United States Court of Appeals
For the First Circuit
____________________
No. 01-2284
CHRISTINA WESTON-SMITH,
Plaintiff, Appellant,
v.
COOLEY DICKINSON HOSPITAL, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
____________________
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Gertner,* District Judge.
____________________
Maurice M. Cahillane with whom Egan, Flanagan and Cohen, P.C.
was on brief for appellant.
Guy P. Tully with whom Laurie J. Hurtt and Jackson Lewis
Schnitzler & Krupman were on brief for appellee.
____________________
* Of the District of Massachusetts, sitting by designation.
March 12, 2002
____________________
LYNCH, Circuit Judge. Shortly after Christina Weston-
Smith returned from her maternity leave in 1998 to her job as
Director of Peri-Operative Services at Cooley Dickinson
Hospital, she was laid off. Based on comments she overheard,
the timing of her dismissal, a comparison of her credentials
with those of her replacement, and both a hearsay statement
(that her supervisor said to her replacement that Weston-Smith's
leave caused her to lose her job) and her supervisor's silence
in the face of Weston-Smith's accusations, she believed that she
was terminated because of her maternity leave. She brought suit
under Title VII, 42 U.S.C. § 2000e-2 (1994), and the anti-
retaliation provisions of the Family and Medical Leave Act, 29
U.S.C. § 2615 (1994).
The Hospital denied any discrimination or retaliation.
It explained that Weston-Smith was laid off as part of a
hospital-wide reorganization of management, and that there were
legitimate reasons another employee had been retained instead of
Weston-Smith in the new position. It argued that neither the
alleged statement nor the silence was admissible, because both
were hearsay.
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On the Hospital's motion for summary judgment, the
district court agreed that all reasonable inferences from the
evidence supported the Hospital’s position, and entered judgment
for the Hospital. Specifically, the court ruled that the
statement was inadmissible double hearsay, Weston-Smith v.
Cooley Dickinson Hosp., Inc., 153 F. Supp. 2d 62, 69 (D. Mass.
2001); that it was doubtful the silence was admissible and that
it certainly did not amount to direct evidence of
discrimination, id. at 69-70; and further that Weston-Smith had
failed to meet her burden to show the Hospital’s explanation was
pretextual, id. at 73. We affirm; our analysis of the
questions presented on appeal largely mirrors that of the
district court’s well-reasoned opinion.
I.
We take the facts and reasonable inferences in the
light most favorable to Weston-Smith's position. Zapata-Matos
v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir. 2002). We
sketch only the basic facts; details may be found in the
district court opinion. We give a fuller description only of
the portions of the facts needed for our decision.
Cooley Dickinson Hospital hired Christina Weston-Smith
in April 1996 as its Director of Peri-Operative Services; in
that position, she managed the treatment of patients before and
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after surgery, as well as the administration of surgical
services themselves. She reported to Donna Bowles, the
Hospital's Vice President of Nursing. Weston-Smith did well at
her job and received good, sometimes excellent, performance
evaluations. In April 1998, Weston-Smith took maternity leave,
scheduled to last until August; she returned to her position
part time in May. She testified at deposition that while
working part time, she overheard two doctors complaining about
her inaccessibility during her maternity leave.
In August, after the formal end of Weston-Smith's
maternity leave, Craig Melin, the Hospital's President and CEO,
met with her. Melin informed Weston-Smith that the Hospital was
eliminating her position as part of a hospital-wide
reorganization. A new position, Surgical Program Director,
would perform many of the same tasks as well some additional
ones, and would report directly to him rather than to Bowles.
Weston-Smith also testified that she was told not to apply for
the new position. After terminating Weston-Smith, Melin offered
the new position to Cathryn Neumann, formerly the Hospital's
Clinical Coordinator and Weston-Smith's subordinate. Neumann
accepted.
Weston-Smith came to suspect, based on the conversation
that she had overheard between the doctors and on the timing of
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her layoff, that Melin's decision was motivated at least in part
by her absence during her maternity leave. According to her
deposition testimony, Neumann told her that Bowles had said that
Weston-Smith's maternity leave had indeed played a part in the
layoff decision. Some time later, Bowles invited Weston-Smith
to lunch. Regarding that lunch, Weston-Smith testified at
deposition:
Donna [Bowles] invited me out to lunch at the
Northampton Brewery and I asked her at that time,
during that luncheon which she invited me to, because
I had a lot of questions, what was going on, why was
I laid off. I asked her about the conversation she
had with Cathy Neumann, about the fact that Cathy had
told me that the reason I was laid off, I mean that,
you know, she had a conversation with Donna about the
conversation that Donna and Cathy had had and that
Cathy had related that information to me and I asked
her about why Donna had said that about the fact that
I had been laid off because of my maternity leave and
when I asked her that question, when I asked Donna
that question at that luncheon, she clearly looked
extremely uncomfortable and didn't answer. She sat
there and turned color, you know, turned bright red
and didn't answer the question, you know, he she [sic]
evaded the issue, tried to talk about something
different. I tried to bring her back to that
question, I wanted to have the answer, but she clearly
-- her body language told me that she was well aware
of what I was talking about, but she did not answer
the question in words.
Bowles denied at deposition that she ever said anything to
Neumann regarding the reasons Weston-Smith was laid off.
Neumann also denied that Bowles ever said anything of this kind,
or that Neumann ever had a conversation on this topic with
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Weston-Smith. Weston-Smith's own testimony is therefore the
primary evidence that she claims entitles her to a jury trial,
although she also makes other arguments that we address in the
course of this opinion.
II.
We review de novo the district court’s grant of summary
judgment. Zapata-Matos, 277 F.3d at 42.
Some years ago the Supreme Court set up two different
models for analysis of employment discrimination cases,
depending on whether an employee presented direct evidence1 of
discrimination or relied solely on circumstantial evidence. See
Price Waterhouse v. Hopkins, 490 U.S. 228, 270-78 (1989)
(O'Connor, J., concurring) (describing the direct evidence
model); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973) (describing the circumstantial evidence model). Like the
parties, we apply the distinction drawn by these cases.2 As the
1 For a description of the differing requirements adopted
by the circuits for the application of Price Waterhouse, see
Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 582 (1st
Cir. 1999). For present purposes, we will simply refer to such
cases as those involving "direct evidence."
2 Weston-Smith has alleged claims under both Title VII
and the anti-retaliation provisions of the Family and Medical
Leave Act. The parties have treated the standards under the two
Acts as the same. So do we. To be clear, however, our discussion
of the 1991 amendments to Title VII in the text applies specifically to
that statute and not to the Family and Medical Leave Act.
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Supreme Court has recently reemphasized, however, the McDonnell
Douglas framework is a "flexible evidentiary standard" whose
requirements "vary depending on the context"; it is a method for
proving cases rather than the definition of a cause of action.
Swierkiewicz v. Sorema N.A., No. 00-1853, 2002 WL 261807, at *4
(U.S. Feb. 26, 2002) (holding that a Title VII plaintiff need
not plead the elements of a McDonnell Douglas prima facie case
to survive a motion to dismiss).
A. Direct Evidence
It is generally to an employee's benefit to show direct
evidence of discrimination rather than relying on the
inferential model set forth in McDonnell Douglas. If an
employee makes a sufficiently strong showing of discrimination
using direct evidence, but the employer responds with a showing
of legitimate reasons for the actions it took, then the court
may view the employer as having mixed motives -- some
legitimate, some not. Under the 1991 Act amending Title VII,
the employer may then assert an affirmative defense, bearing the
burdens of production and persuasion, that it "would have taken
the same action in the absence of the impermissible motivating
factor." Civil Rights Act of 1991, Pub. L. No. 102-166, § 107,
105 Stat. 1071, 1075-76 (1991), codified at 42 U.S.C. § 2000e-
5(g)(2)(B). On such a showing in a mixed-motive case, the
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employer may then avoid liability for monetary damages and
reinstatement. But so long as the employee has shown that the
impermissible factor was a motive, even if not the determinative
motive, the employer will still be subject to declaratory and
limited injunctive relief, as well as attorneys' fees. Id.
Although the 1991 Act is silent on exactly what showing is
needed to trigger a mixed-motive case, and so might be read to
leave open the possibility of a mixed-motive analysis following
a sufficiently strong circumstantial showing of discrimination,
many courts require an employee to produce direct evidence that
establishes discrimination was a motive before employing such an
analysis. See generally Fernandes v. Costa Bros. Masonry, Inc.,
199 F.3d 572, 580 (1st Cir. 1999) (citing Price Waterhouse, 490
U.S. at 277 (O'Connor, J., concurring)).
Employees benefit from presenting such direct evidence
for a number of reasons. First, the sheer strength of the
evidence may carry the day. Second, it increases the chance of
some form of relief, including attorneys' fees. Third, it
imposes on the employer the burdens of production and
persuasion,3 unlike the McDonnell Douglas model, which merely
3 This shift occurs, of course, only if the employee has
persuaded the fact finder that an impermissible motive has
played a part, and the employer is seeking to limit the relief
by showing it also acted from permissible motives that would
have led to the same action anyway.
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shifts to the employer the burden of producing admissible
evidence to support a non-discriminatory reason for its actions.
Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996).
Fourth, it is more difficult, although not impossible, for the
employer to get summary judgment in light of the strength of
direct evidence and the potential shifting of burdens.
Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 429 (1st
Cir. 2000); cf. Swierkiewicz, 2002 WL 261807, at *3 ("[A]
plaintiff [who] is able to produce direct evidence of
discrimination . . . may prevail without proving all the
elements of a [McDonnell Douglas] prima facie case."). To
obtain these benefits, the employee must "offer stronger
evidence . . . than that needed to establish a prima facie case
under" McDonnell Douglas. I B. Lindemann & P. Grossman,
Employment Discrimination Law 43 (3d ed. 1996).
Much has been written about what is direct evidence.
See id. at 40 nn.150, 151 (collecting cases). It is easy to
say that there is direct evidence when a decisionmaker says, for
example, "I fired you because you became pregnant and took
maternity leave." But that rarely happens in this world, where
most employers are well aware of the legal consequences of
discrimination. And so employees offer other types of
statements as "direct" evidence. See Price Waterhouse, 490 U.S.
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at 272 (O'Connor, J., concurring) (treating as direct evidence
a statement by the relevant decisionmaker that the plaintiff's
"'professional' problems would be solved if she would 'walk more
femininely, talk more femininely, wear make-up, have her hair
styled, and wear jewelry'").
This circuit has made clear that inherently ambiguous
statements do not qualify as direct evidence. In Fernandes, we
held that the statement "I don't need minorities and I don't
need residents on this job" was ambiguous because in context it
might have reflected "a benign response to a specific inquiry
reflecting [the speaker's] . . . perception that he no longer
had to make special efforts to comply with EEO requirements."
199 F.3d at 583.4 And in Shorette v. Rite Aid of Maine, Inc.,
155 F.3d 8 (1st Cir. 1998), we held a store manager's statement
that the plaintiff in that case had "a perfect case of age
discrimination" did not suffice as direct evidence because there
4 We have further explained this requirement in
subsequent cases. See Febres v. Challenger Caribbean Corp., 214
F.3d 57, 61 (1st Cir. 2000) ("Comments which, fairly read,
demonstrate that a decisionmaker made, or intended to make,
employment decisions based on forbidden criteria constitute
direct evidence of discrimination. The mere fact that a fertile
mind can conjure up some innocent explanation for such a comment
does not undermine its standing as direct evidence." (citation
omitted)). We also note that the statement in Fernandes,
although not direct evidence, when combined with the other
evidence in that case enabled the plaintiffs to reach a jury
under McDonnell Douglas. 199 F.3d at 588-89.
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was insufficient evidence linking the manager to the actual
decisionmaking process for the statement to be admissible. Id.
at 13-14.
Weston-Smith offered as direct evidence at summary
judgment her testimony about both Neumann's statement regarding
Neumann's conversation with Bowles and Bowles's silence at the
lunch with Weston-Smith. The district court concluded that
Weston-Smith's testimony about Neumann's supposed statement
about what Bowles purportedly said is double hearsay and
inadmissible. Weston-Smith, 153 F. Supp. 2d at 69. Weston-
Smith does not challenge that conclusion on appeal. The
appellate issue instead concerns Bowles's silence in the face of
Weston-Smith's accusation that Bowles had made the statement to
Neumann. The district court held it was of doubtful
admissibility and so ambiguous that it could not be considered
direct evidence of discrimination or retaliation. Id. at 69-70.
The court did not, however, fully resolve the question of
admissibility. Id.
This ruling presents a several-part evidentiary
question. Weston-Smith argues that the underlying statement --
that Bowles was laid off because of her maternity leave -- is an
admission, that Bowles is for this purpose an agent of the
Hospital, and that Bowles's failure to respond to Weston-Smith
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when accused of making the statement constitutes Bowles's
adoption of that admission -- on behalf of the Hospital -- by
silence. Weston-Smith could not get the statement into evidence
otherwise because Bowles and Neumann deny the encounter. Her
argument presents two questions: whether the statement itself
met the criteria for the admission of a party-opponent, and if
so whether Bowles by her silence adopted that admission at the
lunch with Weston-Smith.5
We start with the general requirements for an
admission. For the statement of an employee to be the admission
of a corporate or institutional employer, it must fit within
subsection (C) or (D) of Federal Rule of Evidence 801(d)(2),
which reads:
Admission by party-opponent. The statement is offered
against a party and is (A) the party's own statement,
in either an individual or a representative capacity
or (B) a statement of which the party has manifested
an adoption or belief in its truth, or (C) a statement
by a person authorized by the party to make a
statement concerning the subject, or (D) a statement
5 Weston-Smith's testimony is almost entirely consistent
that Bowles said nothing in response to Weston-Smith's
questions. She did once, when questioned by counsel for the
Hospital, affirm that Bowles had "said she was sorry." That
affirmation conflicts with her repeated statements, both earlier
and later, that Bowles's response was "[n]ot in words" or was in
"body language"; that Bowles "change[d] the subject," and
"didn't answer." Even applying the lenient standards of summary
judgment, the only reasonable reading of Weston-Smith's
testimony as a whole is that Bowles remained silent, and we
assess the case on that basis.
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by the party's agent or servant concerning a matter
within the scope of the agency or employment, made
during the existence of the relationship, or (E) a
statement by a coconspirator of a party during the
course and in furtherance of the conspiracy. The
contents of the statement shall be considered but are
not alone sufficient to establish the declarant's
authority under subdivision (C), the agency or
employment relationship and scope thereof under
subdivision (D), or the existence of the conspiracy
and the participation therein of the declarant and the
party against whom the statement is offered under
subdivision (E).
The statement of an individual defendant may be a direct
admission under subsection (A). Bowles is not a defendant; the
Hospital is. In order for the statement to be an admission,
therefore, Weston-Smith must show through evidence other than
the statement itself either that Bowles was authorized by the
Hospital to make the statement or that Bowles was the Hospital's
agent and the statement concerned a matter within the scope of
her employment, made while she was employed. As we discuss
below, she must also show that Bowles adopted the statement
through her silence in the face of Weston-Smith's accusation.
It is undisputed that the relevant decisionmaker in
this case was Melin, the Hospital's President. It is also
undisputed that Bowles had held the position of Vice President
for Patient Care Services, that her position was eliminated, and
that she became one of the five Program Directors, the Program
Director of Medical Services. Moreover, there was evidence that
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Bowles was not at all involved in the decision to lay Weston-
Smith off: the testimony was that Melin, without discussing the
fate of specific individuals, told his management team,
including Bowles, about the new overall structure he had in
mind; that Melin told her his reasons for putting Neumann into
the new position; and that Bowles thus learned that Weston-
Smith's position would be eliminated. Nevertheless, Bowles was
Weston-Smith's direct supervisor, and we do not think it is
clear that a statement regarding the reasons for Weston-Smith's
termination would necessarily be outside the scope of her
employment. Even assuming that the matter was within the scope
of Bowles's employment, however, the district court's other
reasons for holding Bowles's silence not to amount to direct
evidence are solid.
The district court wrote that it was doubtful that
Bowles's silence could constitute an adoptive admission, and
that if admissible it did not amount to direct evidence.
Weston-Smith, 153 F. Supp. 2d at 69-70. Weston-Smith's theory
is that Bowles, by failing to deny the statement that she had
told Neumann that Weston-Smith had been laid off because of her
maternity leave, adopted that statement. See generally 2
McCormick on Evidence § 262 (J. Strong et al. eds., 5th ed.
1999) (discussing the doctrine of admission by silence). The
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trial judge plays a screening role in ruling whether a party
(or, as here, its agent) has adopted an admission by silence.
In Vazquez v. Lopez-Rosario, 134 F.3d 28 (1st Cir. 1998), we
held that "[i]n all [such] cases, the burden is on the proponent
to convince the judge that in the circumstances of the case a
failure to respond is so unnatural that it supports the
inference that the party acquiesced in the statement." Id. at
35 (quoting Ricciardi v. Children's Hosp. Med. Ctr., 811 F.2d
18, 24 (1st Cir. 1987) (quoting J. Weinstein & M. Berger,
Weinstein's Evidence § 801(d)(2)(B)[01], at 801-202 n.15
(1985))). In making the evaluation, the trial judge considers
the nature of the statement, the identity of the person offering
the testimony, the identity of the maker of the statement, the
context, and whether the circumstances as a whole show that the
lack of a denial is so unnatural as to support an inference that
the undenied statement was true.
These circumstances do not meet that standard. It was
a social occasion: Bowles had invited Weston-Smith to lunch.
Weston-Smith testified that during that lunch, she told Bowles
that Neumann had said that Bowles had made the statement to
Neumann. The district court correctly concluded that in context
there might have been a great many reasons why Bowles was silent
on the point and changed the subject, and those other reasons
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made it far from unnatural for Bowles to handle the matter as
she did. Weston-Smith, 153 F. Supp. 2d at 69. We add another:
Bowles could not know what Neumann had or had not said to
Weston-Smith.6 See 5 Weinstein's Federal Evidence
§ 801.31[3][d], at 801-58 (J. McLaughlin ed., 2d ed. 2001) ("[A]
court may find, after evaluating the type of statement and who
made it, that the party could not have been expected to deny it
because the party lacked the information necessary to assess its
truthfulness.") The silence was not an adoptive admission.
Finally, even if the district court, exercising its
discretion, might have concluded that the evidence just barely
met the criteria for admissibility, the court was plainly
correct to hold that this was not direct evidence. Its
probative value is not sufficiently strong. The reasons why
Bowles did not respond with a vigorous denial were ambiguous at
best, and Bowles was neither involved in the decision nor
necessarily aware of the reasons Weston-Smith lost her job.
From this conclusion it follows that Weston-Smith must present
6 Further, there is no reason to think that Bowles would
know, even as to her own purported statement, whether the
statement was true as to the reasons for the layoff. Rather,
assuming that she made some statement regarding those reasons,
she might have been engaging in speculation about a matter of
which she had no personal knowledge. This is particularly
plausible because, even on Weston-Smith's version of events,
Bowles was speaking to Neumann, not to Weston-Smith.
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her case within the burden-shifting framework of McDonnell
Douglas.
B. McDonnell Douglas
The district court found that Weston-Smith's evidence
did not create a genuine issue of material fact as to whether
the Hospital's articulated legitimate reason for the layoff was
a pretext. Weston-Smith, 153 F. Supp. 2d at 71. The Hospital's
stated reasons justify both Melin's decision to eliminate
Weston-Smith's original position and his preference for Neumann
over Weston-Smith for the new Surgical Program Director
position.
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1. The Hospital's reasons
Melin testified as follows. He was responsible both
for creating the new management structure resulting from the
need to cut staff and for picking the new Surgical Program
Director. The Hospital lacked the funds to maintain both a new
Surgical Program Director and the Peri-Operative Services
Director, the position Weston-Smith held. Weston-Smith's
maternity leave had, he said, nothing to do with the elimination
of her position. The restructuring affected about 20 jobs,
although this number includes some employees who were rehired in
new positions, as Neumann was. Employees other than Weston-
Smith were laid off, including at least one higher in the
organization than she, and other management positions were
eliminated.
After the reorganization, Neumann as the new Surgical
Program Director assumed all of Weston-Smith's prior
responsibilities, plus additional ones. Melin had considered
both Weston-Smith and Neumann for the new job, which was in many
ways similar to Weston-Smith's old job. He picked Neumann
because she, in his view, fit better into the upgraded job, now
a part of senior management. Melin thought the difference
between the old job and the new one was that the old was a
"management role"; the new, a "senior management," or
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"leadership," role requiring "leadership and support from the
rest of the organization and a vision for a bigger picture." He
had two primary reasons for selecting Neumann. First, he had
observed Neumann's leadership skills when she served as chair of
the Hospital's successful, recent capital campaign. During that
process -- which involved asking employees to contribute to the
Hospital's fundraising for a new building even as it laid other
employees off -- Melin had seen Neumann build loyalty and
morale, and win employee support. Second, he had faced Neumann
at the bargaining table. She had been chair of the nurses'
collective bargaining unit for a number of years; Melin had seen
that she was skilled with budgets and that she could lead. She
won his respect.
2. Weston-Smith's response
Weston-Smith argues that a jury could find these
reasons to be pretext on several grounds. The elimination of
the position to save money, she says, was pretextual because the
new job was really her old one without significant changes.
Moreover, the total number of positions in her department stayed
the same, and the salary of her former job was increased when it
became the Surgical Director's job. This argument takes too
myopic a view; overall, several management positions were
eliminated, so that the reorganization did save the Hospital
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money. That the reorganized jobs encompassed functions of
former jobs is unsurprising. Functions rarely go away; but how
functions are handled does change, and changes can lead to
greater efficiency.
Weston-Smith is correct that an employer may not try
to shield a discriminatory or retaliatory termination by hiding
it in a layoff. Smith v. F.W. Morse & Co., 76 F.3d 413, 422
(1st Cir. 1996) ("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."). But there is little, if any,
admissible evidence suggesting that the decision to merge
Weston-Smith's job function into a higher level job in a
streamlined organization was motivated by either retaliation or
discrimination.
Weston-Smith's attack on the reasons given for the
choice of Neumann over Weston-Smith herself as pretextual is
similarly flawed. Weston-Smith says that Melin's generalized
subjective assessments about "leadership" and "vision" to
support the creation of a new job and the choice of Neumann are
insufficient. Subjective judgment may mask an improper motive,
as Weston-Smith suggests. Melin's explanation, however, is not
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sheer subjectivity. Melin had observed Neumann over a period of
years as she successfully performed demanding tasks. These
tasks -- heading the capital campaign and the nurses' bargaining
unit -- demonstrated Neumann's skills. Absent further evidence
of discrimination or retaliation, which Weston-Smith has not
produced, there is no reasonable inference of pretext.
Melin's statement that he wanted Neumann on his senior
management team must be pretext, Weston-Smith argues, because
Weston-Smith was terminated and discouraged from even applying
for the new position before Neumann was ever told of or accepted
the new position. No reasonable inference of pretext can be
drawn from this. Although it was not certain that Neumann would
accept, it is improbable that she would decline a position with
higher pay on the senior management team, working directly under
Melin, whom she knew. Moreover, the Hospital might easily have
wished to avoid the awkward situation of informing Neumann, then
Weston-Smith's subordinate, of the decision to lay Weston-Smith
off before Weston-Smith herself found out.
Weston-Smith also relies on her relative qualifications
for the new job compared with Neumann's. She stresses Neumann's
testimony that she had no management experience and did not have
a masters degree, while Weston-Smith had both. This argument is
nothing more than second-guessing Melin's decision about whose
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skill set would be more valuable. That Melin might have decided
in Weston-Smith's favor based on her own skills would not permit
a jury to infer that his choice of Neumann was either
discrimination or retaliation. Moreover, Weston-Smith places
too much emphasis on whether a job was termed "management" and
on credentials. Melin could reasonably look behind labels and
degrees, and rely on his own experience with Neumann and
observation of her leadership skills, regardless of whether she
had played a union or a management role at the time. That
approach does not render his decision so unlikely as to permit,
from that and little more, a jury inference of improper motive.
Beyond her attacks on the Hospital's proffered reason,
Weston-Smith presents a few more pieces of circumstantial
evidence of discrimination or retaliation on the Hospital's
part. These consist of her own testimony that she overheard two
doctors complaining about her absence on maternity leave;
Neumann's additional testimony that there had been complaints
about Weston-Smith's "[l]ack of accessibility" (although not
that these complaints were related to the maternity leave); and
Bowles's silence, if admissible, in the face of Weston-Smith's
accusatory question. As to the testimony of complaints, nothing
links those complaints to the decision process; nor do they
appear sufficiently pervasive to justify a finder of fact in
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inferring such a link. As to the silence, we have already given
the reasons that, if admissible, it has little probative value.
We conclude that Weston-Smith has produced insufficient
evidence to take her case to a jury within the McDonnell Douglas
framework. Although her prima facie case is undisputed, the
Hospital's proffered reasons for her termination are plausible
and coherent, and neither her criticisms of those reasons nor
her independent circumstantial evidence of an improper motive,
whether taken apart or together, are sufficient to require a
jury trial. See Zapata-Matos v. Reckitt & Colman, Inc., 277
F.3d 40, 47 (1st Cir. 2002) ("[A] slight suggestion of pretext,
absent other evidence from which discrimination can be inferred,
[does not] meet[] plaintiff's ultimate burden.").
III.
For the reasons given, we affirm the judgment of the
district court. No costs are awarded.
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