United States Court of Appeals
For the First Circuit
No. 05-2246
JOSE QUINONES,
Plaintiff, Appellant,
v.
HOUSER BUICK,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Steven R. Weiner on brief for appellant.
John C. Sikorski and Robinson Donovan, P.C. on brief for
appellee.
February 2, 2006
CAMPBELL, Senior Circuit Judge. Appellant plaintiff Jose
Quinones appeals from the granting of summary judgment for appellee
defendant Houser Buick ("Houser") in the United States District
Court for the District of Massachusetts. We affirm.
I. Background and Facts
Quinones, a former automotive technician at Houser, sued
Houser for national origin-based employment discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ("Title VII"), and its state counterpart, Mass. Gen. Laws ch.
151B, §§ 1-10 ("Chapter 151B"). Quinones voluntarily left his job
in March 2003, but he alleges that the defendant's illegal
discrimination against him as a person of Hispanic origin resulted
in the "wrongful payment of wages."
Quinones filed his complaint in state court on May 17,
2004 and listed two causes of action: the Title VII claim and the
Chapter 151B claim. On June 10, 2004, Houser removed the action to
federal court. With the parties' consent, the case was assigned to
a magistrate judge for all purposes, pursuant to 28 U.S.C. §
636(c). The defendant moved for summary judgment, and the
magistrate judge entered summary judgment in favor of the defendant
on July 14, 2005 on the grounds that Quinones had not introduced
evidence demonstrating pretext on the part of Houser. This appeal
followed.
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Contrary to the district court's local rule, Quinones
failed to submit a concise statement of the material facts of
record as to which he contended that there existed a genuine issue
to be tried. U.S. Dist. Ct. Rules D. Mass., LR 56.1. Given his
omission, the court deemed admitted a number of the facts set forth
in the defendant's statement of facts. In its motion and
accompanying statement of facts, Houser relied upon excerpts of
Quinones' deposition; his answers to interrogatories; an affidavit
from Quinones' supervisor, Kevin O'Connor; the deposition of
another Houser employee, Jeremy Laduke; and the deposition of Angel
Delrio, the owner of Quinones' current place of employment, St.
James Custom Auto Body. Quinones filed an opposition to the
defendant's motion for summary judgment that was one page in length
and that cited no case law. Together with the opposition, Quinones
also submitted a number of deposition pages and a personal
affidavit. Compiled as described, the record reflects the
following facts, which we view in the light most favorable to
Quinones, the non-moving party. Roldan-Plumey v. Cerezo-Suarez,
115 F.3d 58, 61 (1st Cir. 1997).
Quinones worked for Houser as an automotive technician on
three separate occasions between February 27, 1990 and the day he
quit, March 28, 2003. At all relevant times, he worked under
O'Connor, Houser's collision repair manager, who is the only person
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Quinones contends to have discriminated against him on the basis of
his Puerto Rican origin.
When, on March 25, 1999, Quinones began his third tenure
at Houser, he asked to be placed on a flat rate pay scale.
Thereafter he was not paid on an hourly basis as before but rather
at the specific rate computed for each particular repair job. The
precise details of how Houser computed the flat rate are not
entirely clear from the record. Defendant's employees asserted,
however, without contradiction, that Houser's computation of the
flat rate involved examining both the estimate and the work order,
and that a fast-working and knowledgeable employee could maximize
his earnings by completing a job in fewer than the total number of
hours Houser assigned to it and by then proceeding on to the next
job. In his affidavit, Quinones asserted that under the flat rate
system he earned approximately $28,000 per year in 2000 and 2001
and approximately $30,000 in 2002. Quinones went on to allege that
Wayne Barnes, a white co-worker, received pay of $1,000 per week
under the flat rate system, or about $52,000 a year. Because of
this disparity, because he feels he was continuously underpaid, and
because he says O'Connor made many slurs regarding his Puerto Rican
background, Quinones contends that Houser discriminated against him
on the basis of his Hispanic origin.
Houser denied that Quinones had produced any evidence
that he was not correctly paid under the flat rate system. Houser
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relied on its employees' depositions and affidavits to the effect
that flat rate compensation is a challenging system that places a
burden on the employee to understand and utilize it adroitly if he
wishes to maximize his compensation. Properly utilized, the flat
rate system was said to have the potential to reward employees in
excess of an hourly rate system. To maximize earnings on a flat
rate scale, however, an employee must complete jobs rapidly, be
well-organized, and have a good understanding of how the different
repair jobs are estimated and billed. Laduke testified that Barnes
was known as an especially capable and productive flat rate
employee, while Quinones "had a really hard time gripping" the
system. Although he did quality work, Quinones worked more slowly
and, from defendant's perspective, did not understand the way the
jobs were billed. In his own affidavit, Quinones denied that he
did not understand the flat rate system.
O'Connor sat down weekly with the body shop employees,
including Quinones, to go over the work diaries he required them to
keep. The diaries included their time cards and pay. Quinones did
not produce in the instant case any kind of itemization of work in
support of his claim that he was incorrectly paid under the flat
rate system, nor does the record contain evidence, as distinct from
Quinones' general charges, that Barnes was ever unfairly or
excessively paid. Houser asserts that the absence of itemization
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by Quinones reflected his general inability to grasp Houser's
system.
The record does contain statements by Quinones that
O'Connor often made comments in his presence demeaning his Puerto
Rican heritage. O'Connor denies this but concedes that he may have
once told Quinones, "you are a white man in a Puerto Rican body."
He says he made the comment "in jest." O'Connor also stated in his
affidavit that Quinones told him, "all you Irish are alcoholics."
In his brief on appeal, Quinones characterizes his relationship
with O'Connor as including "either good natured joking or
discriminatory comments."
In his answers to interrogatories, Quinones alleged that
his Puerto Rican guests were treated differently from the guests of
white employees but at his deposition was unable to state specific
dates when such incidents occurred and did not name any of the
visitors of white employees who were treated differently. Quinones
also alleged, in answers to interrogatories, that he was paid
improperly based on the hours that he worked, attaching work orders
to his answers. It would be impossible, however, for a fact-finder
to determine from what Quinones presented whether or not he was
underpaid or whether Houser improperly calculated what was due to
him. The information on these subjects is simply incoherent and
incomplete. Houser says that Quinones confuses estimates with work
orders and points out that he never complained formally of
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underpayment during the almost four years that he worked under the
flat rate system.
Quinones alleges, but without documentation or necessary
specifics, that he and other Hispanic employees were forced to work
from estimates that cheated them out of time actually spent
repairing a vehicle. But Quinones could remember only one other
employee, George, who was allegedly underpaid, and was unable to
recall George's last name. According to Quinones at his
deposition, George was an hourly employee, not a flat rate
employee. Quinones further claimed that he heard O'Connor make
racist comments to "several other Hispanic employees" but could not
recall the names of those employees. Quinones did not file a claim
for unpaid wages with the Wage and Hour Division of the
Massachusetts Attorney General's Office, pursuant to Mass. Gen.
Laws ch. 149, §§ 148, 150.
Quinones now works at St. James Custom Auto Body, where
Delrio, his boss, pays him an hourly rate because, Delrio testified
in his deposition, he believes that flat rate compensation causes
misunderstandings between employees and employers.
In his one-page opposition to the motion for summary
judgment, Quinones cited excerpts of three depositions: his own,
that of Laduke, and that of Terry Mille, another Houser employee.
The excerpts from Quinones' deposition reflect his testimony that
at management request, he had assisted another employee with his
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work and that he was the only Hispanic employee in a high-paying
job at the company. The Laduke deposition excerpt reflected
Laduke's testimony that he was able to negotiate with Houser to
keep his seniority when Houser purchased his former employer. The
Mille deposition excerpt reflected Mille's testimony providing the
names of the employees working in the office and on the floor.
Quinones characterizes the testimony as Mille's stating that
Quinones was the only Hispanic employee. Mille did not articulate
that point but rather testified when asked about three specific
employees that they are white. Mille did not testify that any
other employee besides Quinones was Hispanic.
Quinones' personal affidavit acknowledges that Wayne
Barnes was a fast auto body man but states that Quinones was a
better body man because his work was not returned for corrections
as frequently and because Quinones frequently repaired imperfect
work done by Barnes. Quinones testified that he is able to
"produce work in a competent manner and work at a reasonable rate
of speed." Quinones asserted further that he had an "excellent
understanding of the flat rate system" and that Wayne Barnes had
received beneficial treatment that Quinones did not receive. In
particular, Quinones charged, but without pointing to specific
facts and details supporting these charges, that O'Connor
manipulated Barnes' pay in order to provide Barnes with regular
income, gave him work credit hours for future work, and gave him
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easy jobs that he was able to finish quickly. Quinones also stated
that he (Quinones) did not receive the same treatment and that his
own weekly pay checks varied wildly in their totals. Quinones
testified that O'Connor asked him to help another body shop
employee with his work, though Quinones never received similar
assistance. Finally, Quinones compared the total money he made
over three years ($86,160.67) with that made by Barnes
($210,000.00) and claimed that he should have made the same amount.
Attached to the affidavit was an excerpt from Quinones' deposition
in which he testified that Wayne Barnes was a fast body man; an
excerpt from Laduke about his transferring his seniority to Houser;
and a chart listing Quinones' compensation in the year 2002.
II. Discussion
This Court reviews the district court's grant of summary
judgment de novo, viewing the facts, and drawing all reasonable
inferences, in the light most favorable to Quinones, and affirming
summary judgment only if there is no genuine issue as to any
material fact. Roldan-Plumey, 115 F.3d at 61. Summary judgment is
appropriate when "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 judgment as
a matter of law." Fed. R. Civ. P. 56(c). The party opposing the
motion "must set forth specific facts showing that there is a
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genuine issue for trial." Fed. R. Civ. P. 56(e). "Even in cases
where elusive concepts such as motive or intent are at issue,
summary judgment may be appropriate if the nonmoving party rests
merely upon conclusory allegations, improbable inferences, and
unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990).
As the district court noted, employment discrimination
cases alleging disparate treatment ordinarily proceed under the
three-step, burden-shifting framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and further explained in Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).1 First, the
plaintiff must make out a prima facie case of discrimination. The
burden then shifts to the defendant to present a legitimate, non-
discriminatory reason, sufficient to raise a genuine issue of
material fact as to whether it discriminated against the employee,
for the employment decision. Finally, the burden is placed on the
plaintiff to demonstrate that the non-discriminatory reason is mere
pretext and that the real reason was discrimination. McDonnell
Douglas, 411 U.S. at 802; see also St. Mary's Honor Ctr., 509 U.S.
at 510-11, 515-16.
1
This analysis applies generally to both Title VII and Chapter
151B claims. See Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st
Cir. 2000).
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The district court assumed arguendo that Quinones had
made out a prima facie case and found that Houser had presented a
legitimate reason for the employment decision, i.e., for the
relatively low amount paid to Quinones, by its asserting, in
effect, that employees like Barnes could legitimately make more
than Quinones under the flat rate system by, for example,
completing the same job more rapidly, keeping better track of the
work he did and seeking the most profitable jobs. In the first
sentence of his brief opposition filing, Quinones came close to
admitting the defendant's second-stage point: that employees such
as Barnes who better understood the flat rate system could earn
more in aggregate. Quinones wrote, "employees who knew how to
negotiate and/or were aware of their potential benefit
to . . . Defendant were able to get more advantageous working
arrangements then [sic] other employees." The court then focused
on the pretext issue. We do the same.
At the third stage of the McDonnell Douglas framework, it
becomes the plaintiff's burden to establish "that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination." Reeves, 530 U.S. at 143
(citation and internal quotation marks omitted). At the summary
judgment stage, the plaintiff "must produce evidence to create a
genuine issue of fact with respect to two points: whether the
employer's articulated reason for its adverse action was a pretext
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and whether the real reason was [national origin] discrimination."
Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999). The
plaintiff "must produce evidence to permit a reasonable jury to
conclude both that disparate treatment occurred and that the
difference in treatment was because of [national origin]." Id.
The district court rightly concluded that Quinones had
not met his burden at the third stage, stating particularly that
"his opposition memorandum is woefully deficient" and that "it is
not the court's responsibility--let alone within its power--to cull
the entire discovery record looking for facts which might convert
such a bald assertion [of discrimination] into a triable issue."
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It
is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work."); see also
Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431 (1st Cir. 2005)
("[S]ummary judgment may be appropriate if the nonmoving party
rests merely upon conclusory allegations, improbable inferences,
and unsupported speculation." (citation and internal quotation
marks omitted)).
On appeal, Quinones argues that the district court erred
in finding that he did not carry his burden of establishing
pretext. However, the selected pages of deposition testimony
submitted by Quinones with his opposition memorandum are
insufficient to establish that, because he earned less than Barnes,
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he was necessarily the victim of discriminatory conduct on the part
of his employer. Even accepting at face value Quinones' deposition
statement that he felt he was more experienced and produced better
work than Barnes, these factors alone would not show that Barnes
could not still have managed the flat rate system in such a way as
to earn more under it. It is undisputed, even by Quinones, that
Barnes was a rapid and knowledgeable worker. It is perfectly
possible, without unfair connivance by O'Connor, that Barnes
understood and worked the flat rate system more successfully than
did Quinones. Quinones' mere conclusory suspicion is no substitute
for specific evidence that discrimination was involved. See
Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)
(observing that plaintiff's subjective belief that she is being
discriminated against "does not, without more, demonstrate
pretext").
Quinones argues that his personal affidavit submitted
with his opposition to the summary judgment motion creates disputed
issues of material fact, but the affidavit, like his deposition
testimony, reflects only Quinones' subjective speculation and
suspicion that Barnes' greater earnings must have resulted from
discrimination rather than from other possible causes that might
just as easily have explained the discrepancy, supra. Quinones
appears to rely on Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 53 (1st Cir. 2000), in which we held that a
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self-serving affidavit could defeat summary judgment if the
affidavit "contains more than the allegations made in [his]
complaint [and] provides specific factual information based upon
[his] personal knowledge." Id.
Unlike the affidavit in Santiago-Ramos, however,
Quinones' affidavit does not contain adequate specific factual
information based on personal knowledge to back his allegation of
national origin discrimination and so create a triable issue. In
large part, it contains only Quinones' own speculation about the
way the body shop was run. Thus Quinones cites no supporting
evidence to which he could testify in court tending to prove his
conclusory allegation that Barnes' higher pay was based on
O'Connor's acts of favoritism as opposed to Barnes' own more
efficient work or ability to play the system, or for his allegation
that Barnes improperly received credit hours that Quinones did not
receive. Neither did Quinones indicate how he had come to have
personal knowledge of these alleged facts. See Cadle Co. v. Hays,
116 F.3d 957, 961 & n.5 (1st Cir. 1997) (self-serving affidavit
could be sufficient to defeat summary judgment but not if it
"neither contain[s] enough specifics nor speak[s] meaningfully to
matters within [the plaintiff's] personal knowledge"). Further,
Federal Rule of Civil Procedure 56(e) requires that all affidavits
submitted in conjunction with an opposition to a motion for summary
judgment "set forth such facts as would be admissible in evidence."
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Without first-hand knowledge of facts supporting his allegations,
Quinones could not simply testify to a belief that Barnes was given
advantages that Quinones was not.
As the district court observed, though cases at the third
stage of the McDonnell Douglas inquiry are often a close call for
the granting of summary judgment, Santiago-Ramos, 217 F.3d at 54,
this is not a close call. Quinones did not produce evidence that
Houser's justification for the amounts it paid him was pretextual.
His mere unsupported characterizations of why he believed Barnes'
total pay was higher was not evidence creating a triable issue. A
reasonable jury would be unable to find on the evidence in this
record that Houser had discriminatorily underpaid Quinones.
III. Conclusion
The district court's judgment is affirmed.
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