Smith v. Stratus Computer, Inc.

United States Court of Appeals United States Court of Appeals

For the First Circuit For the First Circuit

No. 94-1306

STEPHANIE S. SMITH,

Plaintiff, Appellant,

v.

STRATUS COMPUTER, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Laurence M. Johnson, with whom Ann E. Johnston and Fordham &

Starrett, P.C., were on brief for appellant.

Samuel A. Marcosson, Attorney, James R. Neely, Jr., Deputy

General Counsel, Gwendolyn Young Reams, Associate General Counsel, and

Vincent J. Blackwood, Assistant General Counsel, were on brief for the

Equal Employment Opportunity Commission, amicus curiae.

David H. Erichsen, with whom Peter A. Spaeth, Ann K. Bernhardt,

and Hale and Dorr, were on brief for appellee.

November 21, 1994

STAHL, Circuit Judge. Plaintiff Stephanie S. Smith STAHL, Circuit Judge.

sued her former employer, Stratus Computer, Inc. ("Stratus"),

for illegal sex discrimination. The district court granted

summary judgment for Stratus and Smith appeals. We affirm.

I. I.

Standard of Review and Background Standard of Review and Background

A. Standard of Review

Because we are reviewing a grant of summary

judgment, we view the facts in the light most favorable to

the non-moving party, drawing all reasonable inferences in

plaintiff's favor. Woods v. Friction Materials, Inc., 30

F.3d 255, 259 (1st Cir. 1994). 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 a

judgment as a matter of law." Fed. R. Civ. P. 56(c). When a

party fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and

on which that party bears the burden of proof at trial, there

can no longer be a genuine issue as to any material fact: the

failure of proof as to an essential element necessarily

renders all other facts immaterial, and the moving party is

entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). See also Woods, 30

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F.3d at 259. Even in an employment discrimination case,

"`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.'" Goldman v. First

Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)

(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d

5, 8 (1st Cir. 1990)).

B. Factual and Procedural Background

Smith was hired in May 1989 as director of product

marketing by Stratus, a Marlboro, Massachusetts, corporation

that designs, manufactures and sells "fault-tolerant"

computer systems and products -- i.e., products that enable

customers to remain on-line in the event of a system failure.

Previously, Smith had worked for more than five years as a

marketing director for another Boston-area computer company

and had earned master's and doctoral degrees in psychology

from the University of Illinois. Smith received from Stratus

a $115,000 starting salary, a $15,000 sign-on bonus, and

options on 7,000 shares of Stratus stock.

Smith's first months at Stratus proceeded smoothly.

In December 1989, William Thompson, Smith's supervisor and

Stratus's senior vice-president of marketing, gave her a

favorable performance review. Thompson described Smith's

start at Stratus as "excellent," and wrote that she was

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"perceived as a substantial and valuable contributor to

Stratus." Thompson rated Smith's overall performance as

"exceed[ing] expectations in several significant areas," the

second-highest of five possible performance ratings.

Contemporaneous with her review, Smith received a 5% raise

and stock options for an additional 1,500 shares.

Around January 1990, as part of a company

reorganization, Smith came under the direct supervision of

Stratus co-founder Robert Freiburghouse, who held the title

of senior vice-president for marketing and engineering.

Before the reorganization, Thompson had recommended that

Smith be promoted to vice-president for product marketing --

a title that Smith thought was critical to her effective

interaction with executives in other departments.

Freiburghouse did not act immediately on Thompson's

recommendation; he testified in his deposition that he was

uncertain about her qualifications for the title. In April

1990, however, after personally supervising Smith for four

months, Freiburghouse recommended that Smith be named a vice-

president.

In June 1990, Smith received a 4.8% raise in

recognition of her new title as well as another 5% merit

raise, bringing her annual salary to $133,000. Although the

record contains no formal evaluation of Smith's work by

Freiburghouse, Smith stated that Freiburghouse told her that

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she was one of his top two employees, and that John Young,

Stratus's vice-president for human resources, told her that

Freiburghouse was very enthusiastic about her performance.

In deposition testimony, Freiburghouse described Smith's

performance only as "satisfactory." Freiburghouse did say,

however, that if she had not been performing well enough to

merit the title of vice-president, he would not have

recommended her promotion.

In the fall of 1990, Smith learned that the company

would again be reorganized at the end of that year, this time

bringing her under the supervision of Gary Haroian, Stratus's

general manager of corporate operations.

The prospect of working for Haroian worried Smith.

Haroian had a different view of marketing's proper function

within the company; he thought marketing should focus more on

supporting the sales staff and conducting rigorous pricing

analyses and less on product development, which he saw as the

purview of the engineering department. Months earlier,

Haroian had expressed some reservations to Freiburghouse

about Smith's promotion to vice-president, although the

evidence does not indicate whether Smith ever learned about

this. Smith did know, however, about Haroian's differing

vision of the marketing function; she testified in her

deposition that she knew he "wasn't a fan." In a meeting

with Freiburghouse before the change took effect, Smith

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expressed her concern about working for Haroian, even asking

Freiburghouse if she should quit. In her deposition, Smith

testified that she was not serious about quitting, but was

merely soliciting reassurance from Freiburghouse that she was

generally on the right track and would be able to work things

out with Haroian.

Things did not work out, though -- at least from

Haroian's perspective. Although Smith testified that she

received no indication that anything was seriously amiss

until a June 12, 1991, meeting with Haroian, Haroian

testified that the meeting was the culmination of several

weeks of mounting frustration over Smith's failure to

redirect the marketing effort in the way he desired. In

addition, Haroian testified that he had been hearing numerous

complaints about Smith's leadership and poor morale within

the marketing group. At the June 12 meeting, Haroian

outlined the problems he perceived, and Smith asked him

whether she should just take a severance package (Smith

testified that, as was her habit, she was reacting

emotionally, and was not serious about quitting). Haroian,

however, told Smith not to worry, that things were not all

that bad, and that he would think about how to proceed during

Smith's vacation, which was to begin the next day. Smith

went home that night and drafted a handwritten memo to

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Haroian outlining how she proposed to solve the problems he

perceived in marketing.

While Smith was on vacation, Haroian heard further

complaints about Smith's lack of leadership and focus from

mid-level managers who reported directly to Smith. At the

end of June, Haroian spoke with Stratus's president, William

Foster, and Stratus's human resources vice-president, John

Young, about removing Smith from her position as marketing

vice-president. Both of them agreed that Haroian should take

such action. On July 1, 1991, the day Smith returned from

vacation, Haroian met with Smith in his office and informed

her that he was removing her from her job as marketing vice-

president.

Exactly what happened next is disputed, but we

accept Smith's version of events. Haroian offered her a

severance package extending over six months, which Smith

rejected as unacceptably short. Then, and only then, Smith

claims, did Haroian offer her another position in the company

-- a position on Haroian's staff with unspecified duties,

coextensive with the proposed severance period. Smith

interpreted Haroian's actions as termination of her

employment rather than a suggestion that she be permanently

reassigned; no one at Stratus ever advised her differently.

The day after her meeting with Haroian, Smith cleared out her

office at Stratus. A week later, she called a meeting with

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her staff and announced that she was leaving, without making

clear to them whether she had been fired or had resigned.

During the week following her termination, Smith

met with John Young and another human resources manager,

Richard Marciante, to discuss her situation. Smith claims

that Marciante told her that she should not be overly

concerned about losing her job since her husband was employed

and could at least provide the family with one income.

Smith claims that her treatment was markedly

different from that of male vice-presidents and managers

whose performances were deemed unsatisfactory. Those

employees, Smith claims, either received more generous

severance packages than the six months offered to Smith or

were offered other suitable employment within the company.

In mid-July, when Smith asked Haroian why she was being

treated differently from these other executives, Haroian

simply shrugged. When Smith asked John Young the same

question, Young told her that he had asked Haroian that

question, and that Haroian had told Young that he simply

thought it better to sever Smith completely.

Smith filed complaints on October 15, 1991, with

both the Massachusetts Commission Against Discrimination and

the Equal Employment Opportunity Commission.1 Smith

1. Smith requested and received permission to withdraw her

complaints before both these agencies and pursue a private

action.

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commenced this action on January 13, 1992, by filing a

complaint in federal district court. In her complaint, Smith

charged Stratus with illegal discrimination on the basis of

her sex in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e,2 violation of the Equal Pay Act of

1963, 29 U.S.C. 206(d)(1), and violations of various

Massachusetts laws. On October 8, 1993, the district court

granted Stratus's motion for summary judgment on the federal

claims, concluding that Smith had failed to adduce sufficient

evidence to support a jury finding that Stratus's stated

reason for dismissing her was a pretext for discrimination.3

This appeal followed.

II. II.

Discussion Discussion

2. Title VII of the Civil Rights Act of 1964 provides in

relevant part:

It shall be an unlawful employment

practice for an employer--

(1) . . . to discharge any individual, or

otherwise to discriminate against any

individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex,

or national origin . . . .

42 U.S.C. 2000e-2(a).

3. The district court also ruled there was insufficient

evidence to proceed on Smith's claim under the Equal Pay Act.

Smith does not contest that ruling in this appeal. The

district court "remanded" Smith's state law claims to state

court pending the outcome of this appeal.

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Smith makes two arguments on appeal. First, she

argues that the district court misinterpreted the Supreme

Court's holding in St. Mary's Honor Center, Inc. v. Hicks,

113 S. Ct. 2742 (1993), when it required her to adduce

evidence that Stratus's stated reason for her dismissal was a

pretext for discrimination. Second, Smith argues that even

if the district court interpreted Hicks correctly, its grant

of summary judgment should nonetheless be reversed because

Smith introduced sufficient evidence to show that Stratus's

proffered reason for her dismissal was a pretext for

discrimination. We address each argument in turn.

A. The District Court's Interpretation of St. Mary's v.

Hicks

When a Title VII plaintiff is unable to offer

direct proof of her employer's discrimination -- as is

usually the case and was so here -- we allocate the burden of

producing evidence according to the now-familiar framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05 (1973). See Hicks, 113 S. Ct. at 2746. Under this

framework, the plaintiff bears the initial burden of

establishing a prima facie case of sex discrimination. She

must show that (1) she is a member of a protected class; (2)

she was performing her job at a level that rules out the

possibility that she was fired for inadequate job

performance; (3) she suffered an adverse job action by her

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employer; and (4) her employer sought a replacement for her

with roughly equivalent qualifications. Mesnick v. General

Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied,

112 S. Ct. 2965 (1992). If the plaintiff successfully bears

this relatively light burden,4 we presume that the employer

engaged in impermissible sex discrimination. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

If the employer articulates a legitimate, non-

discriminatory reason for its decision, however, the

presumption of discrimination vanishes, and the burden of

production shifts back to the plaintiff. The plaintiff must

4. Stratus argues that Smith failed to satisfy her prima

facie burden by not putting forth evidence sufficient to show

that she was qualified for the position, i.e., "`that [s]he

was doing [her] job well enough to rule out the possibility

that [s]he was fired for inadequate job performance, absolute

or relative.'" Menard v. First Sec. Serv. Corp., 848 F.2d

281, 285 (1st Cir. 1988) (quoting Loeb v. Textron, 600 F.2d

1003, 1012 (1st Cir. 1979)). Stratus argues that Smith's

evidence of her adequate performance, consisting primarily of

a dated performance evaluation, pay increases and stock

options, in no way rules out the possibility that she was

fired for performing inadequately at the time in question.

The plaintiff's prima facie burden in Title VII

cases, however, is "not onerous." Mesnick, 950 F.2d at 823

(1991). We have interpreted the prima facie requirement at

issue to mean that the plaintiff must put forth sufficient

evidence to "support an inference that [the plaintiff's] job

performance at the time of her discharge was adequate to meet

[the employer's] legitimate needs." Keisling v. Ser-Jobs For

Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994). In

Keisling, we held that a plaintiff's evidence of increased

responsibilities over time, positive feedback and pay

increases -- evidence similar to that adduced by Smith --

satisfied this element, even though the evidence did not

extend right up to the time of her discharge. We think that

Smith's evidence reasonably supports the same inference, and

thus we hold that she satisfied her prima facie burden.

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then introduce sufficient evidence to support two additional

findings: (1) that the employer's articulated reason for the

job action is a pretext, and (2) that the true reason is

discriminatory. Woods, 30 F.3d at 260. The plaintiff may

rely on the same evidence to prove both pretext and

discrimination, but the evidence must be sufficient for a

reasonable factfinder to infer that the employer's decision

was motivated by discriminatory animus. See Goldman, 985

F.2d at 1117-18.

Smith argues that under Hicks, a Title VII

plaintiff's burden in this final stage does not include

adducing evidence that an employer's true motivation was

discriminatory. In other words, Smith contends that a

factfinder presented with sufficient evidence of pretext but

no evidence of discrimination may always reasonably infer

that the employer's true motivation was discriminatory, and

that summary judgment against the plaintiff would therefore

be precluded in such circumstances. Thus, Smith asserts, the

district court's grant of summary judgment was improper

because a jury should have been permitted to infer from

Smith's evidence of pretext that the true reason for her

maltreatment was sex discrimination.

Smith's argument rests primarily on a passage from

Hicks in which the Court noted that "[t]he factfinder's

disbelief of the reasons put forward by the defendant

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(particularly if disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of the prima facie

case, suffice to show intentional discrimination." Hicks,

113 S. Ct. at 2749 (emphasis added). Our recent opinion in

Woods squarely addressed this issue, and we will not revisit

it at length here. As stated in Woods, we interpret the

above passage from Hicks as making clear

that the Supreme Court envisioned that

some cases exist where a prima facie case

and the disbelief of a pretext could

provide a strong enough inference of

actual discrimination to permit the fact-

finder to find for the plaintiff.

Conversely, we do not think that the

Supreme Court meant to say that such a

finding would always be permissible. . .

. The strength of the prima facie case

and the significance of the disbelieved

pretext will vary from case to case

depending on the circumstances. In

short, everything depends on the

individual facts.

Woods, 30 F.3d at 261 n.3. Thus, the district court

interpreted Hicks correctly when it ruled that, to survive

Stratus's summary judgment motion, Smith had to adduce

sufficient evidence to support a finding that Stratus's

stated reason was not only a pretext, but that it was a

pretext for illegal sex discrimination.

B. Smith's Evidence of Discrimination

Smith's second argument is that the district court

erred in ruling that she failed to introduce sufficient

evidence of Stratus's discriminatory animus. Upon review of

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the evidence, drawing all reasonable inferences in Smith's

favor, we agree with the district court.

Smith offers an abundance of evidence indicating

that Stratus found her performance more than satisfactory and

that, despite her concerns about working for Haroian, she

heard no substantial criticism of her performance until her

pre-vacation meeting with Haroian on June 12, 1991. Even if

we assume arguendo that this evidence is sufficient to

support a finding of pretext, it could not, standing alone,

possibly lead a reasonable jury to conclude that

discriminatory animus was the real motivation behind

Haroian's action. Title VII does not grant relief to a

plaintiff who has been discharged unfairly, even by the most

irrational of managers, unless the facts and circumstances

indicate that discriminatory animus was the reason for the

decision. See Mesnick, 950 F.2d at 825.

Smith does offer other evidence purporting to show

discriminatory animus. More specifically, Smith alleges that

Stratus's treatment of her differed from that of a number of

male vice-presidents, who, Smith claims, were bounced from

their jobs but were afforded a much softer landing than she

was offered. As we explain below, however, Smith's evidence

is wholly inadequate to support these allegations in any

relevant way.

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In a disparate treatment case, the plaintiff has

the burden of showing that she was treated differently from

"persons situated similarly `in all relevant aspects.'" The

Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st

Cir. 1989) (quoting Smith v. Monsanto Chemical Co., 770 F.2d

719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986))

(emphasis added); see also Burdine, 450 U.S. at 258 ("[I]t is

the plaintiff's task to demonstrate that similarly situated

employees were not treated equally"); Mack v. Great Atlantic

and Pacific Tea Co., 871 F.2d 179, 182 (1st Cir. 1989)

(affirming summary judgment where plaintiff failed to

demonstrate that "comparably credentialed" employees received

more favorable treatment). Thus, for us to compare Smith's

treatment with that of terminated or transferred male

executives in a meaningful way, Smith would have to show that

she was similarly situated to those men in terms of

performance, qualifications and conduct, "without such

differentiating or mitigating circumstances that would

distinguish" their situations. Mitchell v. Toledo Hosp., 964

F.2d 577, 583 (6th Cir. 1992). This she has utterly failed

to do.

First, Smith points to the treatment afforded

former Stratus vice-presidents Ray Hermo and Greg Sheard.

Freiburghouse testified in his deposition that, although he

knew nothing about the specifics of Hermo's and Sheard's

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situations, he knew that their supervisors had been

dissatisfied with their respective performances. Young

testified in his deposition that Hermo received a severance

package, and that he was "sure there were others" who

received such packages. Company records indicate that Sheard

continued to receive his annual salary of $126,000 for up to

nine months following his last day at the company.

Smith also points to Freiburghouse's deposition

testimony about Bill Murphy. According to Freiburghouse,

Murphy filled a number of positions at different times at the

company's request. Freiburghouse testified that Murphy,

after completing his assigned task of eliminating a division

of the company, was named vice-president of sales, North

America Division. When asked if the company created that

position for him, Freiburghouse testified that he did not

know. Smith asserts in her brief that this evidence showed

that Murphy "was removed from his position, and defendant

Stratus created a position for him."

Freiburghouse also testified that two other male

vice-presidents, Jim Austin and Alex Lupinetti, were demoted

twice to positions of lesser responsibility.

As further evidence of disparate treatment, Smith

points to the case of Bill Elliot, her predecessor as

marketing vice-president. Elliot became vice-president of

strategic planning, a position that Haroian described as "a

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high level individual contributor function," with only one

staff person working for him.

Smith's evidence fails to provide the factfinder

with a sufficient basis on which to conclude that she was

"similarly situated in all relevant aspects" to the male

vice-presidents she names. Other than Freiburghouse's

hearsay testimony that Sheard's and Hermo's supervisors were

"dissatisfied" in some unspecified manner, we know nothing

about the alleged performance problems of those two

individuals or the level of dissatisfaction of their

supervisors; as for the other four executives, there is no

indication that their job changes were due to poor

performance, nor would that be a permissible inference for a

jury to make on this scant record. Thus, this sketchy

evidence, lacking a sufficient foundation for a legally

relevant comparison of Smith and the male executives, cannot

support an inference that Smith's dismissal was motivated by

discriminatory animus.

Smith offers three additional snippets of evidence

to prove Stratus's discriminatory animus. First, Smith

points to Haroian's shrug in response to her question about

why she was being treated differently than a number of male

managers -- a tacit admission, she claims, of disparate

treatment. Next, Smith offers her recollection that Young

also asked Haroian why Smith was being treated differently

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than male vice-presidents and was told that Haroian simply

thought it better to sever Smith completely. Finally, Smith

points to Marciante's comment telling her not to worry since

her husband still had an income. Haroian's shrug cannot be

considered an admission of discrimination. First, in Smith's

deposition testimony, she stated that she named the

executives when she posed the question to Haroian -- not that

she asked him why she was being treated differently from

males. Thus, Haroian was not even being presented with an

accusation of gender discrimination when he shrugged.

Second, Haroian could have meant any number of things, or

nothing at all, by his shrug; we find the shrug, under these

circumstances, to be so ambiguous that it is not just "of

little probative force," Menard v. First Sec. Serv. Corp.,

848 F.2d at 288, but it is of absolutely no probative force

whatsoever.

We find little more probative value in Haroian's

statement to John Young. Even assuming that Young actually

asked Haroian why Smith was being treated differently than

male executives -- and not why she had not been offered

another position, as Smith's attorney suggests in a passage

from Young's deposition to which Smith specifically directed

our attention -- we fail to see how a reasonable jury could

infer from Haroian's answer any hint of discriminatory

animus.

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Finally, Marciante's comment lends itself to many

possible interpretations. Smith claims that the comment

smacks of gender bias, denigrates the importance of her

career and "suggests a `men's club' atmosphere in which women

executives are viewed as dilettantes." Brief of

Plaintiff/Appellant at 45. Even if we accept this far-

fetched interpretation of Marciante's comment, the fact

remains that Marciante was a mid-level Stratus manager who

did not participate in the decision to remove Smith from her

job. Smith's failure to adduce any evidence that Marciante

made or influenced the decision to remove Smith from her job

makes the comment irrelevant to the issue of discriminatory

animus. See Medina-Munoz, 896 F.2d at 10 ("The biases of one

who neither makes nor influences the challenged personnel

decision are not probative in an employment discrimination

case.").

In sum, we find nothing in Smith's evidence that

would permit a reasonable jury to infer that discriminatory

animus motivated Stratus to remove Smith from her job. Thus,

there is no genuine issue as to any material fact, and

Stratus is entitled to judgment as a matter of law. See

Woods, 30 F.3d at 259.

For the foregoing reasons, the district court's

grant of summary judgment is

AFFIRMED. AFFIRMED.

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