United States Court of Appeals
For the First Circuit
No. 03-1972
ROY HILLSTROM,
Plaintiff, Appellant,
v.
BEST WESTERN TLC HOTEL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
William J. McLeod, with whom Robert S. Messinger and Cutler
McLeod PC were on brief, for appellant.
Guy P. Tully, with whom Richard W. Paterniti and Jackson Lewis
LLP were on brief, for appellee.
December 31, 2003
LYNCH, Circuit Judge. Roy Hillstrom, then age 42, was
terminated from his job at the Best Western TLC Hotel in Waltham,
Massachusetts in April 2002. His boss, Matthew Phipps, said it was
for poor job performance. Hillstrom sued, alleging he had been
discriminated against because of his age and gender. He also
claimed that Best Western violated the Family and Medical Leave Act
of 1993, 29 U.S.C. § 2601 et seq., by changing his employment
position when he returned in the first week of March 1999 from a
medical leave due to an aneurysm. The district court entered
summary judgment for Best Western on all claims. We affirm. In
doing so, we decide an issue of first impression in this circuit:
the standard for determining whether a violation is "willful" for
purposes of the FMLA three-year statute of limitations.
I.
We recite the facts in the light most favorable to
plaintiff, the non-moving party, on our review of summary judgment.
No material facts are in dispute; the question is rather the range
of permissible inferences.
Roy Hillstrom was hired as a night manager in 1981 by the
Best Western TLC hotel in Waltham, Massachusetts. In 1988 he was
promoted to day manager of the hotel, as well as the affiliated
East Hotel. In that position, Hillstrom reported directly to the
president of the company, Anthony LaCava, Sr., and oversaw
housekeeping, maintenance, reservations, and front desk operations.
-2-
Two years later, Hillstrom was promoted to general manager of the
Rooms Division of the Waltham Best Western TLC and assigned
responsibility for the Rooms Division and its employees.
In 1994 the East Hotel was sold; Hillstrom retained his
job title but his duties were limited to the one hotel in Waltham.
Later that year, Anthony LaCava, Jr. became president of the
company after the death of his father. Hillstrom then reported to
him.
Hillstrom's title, general manager of the Rooms Division,
was apt; operations in the Waltham hotel were split between that
division and the Food and Beverage Division. Responsibility for
food and beverages at the Best Western TLC in Waltham had been
outsourced to another company, Norben, Inc. In at least one other
hotel owned by the LaCava family, the Marlborough Royal Plaza, the
Food and Beverages Division was not outsourced. Matthew Phipps,
roughly the same age as Hillstrom, was the manager of that division
at the Marlborough hotel.
The ambitious Phipps approached LaCava in September or
October of 1998 with plans to "grow" the business, which included
Phipps's becoming general manager for the entire Waltham Best
Western TLC Hotel. LaCava declined at that point; the Waltham
hotel was then in costly renovations and money was not available
for more personnel, although LaCava hoped ultimately to manage the
food and beverages business in Waltham without outsourcing.
-3-
Several months later, in January 1999, Hillstrom suffered
an aneurysm and consequently left work on FMLA leave for about six
weeks. In February 1999, while Hillstrom was on leave, LaCava
changed his mind about Phipps's proposal. He promoted Phipps to
general manager of the Waltham hotel. LaCava later testified that
Phipps's promotion was part of a larger strategy to consolidate
management at the Best Western and have fewer people directly
reporting to him. He explained that he had already assigned
general managers for each of the other properties he owned and that
he had been advised in February that he could afford a general
manager for the Waltham hotel because the renovation work was
concluding. As to why Phipps and not Hillstrom got the promotion
to general manager, LaCava said that, while he was satisfied with
Hillstrom's performance as general manager of the Rooms Division,
he wanted the hotel to be led by someone like Phipps who had a
background in food and beverage services. Experience in that area
was particularly important for the Best Western because it was
about to start providing those services internally for the first
time. And LaCava, whose office was located at the Marlborough
hotel, spent little time overseeing operations at the Waltham
hotel.
When Hillstrom returned to work in March 1999, he found
that his job had changed: he no longer reported directly to upper
management, but instead reported to Phipps. Phipps had moved
-4-
himself into Hillstrom's office and removed Hillstrom's belongings.
Hillstrom was relegated to a smaller office and his title was
changed to "Rooms Division Manager," though his responsibilities
initially remained the same. His pay and benefits were the same.
Gradually, tension developed between Phipps and Hillstrom, and
Phipps became critical of Hillstrom's failure to enforce and
implement new hotel procedures that Phipps had established.
Hillstrom acknowledges that Phipps expressed dissatisfaction to him
about his failure to implement these procedures at least twice
orally.
A later critical memorandum, dated March 27, 2000, was
even more pointed, telling Hillstrom that he was on a thirty-day
probationary period. Phipps specifically faulted Hillstrom for
failing to: (1) use consistently the computer management system
that displayed all designated room types and room rates; (2)
provide Phipps with requested backup documentation for items listed
in the computer system; (3) consult with Phipps about changes in
the status of various room packages and discounted specials prior
to making the changes/adjustments; (4) provide Phipps with daily
central reservation office reports; (5) provide Phipps with
completed "call around sheets" identifying the rates of local
competitor hotels; (6) arrange for all staff to be in proper
uniforms; (7) make certain that check-in staff used the guest's
name at least three times; and (8) make sure that registration
-5-
cards were completely filled out. In his deposition, Hillstrom
conceded the accuracy of some, but by no means all, of Phipps's
criticisms.
A few days later, Hillstrom contacted the human resources
manager, Denise Blaise, to complain. He said that he had been
"unfairly judged" and that most of the issues Phipps had raised in
the memo had not previously been brought to his attention.1
Thirty days after the March 27 memo, Phipps terminated
Hillstrom's employment. At the time, Hillstrom was age 42 and
Phipps was age 40. Hillstrom's job was then performed in part by
a new employee, Eva Auranen, who was younger and female. Auranen
had been hired two weeks before Hillstrom's termination.
In his suit, Hillstrom alleged that he was discriminated
against on the basis of his gender and age in violation of the
ADEA, Title VII, and Mass. Gen. L. ch. 151B § 1 et seq. He also
claimed that his rights under the Family and Medical Leave Act were
violated because, inter alia, he was demoted upon his return to
work.2
1
The record does not describe Blaise's response to Hillstrom's
complaint, as most of Blaise's deposition is not in the record.
2
Hillstrom also claimed that Best Western TLC violated its
contractual obligations, arising from its employee handbook, in not
following the proper procedures when it fired him. There is no
appeal on that point.
-6-
II.
The district court awarded summary judgment to Best
Western on each of Hillstrom's claims. On the discrimination
claim, the court concluded that there was no "direct evidence" of
discrimination and applied the burden-shifting framework of
McDonnell-Douglas v. Green, 411 U.S. 792 (1973). It determined
that Hillstrom failed to make out a prima facie case of
discrimination because he did not demonstrate that he performed
adequately on the job. In particular, the court noted that
Hillstrom never disputed the allegation that he failed to comply
with the procedures implemented by Phipps. The district court also
granted summary judgment for Best Western on the FMLA claim, noting
that Hillstrom received the same pay and benefits and had
essentially the same duties when he returned from sick leave as he
had prior to his aneurysm. Although the court acknowledged that
some elements of his job did change, it determined that any change
was insufficient to justify a finder of fact in concluding there
was an FMLA violation.
III.
Review of the district court's entry of summary judgment
is de novo. Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999).
On appeal, Hillstrom argues that the district court's
approach was incorrect in light of a subsequent Supreme Court case,
Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003). Hillstrom
-7-
correctly points out that the district court followed the law in
this circuit at that time: usually the availability of a mixed-
motive analysis depends on the plaintiff's producing "direct
evidence" of discrimination. Desert Palace overruled that rule.
See id. at 2153-55; Estades-Negroni v. Assocs. Corp., 345 F.3d 25,
30 (1st Cir. 2003). Hillstrom argues that this repudiation of the
direct evidence requirement in mixed-motive cases is inconsistent
with the district court's application of the McDonnell-Douglas
burden-shifting framework.
Hillstrom also argues that there is a genuine issue of
material fact as to whether gender or age was a motivating factor
in his termination, and that the district court did not give due
weight to Phipps's reputation for hiring younger females.
Additionally, Hillstrom argues that the district court's
determination that he did not establish a prima facie case of
discrimination under the McDonnell-Douglas framework was incorrect.
He argues that he presented sufficient evidence that Phipps's
concerns about his job performance were illegitimate and therefore
were insufficient to overcome the minimal requirements of a prima
facie case.
Finally, Hillstrom argues that Best Western was not
entitled to summary judgment on the FMLA claim because his job, in
fact, substantially changed when he returned from medical leave.
-8-
A. Discrimination Claims
We place to one side Hillstrom's contentions regarding
the interaction between Desert Palace and McDonnell-Douglas.3 It
is doubtful that Hillstrom has preserved this issue, as he never
suggested to the district court that he was presenting a mixed-
motive case. Further, even assuming the issue were preserved, it
would make no difference here: even in mixed-motive cases,
plaintiffs must present enough evidence to permit a finding that
there was differential treatment in an employment action and that
the adverse employment decision was caused at least in part by a
forbidden type of bias. Hillstrom's evidence does not meet that
test.
We also put aside the question whether Hillstrom
established a prima facie case. We turn, instead, to whether there
is evidence that, notwithstanding the employer's stated reasons for
the termination, the real reason, at least in part, was age and
gender discrimination. We have used this technique before, and do
so again here. See Rivera-Aponte v. Rest. Metropol # 3, Inc., 338
F.3d 9, 11 (1st Cir. 2003); Straughn v. Delta Air Lines, Inc., 250
F.3d 23, 33 (1st Cir. 2001).
3
We do note that in Raytheon Co. v. Hernandez, No. 02-749,
2003 U.S. LEXIS 8965, at *11 (Dec. 2, 2003), the Supreme Court used
the McDonnell-Douglas framework without commentary in a post-Desert
Palace case.
-9-
Hillstrom's pretext argument relies on two themes. The
initial theme is that while he failed to meet some of the
performance standards set out by Phipps, those standards were not
legitimate. That illegitimacy, he says, establishes that Best
Western's explanation for firing him was pretext and that a real
reason was discrimination. The second theme is that Phipps imposed
these illegitimate expectations because he preferred younger
females (and not older males) to work for him. This, Hillstrom
says, shows causation based on impermissible bias. Hillstrom
purports to show this bias by what he terms "statistical evidence,"
Phipps's reputation, and the fact that two weeks into Hillstom's
one-month probationary period, Phipps hired a young woman, Eva
Auranen, who took over at least part of Hillstrom's job when he was
terminated.
There is no evidence that any of Best Western's job
expectations were illegitimate. To the contrary, they were quite
reasonable on their face. That Hillstrom disagreed with their
wisdom does not make them illegitimate. Nor is there any evidence
that Hillstrom was singled out for higher expectations. There is
evidence that all employees were expected to meet the new standards
and that many, like Hillstrom, did not like the standards.
Hillstrom stated that all employees save one were dissatisfied with
Phipps's management style. But the hotel prospered under Phipps;
-10-
its revenues increased from $2.7 million to $4 million in the year
and a half following his promotion to general manager.
It is possible, in theory, for seemingly reasonable
expectations to be unreasonable in application. But the record
shows that the goals set by Phipps were not impossible to meet;
rather, it suggests that Hillstrom thought them silly or just wrong
and so did not comply. Indeed, Hillstrom admitted that he failed
to meet several of the expectations Phipps set for him, including
failing to provide Phipps with "call around sheets," failing to
ensure that all staff wore proper uniforms, failing uniformly to
enforce the guest greeting by employees at the front desk, and
failing properly to include the special requests of guests in the
reservation system. Hillstrom has not presented evidence of
disparate treatment sufficient to get to a jury. He received
progressive warnings that his performance was deficient and there
is no evidence that any other employees were treated better or
exempted from Phipps's new managerial expectations.
The second theme does not save Hillstrom from summary
judgment. As the district court noted, the "statistical evidence"
on which Hillstrom relied yielded no useful information. Valid
statistical evidence may play a helpful role even in disparate
treatment cases, but only if it tends to prove the discriminatory
intent of the decisionmakers involved. That often will be
difficult. See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st
-11-
Cir. 1993). Hillstrom's evidence had the right focus: Phipps. He
offered evidence that roughly 75% of all individuals terminated by
Phipps were over 40 and that 87% of those terminated were male (as
the trial court understood the table, the rates were actually 42%
and 75%, respectively). But absent evidence of the characteristics
of the universe of employees supervised by Phipps, those figures
are not probative.
Hillstrom also relies on inadmissible hearsay from other
employees that, in their view, Phipps terminated older employees to
give work to younger employees, and that he preferred to hire
younger employees. This evidence was not admissible and could not
be considered in the summary judgment analysis.
B. FMLA Claim
Hillstrom argues that Best Western violated its
obligations under the FMLA because it did not restore him to the
same or an equivalent position on his return from medical leave.
See 29 U.S.C. § 2614(a)(1). The district court, on the merits,
ruled that the job to which Hillstrom returned was substantially
similar. We do not reach that issue because we find that
Hillstrom's FMLA claim is time-barred.
Hillstrom returned from medical leave in March 1999 and
instituted this action in April 2001. The district court held that
this claim was not barred by the FMLA's two-year statute of
limitations because it interpreted Hillstrom's claim to include a
-12-
second argument under the FMLA: that he was ultimately fired in
April 2000 in retaliation for his taking medical leave under the
FMLA approximately a year earlier.4 See 29 C.F.R. § 825.220(c)
("An employer is prohibited from discriminating against employees
. . . who have used FMLA leave."). Because the FMLA's two-year
statute of limitations begins to run only "after the date of the
last event constituting the alleged violation for which the action
[under the FMLA] is brought," the district court held that this
second FMLA argument, premised on actions occurring only a year
before the suit was filed, rendered Hillstrom's FMLA claim timely.
On appeal, Hillstrom chooses not to rely on the district
court's limitations period reasoning; he makes no claim that his
ultimate termination from Best Western constituted retaliation.
Instead, he presses the FMLA claim based solely on Best Western's
alleged failure to restore him to a substantially similar position
upon his return from medical leave. On its face, that retaliation
claim accrued more than two years before Hillstrom filed suit.
Hillstrom argues that his FMLA claim is nonetheless
timely because Best Western's failure to return him to his original
position was a "willful" violation of the FMLA. In the case of
4
Best Western objected to the district court's interpretation
of Hillstrom's FMLA claim, arguing that Hillstrom had not given
fair warning of the theory that his ultimate termination violated
the FMLA in addition to Title VII. The district court acknowledged
that there was "some merit" to this complaint, but assumed, without
deciding the issue, that the defendant had been given sufficient
notice of the argument.
-13-
such willful violations, the FMLA limitations period is increased
from two years to three. See 29 U.S.C. § 2617(c)(2). Hillstrom
argues that the alleged FMLA violation here was willful because
Best Western's failure to restore him to his original position was
done "either as a result of [his] taking leave or in retaliation
for his taking leave."
Hillstrom's argument mistakes the meaning of willfulness.
We hold that in order to establish a willful violation of the FMLA,
a plaintiff must show that "the employer either knew or showed
reckless disregard for the matter of whether its conduct was
prohibited by the statute." McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1988) (interpreting a parallel distinction between
willful and negligent violations in the FLSA statute of
limitations). As the Supreme Court explained in McLaughlin:
If an employer acts reasonably in determining its legal
obligation, its action cannot be deemed willful . . . .
If an employer acts unreasonably, but not recklessly, in
determining its legal obligation, then . . . it should
not be . . . considered [willful.]
Id. at 135 n.13. In crafting this understanding of the term
willful, the Court expressly rejected two other tests for
determining willfulness: the Jiffy June test that asked only
whether the employer knew the Act "was in the picture," Coleman v.
Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir. 1972), and
another test that asked if the employer acted unreasonably in
-14-
believing it was complying with the statute. McLaughlin, 486 U.S.
at 134.
There is every reason to apply this FLSA standard for
willfulness to FMLA claims. McLaughlin, a 1988 decision, predated
the 1993 enactment of the FMLA. The statutes use the term
"willful" in similar ways and in identical contexts: both provide
for a two-year statute of limitations except in cases of willful
violations, when a three-year limitations period applies. Compare
29 U.S.C. § 2617(c)(2), with id. § 255(a). When enacting the FMLA,
Congress is presumed to have known the definition that the Supreme
Court had given to the term "willful." See Am. Nat'l Red Cross v.
S.G., 505 U.S. 247, 252 (1992). Since McLaughlin, the Supreme
Court has used this definition of "willful" in another analogous
context. In Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), the
Court applied the definition of "willful" enunciated in McLaughlin
to a provision of the ADEA that provides for liquidated damages in
the case of willful violations. See id. at 614-17. The Court
reaffirmed that "[t]he word 'willful' is widely used in the law,
and, although it has not by any means been given a perfectly
consistent interpretation, it is generally understood to refer to
conduct that is not merely negligent." Id. at 615 (quoting
McLaughlin, 486 U.S. at 133).
-15-
The McLaughlin definition of willfulness is also the
definition that other circuits have adopted when interpreting the
FMLA, albeit in unpublished opinions.5
Even assuming, without deciding, that there is sufficient
evidence that Best Western decided to alter slightly Hillstrom's
employment conditions because he took medical leave under the FMLA,
there is no evidence that this constituted a "willful" violation of
the statute and thus no genuine question of material fact on the
issue.
IV.
The grant of summary judgment for the defendant is
affirmed. Costs are awarded to Best Western TLC Hotel.
5
Williams v. N.W. Airlines, No. 01-6006, 2002 U.S. App. LEXIS
26362, at *5-*6 (6th Cir. Dec. 18, 2002) (unpublished opinion);
Packard v. Cont'l Airlines, Inc., No. 01-4013, 2001 U.S. App. LEXIS
26984, at *5 (10th Cir. Dec. 19, 2001) (unpublished opinion);
Settle v. S.W. Rodgers Co., No. 98-2312, 1999 U.S. App. LEXIS
15745, at *9 (4th Cir. July 12, 1999) (unpublished opinion).
-16-