990); Garside v. Osco
Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. 1990), and it would
serve no useful purpose to rehearse that jurisprudence here.
29
For the nonce, we think it is sufficient to repeat that
"summary judgment's role is to pierce the boilerplate of the
pleadings and assay the parties' proof in order to determine
whether trial is actually required." Wynne, 976 F.2d at 794.
Thus, a Rule 56 motion may end the case unless the party opposing
it can identify a genuine issue as to a material fact. In this
regard, "genuine" means that the evidence on the point is such
that a reasonable jury, drawing favorable inferences, could
resolve the fact in the manner urged by the nonmoving party. See
One Parcel, 960 F.2d at 204. By like token, "material" means
that a contested fact has the potential to alter the outcome of
the suit under the governing law if the dispute over it is
resolved favorably to the nonmovant. See id.
When the summary judgment record is compiled the trial
court must scrutinize it "in the light most hospitable to the
party opposing summary judgment, indulging all reasonable
inferences in that party's favor," Griggs-Ryan, 904 F.2d at 115,
but disregarding "conclusory allegations, improbable inferences,
and unsupported speculation," Medina-Munoz, 896 F.2d at 8. If no
genuine issue of material fact is discernible, then brevis
disposition ordinarily follows.
Because the summary judgment standard requires legal
reasoning as opposed to differential factfinding, appellate
review of summary judgment orders is plenary. See Pagano, 983
F.2d at 347; Garside, 895 F.2d at 48.
B. The Merits.
B. The Merits.
30
New Hampshire law controls Smith's pendent wrongful
discharge claim. Under that law, even an at-will employee cannot
be cashiered for a reason that offends public policy because such
an employment decision "is not in the best interest of the
economic system or the pubic good and constitutes a breach of the
employment contract," Monge v. Beebe Rubber Co., 316 A.2d 549,
551 (N.H. 1974). The appellant urges that her severance offended
the state's policy against gender-based discrimination. In the
court below, Judge Stahl ruled that when a statutory remedy is
available, New Hampshire courts would not entertain a complaint
that an at-will employee had been wrongfully discharged in
violation of public policy. Therefore, the appellant's common
law claim for wrongful discharge failed because pregnancy
discrimination is redressable under Title VII. See Smith I, slip
op. at 9-10.
In reaching this conclusion, the district court drew
heavily upon the teachings of Howard v. Dorr Woolen Co., 414 A.2d
1273 (N.H. 1980). The appellant strives to convince us that a
later New Hampshire case, Cloutier v. Great Atlantic & Pacific
Tea Co., 436 A.2d 1140 (N.H. 1981), defenestrates the district
court's reading of Howard. We are not persuaded.
In Howard, the plaintiff alleged that he had been
discharged because of age. The New Hampshire Supreme Court
construed its seminal decision in Monge, 316 A.2d 549, "to apply
only to a situation where an employee is discharged because he
performed an act that public policy would encourage, or refused
31
to do that which public policy would condemn." Howard, 414 A.2d
at 1274. A discharge due to age fell outside this "narrow
category" inasmuch as the "proper remedy for an action for
unlawful age discrimination is provided for by statute." Id.
(listing state and federal statutory remedies). In Cloutier, the
court synthesized these cases, holding that to come within the
judicially created public policy exception a plaintiff "must show
that the defendant was motivated by bad faith, malice, or
retaliation in terminating [her] employment," 436 A.2d at 1143,
and must also "demonstrate that [s]he was discharged because
[s]he performed an act that public policy would encourage, or
refused to do something that public policy would condemn," id. at
1144. Cloutier did not answer, however, the question of whether
such a cause of action lies where, as here, the public policy at
stake is codified in a statute that itself provides a private
right of action to remedy transgressions.10
A recently decided case makes the import of the state
supreme court's earlier decisions pellucid and speaks directly to
10In Cloutier, the defendant argued that there must be a
statutory expression of a public policy, and that a generalized
assertion of a public policy (loosely based on a federal statute)
is insufficient as a matter of law to meet the public policy
prong of a wrongful discharge claim. See Cloutier, 436 A.2d at
1144-45. The court disagreed, observing that it had "not
restrict[ed the] holding in Howard to situations involving a
public policy enunciated in a statute. Public policy exceptions
giving rise to wrongful discharge actions may also be based on
non-statutory policies." Id. at 1144. This language means no
more than that a plaintiff can utilize a statutory provision to
prove the existence of a public policy; it does not address the
more sophisticated issue of whether a plaintiff may rely on a
statute that provides a remedy for its violation.
32
the question that confronts us here. In Wenners v. Great State
Beverages, Inc., 663 A.2d 623 (N.H. 1995), the plaintiff relied
on a section of the Bankruptcy Code to establish a public policy
against the termination of his employment. See id. at 625. The
court held that "[w]hile a plaintiff may not pursue a common law
remedy where the legislature intended to replace it with a
statutory cause of action," a wrongful discharge action could
proceed if the relevant statutory provision did not provide a
private cause of action for its violation. Id. (internal
citations omitted). We deem this holding to be dispositive of
Smith's contention.11
Title VII not only codifies the public policy against
gender-based discrimination (including, but not limited to,
pregnancy discrimination) but also creates a private right of
action to remedy violations of that policy and limns a mature
procedure for pursuing such an action. Under Wenners, the
existence of such a remedy precludes the appellant, in the
circumstances of this case, from asserting a common law claim for
wrongful discharge. It follows that the district court acted
impeccably in granting summary judgment on this claim.12
11To the extent that either Kopf v. Chloride Power
Electronics, Inc., 882 F. Supp. 1183, 1189-90 (D.N.H. 1995), or
Godfrey v. Perkin-Elmer Corp., 794 F. Supp. 1179, 1187 (D.N.H.
1992), hold otherwise, Wenners consigns them to the scrap heap.
12We acknowledge some apparent tension between this ruling
and our earlier opinion in Chamberlin v. 101 Realty, Inc., 915
F.2d 777, 786-87 (1st Cir. 1990). We set Chamberlin to one side
for a pair of reasons. First, the parties there did not raise
the issue of statutory preclusion, and the panel did not address
that issue. Second, Wenners makes a dispositive difference.
33
V. CONCLUSION
V. CONCLUSION
We need go no further. On the factbound Title VII
claim, this case presents a close question. In the end, however,
we must uphold the district court's judgment because the standard
of review is generous and there is enough evidence in the record
to support the trier's findings. On the two common law claims,
our task is appreciably easier; both claims raise questions of
law, not of fact, and the district court albeit in the person
of two different district judges correctly resolved them.
Affirmed.
Affirmed.
Concurring opinion follows
Concurring opinion follows
When the highest court of a state disposes of an issue of state
law contrary to the resolution of the issue theretofore suggested
by a federal court, the latter ruling must give way. See
Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.)
(permitting relaxation of stare decisis principles when
"controlling authority, subsequently announced," undermines an
earlier decision), cert. denied, 116 S. Ct. 51 (1995).
34
BOWNES, Senior Circuit Judge, concurring. Although
BOWNES, Senior Circuit Judge, concurring.
I am compelled by the deference due a district court's
findings of fact to concur in the final result, I write
separately because I am troubled by the analysis used in
deciding the Title VII claim. The majority applauds the
district court's failure to fully analyze Smith's claims as
"prudential." I, however, am convinced that Smith produced
direct evidence of intentional discrimination and that the
district court was obligated to fully analyze plaintiff's
case under the framework of Price Waterhouse v. Hopkins, 490
U.S. 228 (1989). Additionally, I think that the majority
mischaracterizes the law relevant to the causation
requirement under Title VII and Morse's position-elimination
defense. Its opinion could erroneously be viewed as an
invitation to use that defense as a cover for discrimination
against women who take or plan to take maternity leave.
I. The District Court's Analytical Process
I. The District Court's Analytical Process
The basic facts are undisputed. My first concern
arises from the district court's abbreviated analysis of
plaintiff's claim. The Supreme Court has established two
analytical frameworks that courts reviewing Title VII claims
must follow. Where the evidence produced at trial is
-35-
35
"direct," the Price Waterhouse framework applies.13 See
Fields v. Clark Univ., 966 F.2d 49, 51-52 (1st. Cir. 1992),
cert. denied, 113 S.Ct. 976 (1993); Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Jackson v.
Harvard Univ., 900 F.2d 464, 467 (1st Cir.), cert. denied,
498 U.S. 848 (1990).
If the evidence of discrimination is indirect or
circumstantial, the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), governs. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981);
St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742 (1993). These
basic rules have been followed, as they must, by this
Circuit. See, e.g., Cumpiano, 902 F.2d at 152; Jackson, 900
F.2d at 467; Chamberlin v. 101 Realty, 915 F.2d 777, 782
n.7. (1st Cir. 1990).
Yet, the district court found that gender
discrimination played no part in the decision to terminate
the plaintiff's employment without determining whether there
was direct evidence under Price Waterhouse or even mentioning
13. The plurality opinion in Price Waterhouse does not
itself require direct evidence of discrimination. The
reference to direct evidence appears in Justice O'Connor's
concurrence in that case. See, e.g., 490 U.S. at 270-74.
This court first adopted Justice O'Connor's conclusion that
direct evidence is required in mixed-motives cases in Jackson
v. Harvard Univ., 900 F.2d 464 (1st Cir. 1990), cert. denied,
498 U.S. 848 (1990).
-36-
36
McDonnell Douglas. See Jackson, 900 F.2d at 467 (holding
that a finding of direct evidence renders the McDonnell
Douglas framework inapplicable). The majority compounds this
analytical omission by praising the district court for its
"directness" and for having "largely bypassed any
differential direct evidence/circumstantial evidence
tamisage." A district court's decision to circumvent the
analytical processes Supreme Court and circuit precedent
require should be criticized, not praised.
This is particularly true where Title VII cases are
concerned. The discrimination that plaintiffs like Kathy
Smith face in the workplace is frequently as subtle as it is
invidious. It is in recognition of this hard truth that the
Supreme Court established an analytical process which
district courts, in my opinion, are required to follow. See,
e.g., McDonnell Douglas, 411 U.S. at 801 ("[I]n the
implementation of [employment] decisions, it is abundantly
clear that Title VII tolerates no . . . discrimination,
subtle or otherwise."); see also Price Waterhouse, 490 U.S.
at 271. The Court's jurisprudence stands for the principle
that the unlawfulness of the employment actions typically
challenged in Title VII cases is best exposed through a
process of inquiry. See, e.g., Burdine, 450 U.S. at 255 n.8
("In a Title VII case, the allocation of burdens and the . .
. prima facie case [requirement] [are] intended progressively
-37-
37
to sharpen the inquiry into the elusive factual question of
intentional discrimination."). Because I stand by that
principle, I would ordinarily suggest a remand in a case such
as this.
I have come to the conclusion, however, that remand
would not be meaningful in this case. This does not mean
that I agree with the district court's finding that the
evidence produced by Smith was not compelling. I concur in
the result because I am bound by Supreme Court and circuit
precedent. And in this area, that precedent, unfairly in my
opinion, imposes too heavy a burden on plaintiffs trying to
prove the ultimate issue in discrimination cases: that the
employer intentionally discriminated against her on the basis
of a Title VII-protected trait. I believe that Smith has
produced enough evidence to meet her initial burden under
Price Waterhouse or McDonnell Douglas, but agree that it
would have been plausible for a factfinder to conclude that
Morse proved its position-elimination defense by a
preponderance of the evidence or, alternatively, that the
facts established were insufficient to show pretext.
Although it did so without adhering to the process Title VII
requires, the district court decided the ultimate issue in
the case and, although I disagree with it, I cannot say that
decision was clearly erroneous.
-38-
38
II. Direct Evidence Under Price Waterhouse
II. Direct Evidence Under Price Waterhouse
In light of my concurrence in the majority's
ultimate holding on Smith's Title VII claim, issues
pertaining to the nature of the evidence Smith produced at
trial are, admittedly, moot. Nevertheless, I want to explain
my belief that Smith produced direct evidence and that Price
Waterhouse controls this case. This is important for two
reasons. First, the availability of direct evidence
determines whether a case should be analyzed under Price
Waterhouse or McDonnell Douglas. Direct evidence renders the
McDonnell Douglas framework inapposite and imposes a heavier
burden of proof on the employer. Fuller v. Phipps, 67 F.3d
1137, 1141 (4th Cir. 1995).
Second, the determination of whether the evidence
produced at trial is direct, though cast in procedural terms,
affects the substantive outcome in Title VII cases. See
Deborah C. Malamud, The Last Minuet: Disparate Treatment
After Hicks, 93 Mich. L. Rev. 2229, 2229 (1995)("Title VII
jurisprudence cloaks substance in the 'curious garb' of
procedure."). This observation is of less import in Smith's
case because, at the time the events giving rise to Smith's
suit occurred, the law provided that an employer shown to
have unlawfully discriminated could avoid Title VII liability
by demonstrating by a preponderance of evidence that the
adverse employment decision would have been the same even if
-39-
39
discrimination had played no role. Lam v. Univ. of Hawai'i,
40 F.3d 1551, 1564-65 (9th Cir. 1994). In other words,
direct evidence of discrimination, without more, was not
enough to impose liability on Morse. Id.
Under today's applicable law, however, a plaintiff
producing direct evidence of discrimination under Price
Waterhouse may have a Title VII remedy. Id. at 1565 n. 24.
The Civil Rights Act of 1991 "modified the Price Waterhouse
scheme" and made "mixed-motives treatment more favorable to
plaintiffs." Fuller, 67 F.3d at 1142; see Civil Rights Act
of 1991, Pub. L. 102-166, 107, 105 Stat. 1071, 1073
(1991)(codified at 42 U.S.C. 2000e-2). Section 107 of the
Act provides that Title VII is violated whenever an employer
takes sex or pregnancy into account, regardless of whether
other considerations independently explain the adverse
employment decision. Id.; see 42 U.S.C. 2000e-2(m)("[A]n
unlawful employment practice is established when the
complaining party demonstrates that race, color, religion,
sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated
the practice."). Prevailing mixed-motives plaintiffs, at the
very least, are now entitled to declaratory and injunctive
relief and attorney's fees. See Kerr-Selgas v. Am. Airlines,
69 F.3d 1205, 1210 (1st Cir. 1995)(citing 42 U.S.C. 2000e-
5(g)(2)(B))(where an employer in a mixed-motives case proves
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that it would have made the same decision, the prevailing
plaintiff is entitled to attorney's fees, and declaratory and
injunctive relief, but not damages or reinstatement). Thus,
what constitutes direct evidence is a critical issue for
Title VII plaintiffs.
The majority makes repeated references to "smoking
gun" evidence. Using this term only obscures the fact that
this Circuit has yet to clearly define what constitutes
direct evidence of gender discrimination. On prior occasions
we have held that "[d]irect evidence is evidence which, in
and of itself, shows a discriminatory animus." See, e.g.,
Jackson, 900 F.2d at 467. But, this reasoning is circular
and does not further understanding of the term. Justice
O'Connor, in her concurring opinion in Price Waterhouse,
defined the term in the negative, explaining that direct
evidence "exclude[s] 'stray remarks in the workplace,'
'statements by nondecisionmakers', or 'statements by
decisionmakers unrelated to the decisional process itself.'"
Price Waterhouse, 490 U.S. at 277 (O'Connor concurring).
I contend that the evidence Smith produced at trial
was direct and, therefore, warranted full application of the
Price Waterhouse framework. The evidence shows that Smith
was pregnant, and requested and received unpaid maternity
leave. After being on leave several weeks, Smith notified
Morse's general manager, Guimond, that she wanted to return
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to work on May 15, 1989, a week earlier than planned.
Guimond approved the earlier start time and assured Smith
that her job was secure. She also asked Smith whether she
intended to have additional children; Smith indicated that
she did.
On May 2, 1989, the day after this conversation
occurred, Guimond also questioned Vendasi, Smith's sister,
about Smith's future childbearing plans. Smith confronted
Guimond about this behavior and the rumor that she would not
be returning to work because she had decided to stay home
with her child. Guimond denied any knowledge about the rumor
and reiterated that Smith's job was secure; she repeated this
guarantee two days later. Despite these assurances, Guimond
terminated Smith on May 11, 1989, one week after their last
conversation and four days before Smith was slated to return
to work. Guimond requested permission to tell people that
Smith failed to return to work because she decided to stay
home to care for her child, but Smith refused to give it.
There is precedent holding that statements like
those Guimond made to Smith and Vendasi constitute direct
evidence. For example, in the Eighth Circuit, statements
made by an employer can be direct evidence of discrimination,
if made during a key decisional process. In Beshears v.
Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), the court held
that an employer's oral statement, "older employees have
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problems adapting to changed and new policies," was direct
evidence of age discrimination. 930 F.2d at 1354. Two years
later, the court expanded its Beshears holding to include
written statements. Radabaugh v. Zip Feed Mills, Inc., 997
F.2d 444, 449-50 (8th Cir. 1993), held that written
statements included in corporate planning documents were also
direct evidence of discrimination.
Other circuits have included statements made
outside of the decisional process in the definition of direct
evidence. In 1994, the Seventh Circuit held that post-
discharge statements made by a supervisor were direct
evidence of age bias, even though they were not reflective of
an express intent to discriminate. See Robinson v. PPG
Indus., Inc., 23 F.3d 1159, 1165 (7th Cir. 1994). Similarly,
the Eleventh Circuit has held that statements made by an
employer to third parties are direct evidence of
discriminatory animus. In EEOC v. Beverage Canners, Inc.,
897 F.2d 1067, 1070 (11th Cir. 1990), the court found that
racially biased statements made by a supervisor to workers in
his plant were direct evidence of racial animus and a hostile
environment under Title VII.
Guimond's statements to both Smith and Vendasi fall
well within the definition of direct evidence established by
cases such as Beshears and Beverage Canners. Guimond was
solely responsible for Morse's personnel decisions. Her
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questions about Smith's childbearing plans were neither stray
nor random and evinced a concern about future pregnancy.
Additionally, Guimond began asking questions about Smith's
childbearing plans during what she admits was a key
decisional period. Finally, the facts show that the timing
of the decision to terminate Smith was suspicious. Cf.
Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994);
Josey v. Hollingsworth Corp., 996 F.2d 632, 639 (3d Cir.
1993). Within two weeks of learning about Smith's plans to
have more children, Guimond decided to terminate Smith, even
though she had repeatedly assured Smith that her job was
secure.
This evidence of discrimination is direct and clear
even if it does not reach the status of a smoking gun. That
some inferences must be drawn from what was said and done to
reach this conclusion does not make Smith's evidence
indirect. As the Seventh Circuit recognized in its 1991
decision, Visser v. Packer Eng'g Assoc., Inc., 924 F.2d 655,
659 (7th Cir. 1991), "all knowledge is inferential." Because
judges are not mind-readers and cannot reach into the mind of
a Title VII defendant, a certain amount of inference-drawing
is necessary in any case, whether the evidence is direct or
indirect. The ultimate issue in disparate treatment cases -
- whether the employer intended to discriminate -- cannot be
established by purely direct evidence. See Charles A.
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Sullivan, Accounting For Price Waterhouse: Proving Disparate
Treatment Under Title VII, 56 Brook. L. Rev. 1107, 1138
(1991)("'[D]irect evidence' of intent cannot exist, at least
in the sense of evidence which, if believed, would establish
the ultimate issue of intent to discriminate."); Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1183-84 (2d Cir.),
cert. denied, 113 S.Ct. 82 (1992).
Rather than adhering to the colorful but
meaningless requirement of a smoking gun, I think we should
adopt a definition of direct evidence in Title VII cases
which satisfies the minimum negative requirements Justice
O'Connor set out in Price Waterhouse: "exclude[s] 'stray
remarks in the workplace,' 'statements by nondecisionmakers',
or 'statements by decisionmakers unrelated to the decisional
process itself.'" Price Waterhouse, 490 U.S. at 277
(O'Connor concurring). In accord with the Civil Rights Act
of 1991, this definition preserves the mixed-motives case as
a viable option in Title VII suits. Cf. Michael A.
Zubrensky, Despite The Smoke, There Is No Gun: Direct
Evidence Requirements In Mixed-Motives Employment Law After
Price Waterhouse v. Hopkins, 46 Stan. L. Rev. 959, 969
(1994). It lowers the high hurdle of "smoking gun" evidence
to reasonable limits so that plaintiffs in employment
discrimination cases can receive all the protections Title
VII was intended to give.
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Even if my definition of Price Waterhouse direct
evidence is rejected, however, it is irrefutable that Smith
made out a prima facie case of discrimination under McDonnell
Douglas: that after being directly so asked, she expressed an
intention to become pregnant in the future; that her
performance at work was more than satisfactory; that she was
terminated after repeated assurances that her job was
"secure;" and that her duties continued to be performed by
comparably qualified individuals. See Cumpiano, 902 F.2d at
153; Lipsett v. Univ. of P.R., 864 F.2d 881, 899 (1st Cir.
1988).
Smith's reiteration of these facts on appeal
complied with Supreme Court and circuit precedent. Smith
proved that she was fired even though she was an excellent
manager and that her duties continued to be performed by
other employees. In my view, this is all McDonnell Douglas'
prima facie case burden requires. See, e.g., Byrd v.
Ronayne, 61 F.3d 1026, 1031 (1st Cir. 1995)("[T]he required
prima facie showing is not especially burdensome.")(citing
Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.
1995)). The district court should have shifted to the
McDonnell Douglas framework before finding Smith's evidence
deficient.
III. Causation Under Title VII
III. Causation Under Title VII
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In addressing the question of causation in
disparate treatment cases, the majority stresses that a
"coincidence" between pregnancy leave and an employment
decision does not prove intentional discrimination. It may
not in all cases, but it arguably did in this case. The
majority's discussion of causation completely disregards this
possibility. Its blanket contention that pregnancy does not
give plaintiffs "total immunity" from adverse employment
actions ignores the extent to which maternity leave gives
employers an opportunity to discharge women who take
maternity leave or who express an intention to have one or
more children.
The evidence arguably shows that the position Smith
held would have been eliminated even if Morse had not
considered her pregnancy or intention to become pregnant in
the future. It does not necessarily follow from this,
however, that Smith would have been fired had Morse not
considered her maternity leave or desire to have more
children. In their conversations before Smith took maternity
leave, Bond, Morse's president, and Guimond discussed
eliminating the materials manager position, but not Smith.
The record shows both that Bond initially intended to retain
Smith because of her excellent skills and that he admitted
that Smith would still be employed at Morse had she not taken
maternity leave.
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Had Smith refused to disclose or even lied about
her intention to have more children, she would probably still
have a job at Morse. The facts show that Guimond was very
concerned about the disruption Smith's absence would cause
and suggest that she would have taken steps to avoid such
disruption in the future. The majority completely ignores
the probability that Smith's expressed desire to have more
children was the motivating factor in her discharge and that
her temporary absence on maternity leave gave her employer an
opportunity to find a reason to discharge her. I contend
that the evidence Smith produced was sufficient to establish
intent and causation.
The two examples the majority gives to illustrate
the need for a causal connection between pregnancy and the
adverse employment action challenged in disparate treatment
cases are both inapposite and unfair. Footnote 9 of the
court's opinion analogizes Smith's dismissal during maternity
leave to an employee who is discharged while on religious
leave because heroin is discovered in her desk. It is true
that in both cases the employee's absence enabled the
employer to make the discovery resulting in discharge. But
here the analogy breaks down.
The possession of heroin is illegal; its presence
in the employee's desk was a fact that could not be refuted
(although an explanation might be made). The employer did
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not have to make any determination as to the quality of the
employee's work or her capabilities. She had to be fired.
In the case of maternity leave, however, an employer would
have to make a judgment as to whether eliminating the
position made good business sense. Considerations such as
the employee's prior performance and future childbearing
plans would be part of the employer's position-elimination
decision. At least in part, that decision would be "because
of" pregnancy, present and future. It could not be made in
the vacuum the majority's hypothetical presupposes.
Similarly, the cases the majority cites to support
its view obscure the causation issue and unfairly compare
Smith to employees who are placed on probation because of
poor attitudes or who are discharged because of unexcused
absences. Cases such as Troupe v. May Dep't Stores Co., 20
F.3d 734 (7th Cir. 1994), Crnokrak v. Evangelical Health
Systems Corp., 819 F. Supp. 737 (N.D. Ill. 1993), and Johnson
v. Allyn & Bacon, Inc., 731 F.2d 64 (1st Cir.), cert. denied,
469 U.S. 1018 (1984), involved discharge, not position
elimination. In Troupe, the employee's pre-maternity leave
dismissal was motivated by her tardiness and frequent
absences. Crnokrak involved a plaintiff who was terminated
after returning from maternity leave later than originally
expected, whereas Johnson dealt with an employee who lacked
supervisory skills and who was fired after being placed on
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probation because of a poor work attitude. The one position-
elimination case the majority cites, Pearlstein v. Staten
Island Univ. Hosp., 886 F. Supp. 260 (E.D.N.Y. 1995), is
similarly inapposite; it involved adoption, not pregnancy,
and an employee who gave short notice of her need for
maternity leave. And in that case, the evidence showed that
the plaintiff was accidentally overpaid, that her employer
was experiencing financial difficulties, and that she had
received no assurances about the security of her job.
These cases do not directly address the causation
issues presented here. In contrast to Pearlstein, the
evidence in this case shows that Smith received repeated
assurances about her job, that the raise she received before
taking maternity leave was intentional, and that Smith's
termination was not due to economic hardship. Additionally,
the evidence does not show that Smith was fired for a poor
attitude, that she had ever been on probation, or that she
lacked supervisory skills. The fact that Smith received
regular promotions and that few people at the Morse plant
exceeded her level of education or experience belies any
suggestion that Smith's performance and skills were below
par.
Finally, Smith received permission for her
maternity leave, shortened the duration of that leave, and
was fired before she could return to work, not before she
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left. Smith's maternity leave, thus, did not pose a problem
for Morse in the same way that the Troupe employee's
unexpected illness or the Crnokrak plaintiff's extended leave
did for their employers. The crux of Morse's defense, after
all, is that Smith was fired because her absence had no
effect whatsoever on Morse's operations.
My point is simple: just as pregnancy does not
fully shield plaintiffs from adverse employment actions,
business judgment or necessity does not totally immunize
employers from Title VII's sanctions. The majority's
discussion of causation understates this important point. I
believe that, more often than not, a correlation between
pregnancy and position elimination during maternity leave
will exist. It is naive to think that an employer would not
take an employee's pregnancy or intention to become pregnant
in the future into consideration during the process of
determining whether the employee's position should be
eliminated.14
IV. The Position-Elimination Defense
IV. The Position-Elimination Defense
14. I am, of course, aware that the Family and Medical Leave
Act of 1993, P.L. 103-3, 107 Stat. 6 (1993)(codified at 29
U.S.C. 2601-2654) addresses a number of the concerns I
raise. That Act, however, does not apply in pre-1993 cases
and does not, moreover, correct the problems I perceive in
the majority opinion's analysis and posture towards Smith's
discrimination claim.
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The majority upholds the district court's finding
that Morse made out a position-elimination defense on two
grounds: that Morse reduced its management-level staff and
that Smith's duties were shifted to employees who were
already on the Morse payroll. Though I concur in the holding
that Morse arguably proved the facts necessary to rebut
Smith's gender discrimination claim, I think the scope of the
position-elimination defense is considerably more narrow than
the majority's interpretation of the facts suggests. That a
company is able to manage in the absence of one of its key
employees will not always be proof of a nondiscriminatory
purpose, contrary to what the court's opinion implies. Were
that so, every woman who took maternity leave would do so at
risk of losing her job.
Moreover, the conclusion that Morse reduced its
management staff is not supported by the evidence. Morse did
not, as the court's exposition of the facts suggests, reduce
its management team from seven to three. The majority
reached this conclusion by eliminating Bond and Guimond from
its final count, even though they each donned one of the two
hats formerly worn by Darryl Robinson, Damar's founder and
chief officer. It also erroneously included Smith in Damar's
original management team, even though she did not have a
management title at that time. And it failed to include the
two assistant manager positions in its final count, even
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though the individuals holding those slots did have
management titles. If the individuals excluded from the
majority's calculations are added, the size of Morse's
management team was the same at the end as it was in the
beginning -- seven.15
The facts demonstrate that Morse mainly reorganized
its management team. It consolidated positions and
eliminated titles, but did not decrease the size of its
management. Because it would have been plausible for the
district court to interpret this reorganization as position
elimination, I concur in the court's holding. I do not
agree, however, that reorganizations of the sort Morse
carried out will be enough to rebut claims of intentional
discrimination in every case. For me, whether the district
court was clearly erroneous in its findings on this issue was
a very close call.
The court's holding that Smith was not replaced,
that her duties were merely transferred to other Morse
15. Post-acquisition of Damar, Morse's upper-level
management team included the following seven people: Bond
(president); Guimond (general manager); Paradis (machining);
Shevenell (sheet metal); Bickford (engineering); Seeger
(sales); and Smith (materials). I do not include Lane and
Hickman in this number because they were fired almost
immediately after Damar's acquisition, partially due to their
poor performance. After Smith was fired, Morse's upper-level
management team still included seven individuals: Bond
(president); Guimond (general manager); Paradis (operations);
Shevenell (manufacturing); Seeger (sales); Lapanne (assistant
manager); and Hoffman (assistant manager).
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employees, is based on our holding in LeBlanc v. Great Am.
Ins. Co., 6 F.3d 836 (1st Cir. 1993), cert. denied, 114 S.Ct.
1398 (1994). LeBlanc holds that a position-elimination
defense is not defeated by the claim that an employee was
only "replaced" because "another employee [was] assigned to
perform the plaintiff's duties in addition to other duties,
or [because] the work [was] redistributed among other
existing employees already performing related work." 6 F.3d
at 846; see also Barnes v. GenCorp., Inc., 896 F.2d 1457,
1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990).
To the extent that Morse's defense comports with
Leblanc at all, it does so on the basis of the first prong,
not the second. In analogizing Morse's first reorganization
to the reorganization which occurred after Smith's firing,
the majority opinion gives the impression that LeBlanc's
second prong, the "related work" requirement, can be
satisfied by demonstrating that a plaintiff's duties were
simply transferred to someone working in the same company. I
disagree. I contend that LeBlanc's related-work requirement
cannot be met unless the employer proves that it shifted the
plaintiff's duties to employees who were already performing
some of the plaintiff's duties or, at least, duties that were
very similar. This did not occur in this case.
In the first reorganization, Smith was promoted to
materials manager and asked to officially assume some of the
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duties she had already been performing because of the
inadequacies of other managers. Smith at that time assumed
duties which, in my opinion, constituted related work under
LeBlanc. In contrast, the second reorganization did not
shift Smith's responsibilities to managers who had already
been performing her job. After Smith was fired, those
managers took on what were essentially new duties; the
majority's own contention that Paradis and Shevenell were far
more experienced than Smith and responsible for the technical
aspects of Morse's business bears this out. That they
performed those duties for some period before Smith was fired
was only because Smith was on maternity leave. The
nonpregnancy-based explanation for their additional
responsibilities did not kick in until after Smith's firing.
If Title VII's protections against pregnancy-based
discrimination are to have any force, the relevant period of
inquiry for determining whether the duties formerly performed
by a plaintiff were assumed by someone already performing
related work under LeBlanc should not be during a maternity
leave. The relevant period of inquiry must be before that
leave began. Using the time period when the woman is on
maternity leave creates a perverse incentive to discriminate
against pregnant women by firing them when they are not at
their jobs and when it will almost always be true that
someone else is performing their duties. In this case, if
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Smith had not become pregnant and taken maternity leave, she
would still be a valued Morse employee.
V. Conclusion
V. Conclusion
William James once said that an idea's "validity is
the process of its valid-ation." Accordingly, I concur in
the outcome reached in this case, but not the process
employed, because I disagree with the view of pregnancy
discrimination cases taken by the majority. I think it only
plausible that gender was not the motivation for the adverse
employment action taken against Smith, not "true." And I
agree only that position elimination can be a defense in
Title VII cases, not that it will be a defense in every case.
For me, the process employed in reaching a result, which
includes the hypotheticals drawn and examples given, matters.
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