Petition for Writ of Certiorari — Eastman Kodak Co. v. Thomas

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OFFICE of HE fi cn,

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My Lil

Supreme Court of the Gnited States

OCTOBER TERM, 1999

EASTMAN KODAK COMPANY,

Petitioner,

MYRTLE THOMAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

PETITION FOR A WRIT OF CERTIORARI.

MICHAEL A. FITZHUGH

JON M. NELSON

FITZHUGH & ASSOCIATES

155 Federal Street

Suite 1700

Boston, Massachusetts 02110-1727

(617) 695-2330

* January 4, 2000

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

QUESTION PRESENTED

For the purposes of calculating the Title VII limitations

period, does an alleged “unlawful employment practice” un-

der that Statute’s section 5(e)(1) occur: (a) when the em-

ployee first knew or believed that her annual performance

appraisal scores were adversely affected by unlawful dis-

crimination; or (b) only when the employee suffers “concrete

harm” attributable to the allegedly discriminatory perform-

ance appraisals, when they are subsequently utilized in an

objective formula resulting in the employee being selected

for layoff.

PARTIES TO THE PROCEEDING

The appellant in the court of appeals (plaintiff in the dis-

trict court) was:

Ms. Myrtle Thomas

The appellee below (defendant in the district court) was:

Eastman Kodak Company

TABLE OF CONTENTS

QUES TIIIN PRISSRIEN A BORA ssicsshivectnccccdpacinbe th indbrddessucbbersteneies i

PARTIES TO THE PROCEEDING. .........scesessesesseseseeseneenenes 1

TABLE OF AU TERGRREL Te sesssiieccsssessacsdpiticonsbebocuaconeceeens IV

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STATUTORY PROVISIONS INVOLVED .............:ccsesseee 1

STATEMENT GR FERRY SINE siserinatasssescetasetonnetsaicixensighines 2

REASONS FOR GRANTING THE WRIT ..........ceeeseeeeeees 5

I. THE DECISION BELOW IS

DEMONSTRABLY WRONG AND

CONFLICTS WITH THIS COURT’S

PRCA INPAEE LUD. sckdinhinlintineninsesnrescaacvinnensescacees 7

A. The First Circuit’s Decision

Cannot Be Reconciled with That

Court’s Prior Precedents That

Correctly Interpret and Apply

Ricks, Evans and Lorance ...........0000000+ 16

ili

Il. THE NOTICE RULE FORMULATED

BY THE FIRST CIRCUIT STRIPS

AWAY ANY OF THE PROTECTIONS

AFFORDED TO AN EMPLOYER

UNDER THE CASE LAW THAT

EMBRACES SUCH A RULE ...........:0008 22

Il. EVEN IF THE THOMAS PANEL’S

NOTICE RULE IS APPLIED, THE

RECORD CONTAINS EVIDENCE

THAT BARS MS. THOMAS’ CLAIM ...... 25

A. The Notice Rule is Inherently

Confusing and Subject to

Misapplication, Because It

Unsuccessfully Attempts to

Distinguish Between the Consequences

of Discrimination Eschewed by Ricks,

and Instead Calls Them “Unrelated

Ne sscticcscarsccsacecdanctssnancsevesneteoesens 25

CONCLUSION .....ccccsccsscccsosssscescccscncssosscsccesessessssnnseossonsoses 29

PPPEINIIEX ccccivciccscosssccssossccsssscsstonesecnsoes follows conclusion

TABLE OF AUTHORITIES

CASES:

Chardon v. Fernandez,

454 USS. 6 (1981) (Der CUTIAM) ........cceeeeeeeeeeeseeeees 13

Colgan v. Fisher Scientific,

935 F.2d 1407 (1991) (en banc),

cert. denied, 502 U.S. 941 (1991) .... 10, 11n, 15, 21n

Crown, Cork & Seal Co. v. Parker,

RS Che Ca Sains ins cieniiinigiades 12

Delaware State College v. Ricks,

GED ULB TR CRED tnucenichbamicaicstreesntaiingsinens passim

Fernandez v. Chardon,

GOR Fe FOS CAM Ga EN ii saskcdshencincsvcseiscenans 12, 13

Jensen v. Frank,

es mw Liye il Sh Ai |) PEN eemeNerr aT 7 passim

Johnson v. General Electric Co.,

840 F.2d 132 (1st Cir.1988) ............... 4,5, 15, 16, 23

Johnson v. Railway Express Agency, Inc.,

WEE SE SRA TAD wrttet eich cht cdscnetsvacinniaeainleicin 12

Ka Nam Kuan vy. City of Chicago,

563 FS. 25S CDT. TPES) | on csccescpevsscincescscsvess 21

Lawton v. State Mut. Life Assur. Co. of America,

924 F.Supp. 331 (D.Mass.), aff'd,

BOE FBG B50 CEE SFI OD. sisticivciccchesissisdiensashiieis 18

Lorance v. AT&T Technologies,

ED AEs Fe CED kcthsisniceissationistenntanionla passim

Mohasco Corp. v. Silver,

GET Bi BT SAD) cnsercesnetintnceaagiis 11,12

Sabree v. United Brotherhood of Carpenters And

Joiners, 921 F.2d 396 (1st Cir.1990) oo. eeeeeees 18

Smith v. Secretary of the Navy,

O59 Fa TEED GDC ISOR isiciccacactesicnns 11n, 21

Stoller v. Marsh,

682 F.2d 971 (D.C. Cir.1982) .......... 6, 15, 23, 24, 25

Thomas v. Eastman Kodak Company,

18 F.Supp.2d 129 (D.Mass. 1998) ...............06 passim

Thomas v. Eastman Kodak Co..,

SES Foe 2e C10 CIF) icc indea passim

United Air Lines, Inc. v. Evans,

Pe Ri OOD CATIA visnistassintadansoacssccdiateiaionaal passim

Womack v. Shell Chemical,

514 F.Supp. 1062 (S.D.Ala. 1981) ..........cesceeeeeeee 21

Woolery v. Brady,

741 F.Supp. 667 (E.D.Mich. 1990) «0.0.0... 21, 24

Zipes v. Trans World Airlines, Inc.,

453 U.S. SES CED vicsisccrcescicscanescvintietetaaes 10, 28

STATUTES:

United States Code

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2B USA. 6 TPT vc ccchimi conan ]

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2B U.S. § TIGA iccisichercessstiesuicsaltiensera taint l

EBA SA. 4S cicsicnianinceiiiaaaaaaie 12

42 U.S.C. § ZOQUG, 68 GOB scccccetsiniiniscieonsnninn passim

42 US.C..F ZQQQO BD sisi vccsssansicersitndstctiaaaanaiiinns ]

42 U.S.C. 5 ZO GORA ED ovicss scctssisavonintoronanene 16, 22

MISCELLANEOUS:

Hitchcock, “Coherence Out of Chaos:

Interpreting Section 706(e) of Title VI,”

33 Bmoty LJ. (Fall 1966) csc een 12

PETITION FOR A WRIT OF CERTIORARI

Petitioner Eastman Kodak Company (“Kodak’’) respect-

fully petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the First Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a) is reported

at 183 F.3d 38 (1st Cir.1999). The order of the district court

(App. 54a) is reported at 18 F.Supp.2d 129 (D.Mass. 1998).

JURISDICTION

The district court had subject matter jurisdiction pursuant

to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 1331 and

1343(4). The court of appeals had subject matter jurisdiction

pursuant to 28 U.S.C. § 1291. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

The First Circuit Court of Appeals issued its opinion on

July 15, 1999. On July 29, 1999, the court of appeals granted

Kodak an extension up to August 30, 1999, to request en

banc review. Kodak’s timely filed petition for en banc re-

view was denied on October 6, 1999.

STATUTORY PROVISIONS INVOLVED

The relevant portions of Title VII, 42 U.S.C. § 2000e, et

seq., are reproduced at App. 122a.

STATEMENT OF THE CASE

At issue in this case is the holding of the United States

Court of Appeals for the First Circuit, that allegedly dis-

criminatory Performance Appraisal (“PA”) ratings from

1990, 1991 and 1992 were not actionable under Title VII un-

til they were used in 1993 as part of an admittedly nondis-

criminatory process to select approximately 100 employees

for layoff throughout North America, including the Respon-

dent. Even though the Respondent believed that her PA rat-

ings were motivated by racial animus at the time they were

given, and even though she did not receive a pay increase in

1990, the First Circuit held that the Title VII limitations pe-

riod did not begin to run until the PA scores resulted in “con-

crete, negative consequences,” meaning her subsequent lay-

off in 1993. Although Ms. Thomas filed her Title VII claim

more than 300 days after her last PA, the First Circuit held

that her ultimate layoff was the “unlawful employment prac-

tice” that determined the accrual date of her claim.

Plaintiff and Respondent, Myrtle Thomas, brought this Ti-

tle VI disparate treatment action against her former em-

ployer, Kodak, contending that her selection for layoff in

1993 was unlawfully motivated by her race. When Kodak

decided in 1993 to reduce its North American workforce, it

used a Performance Appraisal Ranking (“PAR”) process

which weighted the employee’s last three PA ratings accord-

ing to a formula. Based upon the application of this formula

to the numerical ratings from her 1990, 1991 and 1992 PAs,

Ms. Thomas was one of two people in her customer service

unit selected for termination.

After substantial discovery in the district court, Kodak

sought summary judgment. Although she had previously

contended that her selection for layoff under the PAR proc-

ess was motivated by discriminatory animus and that the

‘aL SAT tin a ARNG Gis sisstl en URE HORA EL et ed lds 0D

PAR process was itself a pretext for unlawful discrimination,

Ms. Thomas presented a new theory of her case in her oppo-

sition to Kodak’s motion. For the first time since the incep-

tion of the «ction, Ms. Thomas contended that she could

prove her Title VII claim by showing that her PA ratings

from 1990, 1991 and 1992 were unfairly low because the

person evaluating her was motivated by racial animus.

By way of a Supplemental Memorandum, Kodak con-

tended that this new theory was invalid, in that the 1990-

1992 PAs could not be used to prove that Ms. Thomas’ 1993

termination was discriminatory because they fell outside the

limitations period for bringing a Title VII claim. Although

disagreeing with Kodak’s position on this point, the district

court allowed Kodak’s motion, finding that Ms. Thomas

could not meet her burden of proving that she was the victim

of any unlawful discrimination. Thomas v. Eastman Kodak

Company, 18 F.Supp.2d 129 (D.Mass. 1998).

Ms. Thomas then filed an appeal, and the First Circuit

Court of Appeals reversed the district court’s judgment by an

order dated July 15, 1999. Thomas v. Eastman Kodak Co.,

183 F.3d 38 (1st Cir.1999). The First Circuit held that Ms.

Thomas could prove that Kodak’s method of selecting her

for layoff was the “unlawful employment practice” by show-

ing that her prior performance appraisals, all rendered be-

yond Title VII’s limitations period, were unfairly low be-

cause they were tainted by unlawful discrimination.’ That

court held that even if Ms. Thomas believed she had been

discriminated against at the time the PA ratings were given,

because she had not suffered any “concrete, tangible conse-

'The Thomas court also held that the district court erred in finding

that Ms. Thomas had failed to present sufficient evidence of discrimina-

tion to have her case decided by a trier of fact, and Kodak does not chal-

lenge that ruling herein.

quences” of the alleged discrimination until she was laid off,

her Title VII action did not accrue until Kodak utilized the

PAs to select her for layoff in 1993.

In reaching its decision, the Thomas court relied upon

Johnson v. General Electric Co., 840 F.2d 132, 134 (lst

Cir.1988), a case upholding a 12(b)(6) dismissal where the

plaintiff contended that “a review process was designed to

prevent the plaintiff from qualifying” for a promotion. Ulti-

mately, the crux of the Thomas court’s holding on the timeli-

ness issue was that:

A trier of fact could, but need not necessarily,

conclude that Thomas had notice of the ap-

praisals’ possible racial bias as soon as they

were presented to her. However, this fact

does not go to the relevant question under

Johnson's notice rule: whether Thomas had

notice of immediate, tangible consequences of

her poor scores. Kodak’s argument pertains

to notice of bias, rather than the notice of

harm required under Johnson. But notice of

bias alone, absent harm, is clearly not suffi-

cient under Johnson.

We hold that the performance appraisals

Thomas received in 1990, 1991 and 1992 did

not trigger the statute of limitations in

§ 2000e5(e)(1) at the time they were pre-

sented to Thomas, because they did not ini-

tially have any crystallized implications or

apparent tangible effects.

Thomas v. Eastman Kodak Company, supra, 183 F.3d at 55

(footnote omitted). Kodak sought en banc review because

SEE ADAMO ALTA A Ep BALL aft NPE ANAS

the Thomas panel’s ruling was error, being contrary to appli-

cable precedents of this Court and prior decisions of the First

Circuit, all of which make clear that the consequences of dis-

crimination do not constitute or affect the accrual date of a

Title VII cause of action under such circumstances. Kodak’s

Petition for Review en banc, ultimately denied, contended

that by ruling as it did, the Thomas court ignored the clear

distinction between an act of alleged discrimination (here,

the rendering of a “tainted” performance appraisal) and its

later consequences (Ms. Thomas’ layoff).

REASONS FOR GRANTING THE WRIT

This Court has consistently held that it is the date of the

allegedly discriminatory conduct — not the date that any

consequences of such conduct become most painful — that

triggers the running of the Title VII limitations period.

Delaware State College v. Ricks, 449 U.S. 250 (1980),

United Air Lines, Inc. v. Evans, 341 U.S. 553 (1977) and Lo-

rance v. AT&T Technologies, 490 U.S. 900 (1989). The

Thomas court erred in adopting a notice rule based upon

Johnson v. General Electric Co., supra, that allowed Ms.

Thomas to “reach back” and challenge her prior, time-barred,

performance evaluations as being tainted by unlawful dis-

crimination, even though she believed that she had been dis-

criminated against when they were rendered, but failed to act

at that time. The 7homas court’s holding — that a discrimi-

natory performance appraisal is not an “unlawful employ-

ment practice” that triggers the running of the limitations pe-

riod unless it had “tangible, concrete effects that were

apparent to the plaintiff’ — is manifestly wrong. It is well-

settled that Title VII’s limitations period begins to run from

the date of the “unlawful employment practice,” and not

from the date that any consequences are felt by an aggrieved

employee. Nevertheless, the First Circuit has added a re-

quirement that there be “concrete, negative consequences” of

the allegedly discriminatory conduct before the limitations

period will begin to run. This is in direct conflict with this

Court’s holdings in Ricks, Evans and Lorance, as well as the

First Circuit’s own previous decisions.

In essence, the First Circuit’s Thomas decision stands for

the proposition that there can be discrimination without any

corresponding harm, and multiple accrual dates for a Title

VII cause of action. This is contrary to the remedial purpose

of Title VI, and conflicts with this Court’s precedents and

decisions from other circuits, which all hold that it is the dis-

criminatory act, not the consequences of the act, that triggers

the limitations period. Because the 1990, 1991 and 1992 PAs

were given more than 300 days before the Respondent filed

her Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”), and because she be-

lieved at the time the PA ratings were given that they were

the product of discrimination, she cannot now “reach back”

and challenge her ratings.

In addition, Kodak relied on the PAs in good faith in se-

lecting Ms. Thomas for layoff. The Thomas decision de-

prives Kodak of the protections established by Stoller v.

Marsh, 682 F.2d 971 (D.C. Cir.1982), holding that an em-

ployer is not liable under Title VII for subsequently relying

in good faith on evaluations which were not previously chal-

lenged by the employee, even though the employer had in

place a process that enabled the employee to do so. Given

the Respondent’s failure to make use of Kodak’s “Open

Door” policy to challenge the offending ratings, Kodak was

therefore entitled to rely on the ratings in selecting Ms. Tho-

mas for layoff in 1993.

Finally, the record contains evidence that there were “tan-

gible, concrete consequences” of the 1990 PA, because Ms.

Thomas received no salary increase that year. Thus, even if

this standard is applied, her claim accrued then, and is now

barred. Moreover, this fact, and the First Circuit’s analysis

that it was an “unrelated harm” to her eventual layoff, dem-

onstrates that the 7homas court improperly designated what

Ricks would consider a “consequence” as an “unrelated

harm,” which Kodak contends exalts nomenclature over sub-

stance.

The Thomas court’s decision, if upheld, would trigger the

accrual of the limitations period only if the employee could

anticipate the precise degree of the adverse future conse-

quences of the alleged discrimination. This has never been

the proper method for determining the accrual date of Title

VII’s limitations period, because it depends upon the em-

ployee’s subjective appraisal of an inherently unpredictable

outcome. Thus, the Title VII limitations period is rendered a

nullity.

I, THE DECISION BELOW IS DEMONSTRABLY

WRONG AND CONFLICTS WITH THIS

COURT’S PRECEDENTS.

The Thomas court premised its ruling on the limitations

issue on its reading of three Supreme Court cases: Delaware

State College v. Ricks, 449 U.S. 250 (1980); United Air

Lines, Inc. v. Evans, 341 U.S. 553 (1977); and Lorance v.

AT&T Technologies, 490 U.S. 900 (1989). After a brief syn-

opsis of each of the cases, the Thomas court held that:

Read together, this trilogy defines a notice

rule: an employer action only triggers the run-

ning of the statute of limitations if that action

has concrete, negative consequences for an

employee and the employee is aware or

should have been aware of those conse-

quences.

Id., 183 F.3d at 49.

Implicit in this ruling is the notion that the “unlawful em-

ployment practice” was not the performance appraisals given

to Ms. Thomas, but rather, her ultimate layoff engendered by

those PAs’ scores under Kodak’s neutral and non-

discriminatory PAR process.” The Thomas court character-

ized her theory as being “that the PAR process was illegiti-

mate under Title VII in a derivative way, because its calcula-

tions were based on discriminatory appraisal scores.” Jd., 183

F.3d at 48 (emphasis supplied).

This reasoning cannot withstand a proper reading of the

Ricks, Evans and Lorance trilogy, which hold that the conse-

quences of discrimination cannot be the accrual date of Title

VIl’s limitations period. The Thomas court’s ruling, predi-

cated upon Ms. Thomas’ supposed ignorance of the “tangible

consequences” of the offending PAs, is irreconcilable with

the thrust of the Ricks, Evans and Lorance trilogy, which dis-

tinguishes an “unlawful employment practice” from the

“consequences” of discrimination.

In Ricks, a denial of tenure case, this Court addressed the

issue of the limitations period commencing on the date of a

discharge, and squarely rejects the Thomas court’s analysis:

? Both parties acknowledge that the PAR process was not itself a pre-

text for discrimination, nor formulated as a pretext. Thomas, 183 F.3d at

48. And see, 18 F.Supp.2d at 135.

In order for the limitations periods to com-

mence with the date of discharge, Ricks

would have had to allege and prove that the

manner in which his employment was termi-

nated differed discriminatorily from the man-

ner in which the College terminated other pro-

fessors who also had been denied tenure.

Congress has decided that time limitations pe-

riods commence with the date of the “alleged

unlawful employment practice.” See 42

U.S.C. § 2000e-5(e). Where, as here, the only

challenged employment practice occurs before

the termination date, the limitations periods

necessarily commence to run before that date.

Ricks, 449 U.S. at 258, 259 (footnote omitted). Thus, Ricks

expressly rejects the proposition advanced by the 7homas

court, that the limitations period is delayed because an

“unlawful employment practice” can occur “in a derivative

way” by a subsequent, non-discriminatory act such as Ko-

dak’s PAR process.

In Lorance, this Court discussed Ricks and Evans and

noted that:

We concluded [in Ricks] that “[t]he proper fo-

cus is upon the time of the discriminatory

acts, not upon the time at which the conse-

quences became most painful.”

Like Evans, petitioners in the present case

have asserted a claim that is wholly dependent

on discriminatory conduct occurring well out-

labor practice case.

Court noted:

side the period of limitations, and cannot

complain of a continuing violation.

Lorance, 490 U.S. at 907-08.

The Lorance Court was guided by its decision in Zipes v.

Trans World Airlines, Inc., 455 U.S. 385 (1982), an unfair

Discussing the impact of Zipes, this

We found, however, that “the entire founda-

tion of the unfair labor practice charged was

the Union’s time-barred lack of majority

status when the original collective-bargaining

agreement was signed,” and that “[{i]n the ab-

sence of that fact enforcement of this other-

wise valid union security clause was wholly

benign.” Jd., at 417. “[W]here a complaint

based upon that earlier event is time-barred,”

we reasoned, to permit the event itself “to

cloak with illegality that which was otherwise

lawful” “in effect results in reviving a legally

defunct unfair labor practice.” [citation omit-

ted] This analysis is squarely on point here.

Because the claimed invalidity of the facially

nondiscriminatory and neutrally applied tester

seniority system is wholly dependent upon the

alleged illegality of signing the underlying

agreement, it is the date of that signing which

governs the limitations period.

Lorance, 490 U.S. at 910-11.

A proper reading of the Ricks, Evans and Lorance trilogy

is found in the dissenting opinion of the Third Circuit case of

Colgan v. Fisher Scientific, 935 F.2d 1407, 1426-27 (1991)

a 5 a

(en banc), cert. denied, 502 U.S. 941 (1991)°. There, Judge

Cowen carefully analyzes the Ricks, Evans and Lorance tril-

ogy and cogently discusses three propositions directly on

point here: (1) the fact that Lorance expressly rejected the

notion of a mere possibility of harm as failing to trigger the

running of the statute of limitations (Jd., 935 F.2d at 1424-

25); (2) that an employee does have a cause of action for an

offending evaluation, even if the actual future consequences

are unknown (Jd. at 1426); and (3) that Ricks was the reversal

of a Third Circuit decision that had posited potential work-

place disruption as warranting a later accrual date, and thus

the Supreme Court had implicitly rejected this as a rationale

for clonding the accrual of the limitations period (/d., 1427-

28).

In Mohasco Corp. v. Silver, 447 U.S. 807 (1980), this

Court recounted the legislative history of Title VII and noted:

By choosing what are obviously quite short

deadlines, Congress clearly intended to en-

courage the prompt processing of all charges

of employment discrimination. .. . We must

* Kodak’s research in response to Ms. Thomas’ new theory disclosed

Colgan as the only apparently analogous case, which was disclosed to the

district court at oral argument. See, 18 F.Supp.2d at 133, n.5. The district

court and the First Circuit considered Colgan in their decisions, and it is

therefore given treatment here.

* This was one of the reasons offered by the Thomas court as warrant-

ing a later accrual date for the statute of limitations. Thomas, 183 F.3d at

51. However, this is inconsistent with case authority that holds Title VII

creates a cause of action for receipt of a biased employment evaluation

even if the employee could not demonstrate that the evaluation caused

him to be denied a promotion or a specific job. Smith v. Secretary of the

Navy, 659 F.2d 1113 (D.C. Cir.1981).

respect the compromise embodied in the

words chosen by Congress. It is not our place

simply to alter the balance struck by Congress

in procedural statutes by favoring one side or

the other in matters of statutory construction.

Id. at 826 (footnote omitted).

Indeed, one commentator has noted that the limitations

period was “designed both to guarantee ‘the protection of the

civil rights laws to those who promptly assert their rights and

to protect employers from the burden of defending claims

arising from employment decisions that are long past.”

Hitchcock, “Coherence Out of Chaos: Interpreting Section

706(e) of Title VII,” 33 Emory L.J. 1027, 1028-29 (Fall

1984), citing Delaware State College v. Ricks, supra, 449

U.S. at 258; and discussing Crown, Cork & Seal Co. v.

Parker, 462 U.S. 345, 352 (1983); United Air Lines, Inc. v.

Evans, 431 U.S. 553 (1977); Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 463-64 (1975).

Buttressing Kodak’s position is Fernandez vy. Chardon,

648 F.2d 765 (1st Cir.1981), where the plaintiffs were non-

tenured administrators with Puerto Rico’s Department of

Education who in June 1977 were notified by letter that they

would be demoted or terminated between June 30 and Au-

gust 8, 1977. In June of 1978, two of the employees filed

suit in federal court alleging violations of 42 U.S.C. § 1983.

The district court dismissed the actions because they were

not filed within the applicable statute of limitations.

The First Circuit reversed, holding that the cause of action

accrued on the date that the demotions and terminations

“took effect.” Jd., 648 F.2d at 767. The court distinguished

Ricks by stating that “[njo actual harm is done until the

threatened action is consummated. Until then, the act which

is the central focus of the plaintiffs’ claim remains incom-

plete.” Id. at 770.

This Court reversed the First Circuit’s holding sub nom

Chardon v. Fernandez, 454 U.S. 6 (1981) (per curiam).

Finding Ricks to be indistinguishable, the Court reiterated its

prior holding that the “proper focus” is on the time of the

discriminatory act, “not the point at which the consequences

of the act become painful.” Jd. at 8. “The fact of termination

is not itself an illegal act.” Jd.

In a dissent, Justice Brennan expressed a concern that

lawsuits should not be filed “until some concrete harm has

been suffered .. .”. Id. at 9. This is precisely what the 7ho-

mas court said in holding that Ms. Thomas’ claim did not

accrue until the allegedly discriminatory PAs were used as

part of the PAR process to select her for layoff, but is a

proposition squarely rejected by this Court.

Notwithstanding the acknowledgment that the PA process

was an integral tool used by Kodak to determine all manner

of actions affecting an employee such as Ms. Thomas, the

Thomas court nevertheless held that:

According to Kodak’s compensation plan, ap-

praisal scores were intended to affect salary

levels and determine “who should be pro-

moted, transferred, laid off, and _re-

employed.” It is not clear whether Kodak in-

formed employees of this intention. But even

if employees were familiar with the intended

possible uses of the scores, it appears that the

effects listed in the compensation plan re-

mained abstract — mere possibilities, not cer-

tainties.

But the appraisals did not specify that Thomas

was to suffer an immediate consequence for

her alleged performance failures, much less

that they would mechanically lead to her be-

ing laid off. Because Thomas seeks to re-

cover for an allegedly discriminatory layoff,

we consider whether that particular conse-

quence was apparent at the time Thomas re-

ceived the appraisals. . . . She was not told

that layoffs were impending and that her

scores placed her at a high risk of layoff.

Id., 138 F.3d at 54, 55 (emphasis supplied).

Given that nobody knew of the 1993 layoffs when Ms.

Thomas received her 1990-1992 PA scores, this reasoning is

inapposite to the proper inquiry: whether Ms. Thomas knew

or should have known that she had suffered unlawful dis-

crimination when she received the PAs. Furthermore, given

the First Circuit’s acknowledgment that the PAs’ purpose is

to determine “who should be promoted, transferred, de-

moted, terminated or laid off,” it is manifest that once she

received what she considered to be a PA tainted by discrimi-

nation, Ms. Thomas was “on notice” that she had a Title VII

claim. The 7homas court’s ruling and underlying reasoning

would only trigger the running of the limitations period if an

employee could subjectively appreciate and precisely predict

each and every likely possible future adverse consequence of

a discriminatory act. Applying this flawed reasoning to the

instant case, it would mean that because Ms. Thomas could

not have known the precise future date that the offending

PAs would or could cause her to be laid off, she had no rem-

edy under Title VII, nor any obligation to pursue a claim

within the 300 day limitations period after receipt of a PA

she believed tainted by discrimination. This has never been

the proper construction of Title VII’s limitations period, nor

this Court’s reasoning in prior cases.

The Thomas court then went on to formulate a “notice

rule” based upon a case analogous to the Colgan majority,

Johnson v. General Electric, 840 F.2d 132, 134 (1st Cir.

1988). Johnson was decided before Lorance, and thus is

suspect authority on this issue. Johnson was an appeal of a

Rule 12(b)(6) dismissal, and the Thomas court predicated its

notice standard on the following dictum:

Reading the complaint, as we must, as a

whole and in the light most favorable to the

plaintiff, we cannot say that he is not com-

plaining about the promotion denial in Febru-

ary in addition to the unfair review process in

the preceding summer. Even if the event in

February is in some sense a “consequence” of

the earlier discrimination, it is also alleged to

be an independent discriminatory act in and

of itself. The testers’ alleged discriminatory

animus becomes “background” material

“which might make the [subsequent] decision

[not to promote] discriminatory.” Stoller v.

Marsh, 682 F.2d 971, 978 (D.C. Cir.1982).

Johnson, 840 F.2d at 137 (emphasis supplied).

Contrary to the above rationale, Ms. Thomas’ prior PAs are

not being proffered as mere “background,” but are the direct

evidence of discrimination she seeks to use to prove her case.

Unlike the instant case where the PAR process is acknowl-

edged to be free from any unlawful discrimination (see foot-

note 2, supra), plaintiff in Johnson expressly contended that

“[T]his artificial process was racially motivated and biased

against him.” Jd. It was this allegation, which had to be ac-

cepted as true,” that enables Johnson to stand for the proposi-

tion that the subsequent use of a prior evaluation can be both

a consequence of prior discrimination, as well as an “inde-

pendent discriminatory act in and of itself.” Johnson is thus

inapposite to the instant case. Furthermore, even if Johnson

has vitality after Lorance, it cannot enable Ms. Thomas to

have two accrual dates for the limitations period — selecting

the one most convenient or strategically advantageous (even

years after the fact). The Thomas court necessarily and im-

plicitly embraced this flawed notion of multiple accrual

dates, by holding that her subsequent layoff was the “unlaw-

ful employment practice” under § 2000e-5(e)(1) that com-

menced the running of the limitations period for Ms. Tho-

mas’ claim. See 138 F.3d at 48. This ruling, and its

underlying reasoning, renders the limitations period mean-

ingless.

The First Circuit’s Decision Cannot Be

Reconciled with That Court’s Prior Prece-

dents That Correctly Interpret and Apply

Ricks, Evans and Lorance.

Following precedent set by this Court, the First Circuit

has consistently held that the consequences of discrimination

are not the focal point of the analysis for determining the ac-

crual of the limitations period. It is thus incongruous for the

Thomas court to adopt a standard that is even broader than

ever afforded a litigant who sought to relax Title VII’s ac-

crual date based upon the unknown consequences of a dis-

criminatory act by an employer. In Jensen v. Frank, 912

F.2d 517 (1st Cir.1990), the First Circuit rejected an em-

ployee’s serial violation claim based upon the employee’s

* Johnson was an appeal of a Rule 12(b)(6) dismissal.

purported inability to previously discover all of the facts that

would support the claim:

But, this argument is a mere heuristic, confus-

ing notice with evidence and overlooking the

very purpose of the administrative require-

ment that timely contact be made. Not know-

ing every detail of a suspected plot cannot ex-

cuse a discharged employee for sleeping upon

his rights.

Id., 912 F.2d at 521.

In response to the plaintiff's contention that the continu-

ing effects of the discrimination lingered, and thus enabled

the plaintiff to pursue a claim years after the alleged viola-

tion, the Jensen court stated:

It is beside the point that Jensen continued to

feel the effects of the firing in 1984 and be-

yond. In general, Title VII’s temporal restric-

tions are measured from the occurrence of a

triggering event; that the event’s sequelae lin-

ger does not coterminously extend the limita-

tion period. In the rather modest garden

where continuing violation jurisprudence may

lawfully flourish, courts must be careful to

differentiate between discriminatory acts and

the ongoing injuries which are the natural, if

bitter, fruit of such acts. See, e.g., Delaware

State College v. Ricks, 449 U.S. 250, 258, 101

S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (dis-

tinguishing between discriminatory denial of

tenure and the inevitable future loss of the do-

cent’s teaching position); United Air Lines,

Inc. v. Evans, 431 U.S. 553, 557-58, 97 S.Ct.

185, 188-89, 52 L.Ed.2d 571 (1977) (distin-

guishing between a past discriminatory dis-

charge and the present applitation of a non-

discriminatory seniority policy which gives

present effect to the past act).

Id., 912 F.2d at 523. See also, Sabree v. United Brotherhood

of Carpenters And Joiners, 921 F.2d 396, 400 (ist Cir.

1990); Lawton v. State Mut. Life Assur. Co. of America, 924

F.Supp. 331, 340 (D.Mass.), aff'd, 101 F.3d 218 (ist

Cir.1996). :

It is noteworthy that during oral argument on Kodak’s

motion for summary judgment, Ms. Thomas’ counsel ex-

pressly defended the theory of her case on the following ba-

sis:

When that performance appraisal was given to

the plaintiff, she had no information about

how other people were treated in their per-

formance appraisals. She had no idea that that

document would, or how it ever could, be

used as a consequence of her employment.°

The discriminatory act was firing her. It was

based upon the poison fruit that was put in

place years before in ’90, ’91 and ’92. The

fact that the paper trail started more than 300

days before does not prevent her from using

that paper trail.

° This statement is puzzling in light of the district court’s finding that

performance appraisals were used to “reward each individual’s job per-

formance appropriately” Thomas, 18 F.Supp.2d at 131, and as noted by

the First Circuit, for “determining who should be promoted, transferred,

demoted, terminated, laid off and re-employed.” Thomas, 138 F.3d at 54.

(App. 76a.) (Emphasis supplied and footnote added.) Thus,

Ms. Thomas’ “fruit of the poison tree” rationale has been ex-

pressly rejected by the First Circuit, and properly so because

it runs afoul of Jensen’s teaching that:

It can ordinarily be assumed “that many facts

will come to light after the date of an em-

ployee’s termination, and indeed one purpose

of a charge and a complaint is to initiate the

process of uncovering them. What matters is

whether, when and to what extent the plaintiff

was on inquiry notice.

Employers as well as employees are entitled

to procedural safeguards in the precincts pa-

trolled by Title VII. . . . The Court has taught

that “[p]rocedural requirements established by

Congress for gaining access to the federal

courts are not to be disregarded” even in sym-

pathetic circumstances. Baldwin County Wel-

come Center v. Brown, 466 U.S. 147, 152,

104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984)

(refusing to invoke equitable tolling in Title

VII case). Here, the circumstances are not

particularly sympathetic.

Id., 912 F.2d at 521-22.

Similarly, Ms. Thomas’ case for avoiding the statute of

limitations is equally unsympathetic. As noted by the district

court, Ms. Thomas refused to sign two of the three PAs at

issue. Thomas, 18 F.Supp.2d at 134, n.7. In her deposition,

she testified that her reason for not signing the 1992 PA was

“I did not feel that I was being fairly evaluated.” (App. at

97a). Furthermore, in her interrogatory responses, when

asked to set forth all unlawful discriminatory acts that were

committed against her, numerous pages of her responses are

devoted to a recitation of her supervisor’s transgressions, in-

cluding failing to give her fair PA scores. App. at 113a-

118a. Thus, contrary to the Thomas panel’s statement that a

“trier of fact could, but need not necessarily, conclude that

Thomas had notice of the appraisals’ possible bias,”’ Ms.

Thomas unequivocally states that she did believe that the

PAs were tainted by racial animus when rendered. She there-

fore must be charged with actual knowledge of a potential

Title VII claim, and at the very least, with “inquiry notice” as

required by Jensen.

In irreconcilable contrast to the “inquiry notice” estab-

lished by Ricks and affirmed in its own prior case law inter-

preting and applying decisions of this Court, the Thomas

court reasoned that:

The key is whether those evaluations had tan-

gible, concrete effects at the time they were

conducted. . . . If the evaluations did not have

tangible, concrete effects at the time, no claim

regarding discriminatory evaluations accrues.

Under the notice standard, no claim will ac-

crue until and unless the evaluations result in

a tangible injury.

Id., 138 F.3d at 50.

Kodak’s argument pertains to notice of bias

rather than notice of harm required under

” Thomas, 183 F.3d at 50.

Johnson. But notice of bias alone, absent

harm, is clearly not sufficient under Johnson:

Id., 138 F.3d at 55.

Not only is the notion of inquiry notice abandoned, but the

Thomas court ignores the fact that unlawful bias itself the

very harm that Title VII seeks to remedy. To take the posi-

tion that Title VII’s remedial purposes are not brought into

play until there are some “apparent consequences” or “crys-

tallized implications” turns the statute on its head.® This

Court has never given even “continuing violation” cases as

much latitude as the First Circuit would give the accrual pe-

riod, and employees can now take a “wait and see” approach

that enables them to fare better than they could under that

case law, which constituted for employees the most indulgent

construction of Title VII’s accrual date.

Furthermore, notwithstanding the First Circuit’s concerns

about “ripeness,” (138 F.3d at 50), Ms. Thomas did have a

Title VII cause of action for the PAs she believed were

tainted by discriminatory animus. See, Smith v. Sec’y of the

Navy, supra; see also, Womack v. Shell Chemical, 514

F.Supp. 1062, 1104-05 (S.D.Ala. 1981); Ka Nam Kuan v.

City of Chicago, 563 F.Supp. 255 (N.D.Ill. 1983); Woolery v.

Brady, 741 F.Supp. 667 (E.D.Mich. 1990). Under the notice

rule formulated by the Thomas court, there is no meaningful

distinction between an alleged discriminatory act and its ul-

timate consequences, and thus no time limit whatsoever is

placed upon the accrual of a claim by an employee who be-

lieves discrimination has occurred. The notice rule enunci-

ated by the First Circuit would require an employee to act

only when, and if, she or he subjectively appreciated and per-

* As Judge Cowen aptly noted in his dissenting opinion in Colgan, it is

incongruous to believe that discriminatory employee evaluations do not

constitute harm to an employee. Colgan, supra, 935 F.2d at 1426-27.

ceived the nature and degree of the precise future adverse

consequences that could result from the alleged discrimina-

tion.” This is simply contrary both to existing law and to

logic.

Thus, to consider the actual layoff, pursuant to an admit-

tedly non-discriminatory process, as the date of the “unlawful

employment practice” under § 2000e-5(e)(1) because it is

somehow on a “derivative” basis exalts nomenclature over

logic. The decisions of this Court and other courts of appeai

consistently counsel against the reasoning of the Thomas

court, and therefore the decision should be reversed.

Il. THE NOTICE RULE FORMULATED BY THE

FIRST CIRCUIT STRIPS AWAY ANY OF THE

PROTECTIONS AFFORDED TO AN

EMPLOYER UNDER THE CASE LAW THAT

EMBRACES SUCH A RULE.

The notice rule formulated by the First Circuit improperly

allows an employee to “reach back” for an indefinite period

and utilize stale evaluations that would be time barred, but

® Under the Thomas court’s notice rule, an employee could wait for

years before seeking a remedy for alleged discrimination. A review of the

plaintiff's complaint (App. 77a) demonstrates that this is not merely an

abstract possibility. The complaint alleged past violations of denial of

promotion opportunities (4 14) and unequal pay (4 15) during her tenure

at Kodak. Her demand for relief (4 23) seeks recovery for “including

without rotation, her termination . . . lost wages, [and] loss of income due

to denial of employment opportunities. . . .” Given the Thomas court’s

decision, the allegations of (] 14 and 15 are no longer merely back-

ground to her primary contention — subsequently abandoned — that the

PAR process was a pretext, because layoffs in other departments were

based upon seniority (J 19-21), but are now actionable, although clearly

occurring well outside of the applicable limitations period.

NE ON ee ey Te eS ee oe See

does not afford an employer any protection of good faith reli-

ance in the absence of any prior challenge by the employee.

The First Circuit’s notice rule was predicated upon Stoller v.

Marsh, 682 F.2d 971 (D.C. Cir.1982), a case relied on by the

Johnson court. As the First Circuit correctly notes, Stoller

held that “a plaintiff could challenge an employer’s wrongful

reliance on discriminatory evaluations, even where the plain-

tiff has acknowledged that the employer’s reliance itself was

not intentionally discriminatory.” Thomas, 183 F.3d at 52.

However, critical to Kodak is that Stoller also enunciated

a rule that afforded some protection to employers with an

established procedure affording an employee the opportunity

to challenge allegedly inaccurate materials or discriminatory

assessments of their performance:

If established procedures have given an em-

ployee a reasonable opportunity to inspect the

supervisory evaluations in his or her file, to

challenge allegedly inaccurate materials, and

to have such materials corrected or removed,

and if the organization gives its employees

adequate notice that these rights may be exer-

cised, then it may rely in good faith on such

evaluations in making subsequent employ-

ment decisions without violating Title VIL.

Stoller, supra, 682 F.2d at 979 (footnotes omitted).

As established in the record, Kodak has an “Open Door”

policy that allows any employee who feels mistreated for any

reason to seek redress. (Thomas, 183 F.3d at 52.) However,

Ms. Thomas never complained to her supervisors or to any

Human Resources representative about any of the statements

or conduct she now alleges to be discriminatory by way of

this action.'®

The First Circuit stated that “[W]e can imagine advan-

tages of the Stoller rule for both employers and employees”

(Thomas, 183 F.3d at 52), but then rejects this part of Stoller.

As a result, Kodak suffers the worst of both worlds: it re-

ceives no protection from its “Open Door” policy as a safe-

guard envisioned by Stoller'' and is then saddled with the

First Circuit’s relaxed accrual standard for limitations pur-

poses. Ms. Thomas gets to “have it both ways” because,

notwithstanding her apparent belief of alleged racial bias at

the time the PAs were rendered, she is not required to chal-

lenge them within the statutory period. She can wait until

some consequential act in the future to be the “trigger event”

for the accrual of the limitations period and file a suit that is

deemed timely. Other courts have wisely failed to allow this.

See, e.g., Woolery v. Brady, supra, 741 F.Supp. at 670 (dis-

cussing and apparently applying Stoller to bar a Title VI

claim by an employee who failed to challenge his evalua-

'° See, Thomas Deposition; App. 82a-86a; 90a-92a; 94a-11 1a.

''In dismissing Kodak’s argument that given the “Open Door” policy it

is victimized by Ms. Thomas’ ability to take a “wait and see” approach,

the First Circuit interpreted Kodak’s argument to seeking an analogue to

an ERISA “exhaustion requirement” (183 F.3d at 50-52), but this is sim-

ply inaccurate. Kodak argued for application of the well-settled “inquiry

notice” requirement as discussed in Jensen. See also, Ricks, 250 U.S. at

262 (“We recognize, of course, that the limitations periods should not

commence to run so soon that it becomes difficult for a layman to invoke

the protection of the civil rights statutes.”). Given that as early as 1990,

Ms. Thomas believed that racial animus had taint-d her PA scores, she

was on “inquiry notice” sufficient to require her to challenge her PA

scores when they were rendered. However, because she chose to do noth-

ing, then Kodak should have the protection established by Stoller.

tions, and was subsequently denied a promotion because of

his rankings).

By adopting a notice rule based upon Stoller v. Marsh but

jettisoning the “good faith” protection Stoller affords an em-

ployer with a mechanism such as Kodak’s “Open Door” pol-

icy, the First Circuit has rendered Title VII’s limitations pe-

riod meaningless. An empioyee can contend that an

evaluation rendered 10 or more years ago, that has later re-

sulted in some other adverse consequence, is “concrete, tan-

gible harm” constituting a present violation of Title VIL. The

Statute’s limitations period is vitiated, and employers have no

protection against stale claims by employees who have con-

sciously failed to pursue their rights.

lil. EVEN IF THE THOMAS PANEL’S NOTICE

RULE IS APPLIED, THE RECORD CONTAINS

EVIDENCE THAT BARS MS. THOMAS?’

CLAIM.

A. The Notice Rule is Inherently Confusing

and Subject to Misapplication, Because It

Unsuccessfully Attempts to Distinguish Be-

tween the Consequences of Discrimination

Eschewed by Ricks, and Instead Calls

Them “Unrelated Harms.”

As noted above, the record contains ample evidence that

Ms. Thomas believed she suffered discrimination when she

received her PAs from 1990-1992.'? The First Circuit held

'? Ms. Thomas testified at her deposition that she refused to sign her

1990 PA, because she disagreed with “the entire performance appraisal,”

Appendix at 91a, and “did not feel that she was being fairly evaluated” in

her 1992 PA (App. at 96a-97a.)

that this possible notice of bias is not dispositive because

“(Tjhe key is whether those evaluations had tangible, con-

crete effects at the time they were conducted.” Thomas, 183

F.3d at 50. However, even adopting this standard, Ms. Tho-

mas’ claim accrued in 1990 because in that same year she did

not receive a salary increase.'*

Thus, in applying its own standard, the First Circuit erred

in finding that “[t]he appraisals did not specify that Thomas

was to suffer an immediate consequence of her alleged per-

formance failures... .”” Thomas, 183 F.3d at 54; See also, id.,

at 50, n.8: “If, for example, a poor job evaluation resulted in

a denial of a salary increase, notice of the denial would mark

the accrual point for a pay inequity claim.” Therefore, on this

basis alone, the decision should be reversed.

Moreover, this reasoning demonstrates that the notice rule

adopted by the Thomas panel is simply unworkable, and ca-

pable of misapplication, because it improperly designates

various possible consequences of unlawful discrimination as

separate claims, and then attempts to classify them as “re-

lated” as opposed to “unrelated” harms:

Under Ricks, we must also consider whether

the appraisals led to any other concrete harm

for which the layoffs were the “delayed but

inevitable consequence.” Ricks, 449 U.S. at

257-58, 101 S.Ct. 498. We do not find any

evidence of such related harm in the record.

As noted above, it is not clear whether a sepa-

rate, unrelated harm would also trigger the ac-

'? Ms. Thomas confirmed this in her deposition testimony. /d. at 91a,

95a-96a.

crual of Thomas’s layoff claim. We need not

reach this question. Assuming arguendo that

unrelated harms would trigger accrual of

Thomas’s layoff claim, accrual was not trig-

gered here, because Thomas’s appraisals did

not in fact result in any tangible, concrete

harms at the time they were presented to her.

Although Thomas was denied some promo-

tion opportunities during Flannery’s tenure,

she was not told that she lost those opportuni-

ties because of her low performance apprais-

als; rather, Flannery told her she lacked the

proper credentials. Thomas was also not told

that her salary would be affected by her low

scores, and indeed, it appears that her salary

kept pace with the other five CSRs throughout

Flannery’s tenure as Customer Support Man-

ager.

Thomas, 183 F.3d at 55, n.9.

First of all, the Thomas panel fails to note the evidence in

the record based upon Ms. Thomas’ sworn deposition testi-

mony and interrogatory responses to the effect that she did

believe the PAs were tainted by racial animus. In addition,

the court apparently brushes aside Ms. Thomas’ failure to

obtain a salary increase in 1990. It implicitly accepts the no-

tion that in the obverse of the instant case, if Ms. Thomas

sued for an unlawful failure to afford her promotion opportu-

nities, she would not have a cause of action because she was

not told that her PA scores affected such opportunities. This

flies in the face of the acknowledged purpose of the PAs, the

reality of the modem workplace, and the established law un-

der Title VIL.

Furthermore, the Thomas court reads Ricks too narrowly

as requiring that the consequence necessarily be “inevitable”

in order for an employee to be required to take action. Evans

and Zipes, decided respectively before and after Ricks, do not

presuppose that “inevitability” of a consequence is determi-

native of the accrual of the limitations period. In both of

those cases, the later “consequences” were not known nor

capable of being known, and certainly not “inevitable.” Thus,

the Thomas court’s attempt to designate Ms. Thomas’ ulti-

mate layoff as an “unrelated harm” is analytically unsound,

because it presupposes that which Ricks squarely rejects —

that an “unrelated harm” is but another incantation of the

kind of “consequence,” inevitable or otherwise, that denies a

Title VII claimant another, later, accrual date. By denominat-

ing an “inevitable consequence” as an “unrelated harm,” and

classifying the latter as a separate claim allowing an em-

ployee to elect an accrual date years after being on “inquiry

notice” of discrimination, the Thomas panel runs afoul of this

Court’s settled law, and creates confusion in an area of the

law that needs clarity for all concerned — employers and

employees alike.

CONCLUSION

For all of the above reasons, the petition for writ of certio-

rari should be granted.

Respectfully submitted,

MICHAEL A. FITZHUGH

JON M. NELSON

FITZHUGH & ASSOCIATES

155 Federal Street

Suite 1700

Boston, Massachusetts 02110-1727

(617) 695-2330

January 4, 2000

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APPENDIX

TABLE OF CONTENTS

APPENDIX A

Thomas v. Eastman Kodak Company,

Be Pe PURE ESSE) crcsseccckacsvsncseceseistousscccee, la

APPENDIX B

Thomas v. Eastman Kodak Company,

18 F.Supp.2d 129 (D.Mass. 1998) wo...eecceccscecesee, 54a

APPENDIX C

Portion of transcript of oral argument .................. 75a

APPENDIX D

RUNNIN attest ic ae 77a

APPENDIX E

Portions of Thomas’ deposition transcript ........... 8la

APPENDIX F

Portions of Thomas’ answers to

BIER RS Regen eR Te 112a

APPENDIX G

42 U.S.C. § 20000-S(€)(1) ......cecscororsccecececerescesees 122a

APPENDIX A

[38] 183 FEDERAL REPORTER, 3d SERIES

183 F.3d 38 (1st Cir. 1999)

Myrtle THOMAS, Plaintiff, Appellant,

EASTMAN KODAK COMPANY,

Defendant, Appellee.

No. 98-2231.

United States Court of Appeals,

First Circuit.

Heard Nov. 3, 1998.

Decided July 15, 1999.

Former employee brought Title VII race discrimination

action against former employer. The United States District

Court for the District of Massachusetts, Arthur Garrity, Jr.,

J., 18 F.Supp.2d 129, granted former employer’s motion for

summary judgment. Former employee appealed. The Court

of Appeals, Lynch, Circuit Judge, held that: (1) action ac-

crued when employee received notice of layoff, not when

she received negative performance appraisals; (2) once em-

ployee has shown employer’s reason for adverse action is

pretextuai, employee is not always required to produce direct

evidence to demonstrate that employer’s real reason was dis-

criminatory; (3) District Court erroneously based entry of

summary judgment upon nondiscriminatory reason not ar-

ticulated by employer; and (4) employee met burden of

showing employer’s proffered reason for laying her off was

pretext for race discrimination.

Reversed and remanded.

[42] Marisa A. Campagna, with whom the Law Offices of

Marisa A. Campagna, Charles P. Wagner, and Silva & Wag-

ner were on brief, for appellant.

Michael A. Fitzhugh, with whom Jon M. Nelson and

Fitzhugh & Associates were on brief, for appellee.

Before Lynch, Circuit Judge, Bownes, Senior Circuit

Judge, and Lipez, Circuit Judge.

LYNCH, Circuit Judge.

In 1993, Myrtle Thomas, the only black Customer Service

Representative in Eastman Kodak’s Wellesley, Massachu-

setts office, was laid off. Thomas responded with a race dis-

crimination suit against Kodak under Title VII, 42 U.S.C.

§§ 2000e to e-17, arguing that Kodak’s layoff decision was

discriminatory because it resulted from a ranking process

that relied on racially biased performance appraisals pre-

pared in 1990, 1991, and 1992. Kodak made two arguments

in its motion for summary judgment: first, that Thomas’s

claim was time-barred because the performance appraisals

were conducted outside of Title VII’s statutory limitation

period, and second, that Thomas failed in any event to pre-

sent enough evidence of racial animus to support a disparate

treatment claim. The district court disagreed with the first

point but agreed with Kodak’s second argument and granted

summary, judgment. Both issues are before us on appeal.

Pe ee en ee ee ee 7

We hold that the date of the notice of the layoff is the date

from which the limitations period ran. Because the evalua-

tions caused no concrete harm until the layoff, we reject the

employer’s argument that, instead of the layoff date, the date

of the evaluations should be used as the start of the limita-

tions period. Because we also find that she has presented

enough evidence to support her claim that the performance

appraisals were racially biased, we reverse the district court’s

grant of summary judgment and remand for further proceed-

ings.

After thirty-five years of litigation under Title VII, cases

can still present new wrinkles. This is one such case. Be-

Cause it raises a number of important issues—some new and

some familiar but difficult—we preview the key holdings.

[1] First, when an employee claims that a layoff is dis-

criminatory and the employer utilizes scores from past pe,

formance appraisals in an objective formula to determine

who will be laid off, the limitations period runs from the date

of the notice of layoff where the laid off employee has suf-

fered no concrete earlier harm from the appraisals.

Second, once there is sufficient evidence to create a mate-

rial issue of fact that the employer’s articulated reason for an

adverse employment action is a pretext, there is no require-

ment that a plaintiff always produce direct evidence to

demonstrate that the real reason was discriminatory.

Third, Title VII’s prohibition against “disparate treatment

because of race” extends both to employer acts based on

conscious racial animus and to employer decisions that are

based on stereotyped thinking or other forms of less con-

scious bias.

OOOO ee

Fourth, under the McDonnell Douglas/Burdine frame-

work, a court may not enter summary judgment for an em-

ployer based upon a non-discriminatory reason not articu-

lated by the employer but identified sua sponte by the district

court.

In reviewing a grant of summary judgment, we consider

the facts in the light most favorable to the nonmoving party,

drawing all reasonable inferences in that party’s favor. See

Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir.

1998). Given the subtlety of the questions before [43] us, we

outline Thomas’s experiences at Kodak in some detail.

Thomas was a long-term Kodak employee. She first be-

gan working for the company in 1974. In 1980, after work-

ing for six years in clerical and administrative positions in

Kodak’s Rochester, New York facility, she was promoted to

Customer Support Representative (“CSR’’) within the Office

Imaging Division and transferred to Kodak’s office in

Wellesley, Massachusetts.

Along with five other CSRs working out of the Wellesley

office, Thomas supported customers in an assigned territory

who owned Kodak copiers and other Kodak equipment. She

helped salespeople perform installations, trained customers

in the use and maintenance of Kodak equipment, facilitated

communication between customers and sales and service

personnel, and provided other forms of marketing support.

Thomas generally performed her job well. Kodak manag-

ers who supervised Thomas during her first ten years as a

CSR in the Wellesley office reported variously that they

were never dissatisfied with her performance, that they were

“delighted” with Thomas, that her work was “excellent” and

“far superior” to that of some of the other CSRs, that she was

“very much on top of things,” and that she was “the perfect

support person.”

Co-workers and customers expressed similar sentiments.

A sales representative who worked with Thomas sent a

memorandum to Thomas’s supervisor praising her “continu-

ous professionalism,” “very high level of commitment,” and

“total dedication.” The sales representative later noted that

he was particularly impressed with the Way a certain cus-

tomer “really went out of his way” to emphasize his satisfac-

tion with Thomas’s support. Another customer who con-

tacted Kodak after Thomas’s layoff described Thomas as “an

irreplaceable part of the Kodak team” and explained that

Thomas was the primary reason for his selection of Kodak

copiers over copiers from other companies. The customer

concluded: “In my many contacts with company representa-

tives, I have not met anyone of the class and caliber of Myr-

tle Thomas.”

Because of her high level of performance, Thomas re-

ceived awards and bonuses from Kodak. In 1989, the com-

pany also changed Thomas’s grade from K4 to K6, which

resulted in a salary increase. According to Kodak’s job de-

scription, the K6 grade was limited to CSRs who were “mak-

ing an outstanding contribution to the support activities,” de-

fined as “servicing the largest and/or most. sensitive

accounts, developing and giving individualized presentations

and/or demonstrations, and training new CSRs.” Thomas re-

ceived at least eight other salary increases during her years

as a CSR. At the time of the 1993 layoff, Thomas was the

fourth most senior CSR in the Wellesley office and earned

the third highest salary.

The Kodak compensation plan stated that “[t]he com-

pany’s goal for [its] pay program is to reward each individ-

ual’s job performance appropriately’ and to ensure that

“{pjeople with higher performance will, over time, be paid

more than average performers.” The company made use of

annual performance appraisals in order to reach this goal.

According to the compensation plan, performance appraisais

were also used for a number of other purposes, including:

A. Evaluating and documenting the perform-

ance of each individual in comparison with

performance expectations for the job.

B. Providing individuals with constructive

feedback.

C. Identifying the guidance and training that

can help individuals be as successful as their

ability permits.

[and]

D. Determining who should be promoted,

transferred, demoted, terminated, laid off, and

re-employed.

[44] To conduct an appraisal, the supervisor who directed

an employee’s day-to-day activities filled out an appraisal

form. The form contained a section pertaining to “basic per-

formance measures,” which included categories for quality

of results, quantity of results, job skills, and teamwork. An-

other section pertained to “additional performance meas-

ures,” including dependability, versatility, communications,

and leadership. The form required the supervisor to give the

employee a rating from 1 to 7 for each applicable category,

as well as an overall rating.’ A separate section of the ap-

praisal form contained space for the supervisor’s comments

on the evaluated categories, a description of any develop-

mental opportunities, a description of matters discussed dur-

ing the post-appraisal interview with the employee, and both

supervisor and employee signatures. Each appraisal was also

reviewed and signed by the appraiser’s supervisor. The ap-

praiser and the appraiser’s supervisor were together respon-

sible for the appraisal’s accuracy, consistency, and confor-

mance to company policy, including a policy favoring fair

and objective evaluations, conducted “without regard to non-

job-related criteria such as[] race.”

Kodak intended the appraisal scores to be on a curve,

company-wide. The compensation plan suggested that “per-

formance appraisal ratings for large groups of people (ap-

proximately 100 or more) [should] average around the mid-

dle of the rating scale,” but acknowledged that factors such

as the amount of turnover and the percentage of long-term

employees could influence the distribution of ratings in any

given group, particularly groups with a small number of em-

ployees. The compensation plan suggested that appraisers

attempt to validate their distribution of appraisal ratings by

rank-ordering employees in the same grade and job category.

After the rank ordering was complete, supervisors would fi-

' The lowest rating was 1 (for performance that “does not meet essen-

tial job requirements”) and the highest was 7 (for performance that “far

exceeds requirements of the position”). The middle rating of 4 was con-

sidered appropriate “for individuals who regularly perform all assigned

responsibilities with independence and initiative, and achieve expected

results on a continual basis.”

nalize the preliminary ratings to agree with the rank-order

results. However, these rank orderings were not discussed

with employees. Supervisors were told that “[a]ppraisals

verified through this process [should be] communicated by

referencing performance relative to job expectations with no

reference to the rank-order process.”

Thomas’s appraisals for 1988 and 1989 show that she was

performing at a high level. In 1988, when she was responsi-

ble for more than 400 machines, Thomas received seven 5

ratings and one 6 rating, for an overall rating of 5, which was

a rating “appropriate for individuals who not only achieve

results and meet all expectations on a regular basis, but who

go beyond these requirements from time to time.” Her su-

pervisor’s comments were uniformly positive. In 1989, when

she was responsible for more than 500 machines, Thomas

received even higher ratings—five 6s and three 5s, for an

overall rating of 6, which meant that her “[p]erformance

consistently exceed[ed] the requirements of the position and

[was] characterized by unusual initiative, resourcefulness,

and creativity.” Once again, the supervisor’s comments were

uniformly positive.

In 1989, Kodak created the position of Customer Support

Manager throughout its Office Imaging organization. Tho-

mas asked to be considered for the Wellesley position, but

was told that she was not qualified. Instead, the position

went to Claire Flannery, a former CSR who had been work-

ing as a division secretary. As Customer Support Manager,

Flannery was responsible for supervising the six Wellesley

CSRs. She remained in this position until 1993, when both

she and Thomas [45] were laid off as part of a company-

wide reduction in force.

The appointment of Flannery as Customer Support Man-

ager marked a significant dowriturn in Thomas’s fortunes at

Kodak. Although Thomas states that she and Flannery “were

on a professional basis,” and Flannery denies having any

problems with Thomas’s job performance, it appears that

their working relationship was strained. Thomas alleges that

Flannery treated her differently from the other five CSRs, all

of whom were white’ (as were, in fact, all of the other CSRs

during Thomas’s thirteen years in the Wellesley office).

She describes a number of occasions on which she claims

Flannery unnecessarily damaged her professional standing

with customers. For example, on the only occasion on which

Flannery accompanied Thomas to a customer training ses-

sion in order to observe Thomas’s work, Flannery instead

took over the session and conducted the entire training her-

self. On another occasion, Flannery told Thomas the wrong

time for a training session Flannery had scheduled on site,

and then refused to write to the customer, who was upset, to

explain why Thomas had been several hours late. (After

Thomas proved to Flannery what had occurred by playing

back Flannery’s voice mail message to her, Flannery did

agree to call—but not to write—the customer.) On a third

occasion, Flannery became quite angry and attempted physi-

cally to block Thomas from leaving a CSR meeting which

had been scheduled at the same time as an important training

session for one of Thomas’s customers.

Thomas also provides evidence from which the inference

can be drawn that Flannery did not evaluate her skills fairly

or give her appropriate opportunities for growth and success.

For example, Flannery did not travel with Thomas as she did

2 We use the terms “black” and “white,” as Thomas has chosen this

terminology.

10a

with the other CSRs in order to observe Thomas’s interac-

tions with customers. Flannery did not give Thomas the

same type of developmental opportunities available to other

CSRs. She criticized Thomas for lack of computer skills, but

then failed to train Thomas when computer equipment be-

came available. After Thomas was asked to prepare a presen-

tation for a Kodak meeting, Flannery told her that there

would not be time for her presentation, although time was

found for a presentation by a white employee on a less press-

ing topic. Thomas was denied the opportunity to apply for

sales jobs, despite her good track record in sales support ac-

tivities. Flannery expressly discouraged her from applying

for a management position in another division, telling her

she was not qualified because she did not yet have a master’s

degree (Thomas was studying for one at the time), even

though none of the other managers in that position had a

master’s degree or even a bachelor’s degree. Finally,

Flannery went to great lengths to prevent Thomas from

meeting with Bill Cassidy, the Regional Vice President for

Office Imaging, to discuss advancement opportunities, and

became angry when Thomas nevertheless managed to sched-

ule an appointment.

Thomas’s most significant and concrete allegation is that

Flannery gave her inaccurately low scores on her annual per-

formance appraisals. For example, after receiving only 5s

and 6s in 1988 and 1989, Thomas received a 2, four 3s, and a

4 from Flannery in 1990, for an overall score of 3. This was

a below-average rating, appropriate for employees who had

“a need for further improvement to achieve a middle rating

[of 4]” or for employees “whose overall performance has

slipped from a higher level.” Thomas’s performance ap-

praisal scores in 1991 and 1992, while higher than her 1990

scores, were also inappropriately low, in Thomas’s estima-

lla

tion—especially when compared to the higher scores that

Flannery gave to other [46] CSRs. Thomas presents specific

comparisons, discussed further below.

Thomas was distressed by the 1990 performance appraisal

and refused to sign it. She also refused to sign the 1992 ap-

praisal, and signed her 1991 appraisal only “‘out of a joke,’

because it was a joke.” It is clear that Thomas disagreed with

Flannery’s evaluations; more than that—she found them “in-

sulting” and “shameful.” To the extent that it was possible

for her to compare salary and raises with other CSRs, how-

ever, she would not have noted any obvious effects of the

negative appraisals, since neither her salary nor the raises she

was given during Flannery’s tenure as Customer Support

Manager differed significantly from those of other employ-

ees. She did complain about the appraisals, both to Flannery

herself and to others within Kodak, including Bill Cassidy,

the Regional Vice President for Office Imaging, and Patti

Weissinger, a Human Resources Representative. However,

fearing retaliation from her new boss, she did not file a for-

mal charge against Flannery with the Human Resources De-

partment, and Kodak did not take any action in response to

her informal complaints.

In January 1993, Kodak decided to reduce the number of

employees in its Office Imaging Division. It selected em-

ployees for layoff using a “Performance Appraisal Ranking

Process (“PAR process”), which produced a numerical score

for each employee by adding together the employee’s overall

performance appraisal score for each of the three preceding

years, after weighting the most recent score by a factor of 25

and the second most recent score by a factor of 5.° Thomas’s

> This formula was used for employees whose grade remained the

same for all three years. If an employee had changed grades during the

12a

PAR ranking, which was derived from the three appraisals

conducted by Flannery, was the second lowest of the Welles-

ley CSRs. Since Kodak had decided to cut two Wellesley

CSR positions, as well as the Customer Support Manager

position, Flannery, Thomas, and the lowest ranked CSR (Ei-

leen Lavallee) were laid off in March 1993.

In July 1993, four months after her layoff, Thomas filed a

charge of race discrimination with the Equal Employment

Opportunity Commission. The EEOC issued a “right to sue”

letter in February 1996, and Thomas brought suit in May

1996.

Although her complaint asserts a variety of race

discrimination claims, Thomas has focused primarily on

Kodak’s 1993 decision to terminate her, arguing that this

decision was discriminatory because it was based on

discriminatory performance appraisals conducted by

Flannery from 1990 through 1992.* It is the layoff which is

the subject [47] of this appeal. Kodak moved for summary

three year period, the formula gave less weight to the score immediately

following the grade change.

* Thomas described a number of other events as evidence of unlawful

race discrimination by Kodak. The district court provided a succinct

summary:

When plaintiff was transferred to Wellesley, Kodak did not fly

her to Massachusetts, as it had other transferred employees. In-

stead, Thomas was told to drive a car that had been requested by

Richard Austin, her new supervisor. The car was in disrepair,

requiring a new muffler. Though other employees had two

weeks in a new location before reporting to work, plaintiff was

told to report right away. As part of plaintiff's move benefits,

13a

this appeal. Kodak moved for summary judgment, contend-

ing that Thomas’s claim was time-barred, and in the alterna-

tive, that she had failed to present enough evidence of racial

animus to reach a jury under the First Circuit’s standard for

showing disparate treatment once pretext has been shown.

See Udo v. Tomes, 54 F.3d 9, 12-13 (1st Cir.1995) (describ-

ing standard). The district court found Thomas’s claim

timely, but granted summary judgment to Kodak on the mer-

its argument. See Thomas v. Kodak, 18 F.Supp.2d 129, 133-

38 (D.Mass.1998). On appeal, Thomas argues that the dis-

trict court applied the standard incorrectly. Kodak defends

the district court’s application of the standard, while also

continuing to argue that Thomas’s claim is time-barred.

Kodak provided storage for her belongings. The warehouse

burned in 1981, destroying virtually all of Thomas’ belongings.

Thomas gave Austin an inventory of her losses; in response, he

asked, “Are you rich or something?” Before Thomas was reim-

bursed, another Kodak employee encouraged her to change her

inventory listing. Defendant did not reimburse Thomas for five

years. A few months after Thomas began working in Wellesley,

she was standing with a group of employees when Austin intro-

duced two visiting sales managers. Austin introduced everyone

in the group except Thomas. In 1983, Thomas passed a co-

worker in the hallway outside the department manager’s office.

The co-worker asked the manager if plaintiff was “here to do the

cleaning.” Thomas lost a gold bracelet at we-c. A co-worker

announced finding it just before a sales meeting, as other em-

ployees arrived. Thomas claimed the bracelet, and described it

at his request. He refused to return the bracelet until he had con-

firmed that it did not belong to another, white female employee.

Thomas v. Eastman Kodak Co., 18 F.Supp.2d 129, 132 (D.Mass.1998).

l4a

lil

We review the district court’s grant of summary judgment

de novo, see Lennon v. Rubin, 166 F.3d 6, 8 (1999), and will

find summary judgment appropriate if “the pleadings, depo-

sitions, 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).

{2, 3] We first address Kodak’s argument that the district

court erred in not dismissing the action as untimely. Title VII

requires aggrieved individuals to file a charge with the

EEOC “within one hundred and eighty days after the alleged

unlawful employment practice occurred.” 42 U.S.C.

§ 2000e-5(e)(1). In a “deferral jurisdiction,” such as Massa-

chusetts, this period is extended to three hundred days. See

* The full story is more complicated, in part because § 2000e-5(e) in-

teracts with § 2000e-5(c), which imposes a sixty-day waiting period be-

tween the filing of a charge with state or local authorities and the filing of

a charge with the EEOC:

[A] complainant in a deferral State . . . need only file his charge

within 240 days of the alleged discriminatory employment prac-

tice in order to insure that his federal rights will be preserved. If

a complainant files later than that (but not more than 300 days

after the practice complained of), his right to seek relief under

Title VII will nonetheless be preserved if the State happens to

complete its consideration of the charge prior to the 300-day pe-

riod.

15a

42 U.S.C. § 2000e-S(e)(1); Mohasco Corp. v. Silver, 447

U.S. 807, 814 n.16, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980);

Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181-82

(1st Cir.1989). This relatively short limitations period serves

important interests. “The limitations period{], while guaran-

teeing the protection of the civil rights laws to those who

promptly assert their rights, also protect[s] employers from

the burden of defending claims arising from employment

decisions that are long past.” Delaware State College v.

Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 66 L.Ed.2d 431

(1980). In the Title VII context, as in others, “the period al-

lowed for instituting suit inevitably reflects a value judgment

concerning the point at which the interests in favor of pro-

tecting valid claims are outweighed by the interests in pro-

hibiting the prosecution of stale ones.” Jd. at 259-60, 101

S.Ct. 498 (internal quotation marks omitted) (quoting John-

son v. Railway Express Agency, Inc., 421 U.S. (48) 454, 463-

64, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975)). Congress has

made that value judgment.

[4] However, Title VII’s statute of limitations is not self-

executing. The three hundred day (or one hundred and eighty

day) rule cannot be mechanically applied, because it is not

possible to pinpoint when the limitations period begins—

i.e., when the plaintiff's claim “accrues”—without first de-

termining the date, or the temporal boundary, of the “alleged

unlawful employment practice” referred to in § 2000e-

5(e)(1).

Mohasco Corp. v. Silver, 447 U.S. 807, 814 n.16, 100 S.Ct. 2486, 65

L.Ed.2d 532 (1980). None of these subtleties is relevant to the question

here, since, as the district court noted, “(p]laintiff filed her EEOC charge

within the minimum 180 days of her termination, but more than the

maximum 300 days after her most recent evaluation.” Thomas, 18

F.Supp.2d at 133 n.1.

l6a

The crux of Thomas’s claim is that her layoff is tainted

because the 1990-92 performance appraisals were tainted by

Flannery’s alleged racial bias. Thomas does not argue that

Kodak’s decision to utilize the PAR process to determine

who would be laid off was racially biased. See Thomas, 18

F.Supp.2d at 135 (“{P]laintiff does not contend that Kodak’s

. . . PAR layoff process[{] [was itself] discriminatory.”). As

we understand her argument, she does not allege that

Flannery and other Kodak employees participated in a con-

spiracy to oust her from her job because of her race, using

the performance appraisals and the PAR process as a thin

cover for this express discriminatory purpose. Rather, she

argues that the PAR process was illegitimate under Title VII

in a derivative way, because its calculations were based on

discriminatory appraisal scores. If racially biased scores

were plugged in to the PAR formula, she argues, then the

ranking that came out must also be biased.

According to Kodak, this argument can only mean that

the performance appraisals themselves constitute the “unlaw-

ful employment practice” at issue under § 2000e-5(e)(1), and

thus that any claim regarding the allegedly biased perform-

ance appraisals must have accrued at the time the appraisals

were conducted. Since even the most recent appraisal (pre-

sented to Thomas in May 1992) was conducted more than

three hundred days before Thomas filed her complaint with

the EEOC in July 1993, Kodak asserts that Thomas is pre-

cluded from questioning the racial neutrality of any of the

three performance appraisals. And without the ability to

challenge the appraisals upon which the PAR process was

based, Kodak notes, Thomas’s discriminatory termination

claim collapses.

17a

According to Thomas, the fact that the performance ap-

praisals were conducted more than three hundred days before

she filed her EEOC charge is irrelevant, because the adverse

employment decision that she is challenging—the “unlawful

employment practice” under § 2000e-5(e)(1)—is Kodak’s

decision to lay her off, and not the performance appraisals

independently, and this decision indisputably fell within the

statutory period.

Kodak’s general policy stance makes sense: given that the

central purpose of the statute of limitations is to protect em-

ployers from stale claims, it cannot be true that plaintiffs

have an unfettered ability to reach back and litigate biased

evaluations. Yet Thomas’s position is also reasonable, since

it seems unlikely that Title VII permits employers to take a

new employment action such as a layoff which first causes

an employee harm, as long as the allegedly discriminatory

evaluations on which the layoff is based were conducted

more than three hundred days earlier.

[5] Counsel did not call the court’s attention to any First

Circuit caselaw on this point. The district court, led to be-

lieve that the First Circuit had not addressed this question,

“look[ed] for guidance elsewhere.” Thomas, 18 F.Supp.2d at

133. The court focused on the decision of the Third Circuit

in Colgan v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir.),

cert. denied, 502 U.S. 941, 112 S.Ct. 379, 116 L.Ed.2d 330

(1991). The facts in Colgan do closely resemble the facts

here. Like Thomas, the Colgan plaintiff was fired after re-

ceiving a negative performance re- [48] view. See id. at

1410-11. He filed a charge of age discrimination with the

EEOC within three hundred days of his termination, but

more than three hundred days after the negative performance

review. See id. at 1411. The Third Circuit determined that

18a

Colgan’s claim was not time-barred because it accrued at

Colgan’s termination, not when he received the negative re-

view. See id. at 1415-21. The court concluded that “an al-

leged unlawful employment practice, here the performance

evaluation, must have inflicted harm which was or should

have been noticed, or it will not have triggered the limita-

tions period.” /d. at 1418. Colgan’s review stated that he

failed to meet job requirements and expressly warned that

action would be taken unless his performance improved. See

id. at 1410. Nonetheless, the court found that the review did

not produce the requisite notice of harm to trigger the run-

ning of the statute of limitations, because “[t]he performance

evaluation had no immediate consequence on Colgan’s em-

ployment, such as a loss of seniority, nor did it alert Colgan

to the possibility that consequences would flow from it with-

out an opportunity for him to improve his performance.” Jd.

at 1419-20.The Third Circuit based its Colgan analysis on a

trilogy of Supreme Court cases, which we summarize briefly

here. In United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct.

1885, 52 L.Ed.2d 571 (1977), the Supreme Court held that a

flight attendant who_was wrongfully forced to resign and

then later rehired could not challenge the airline’s refusal to

grant her seniority as if there had been no break in her em-

ployment, since the relevant wrongful act—Evans’s being

forced to resign—occurred outside of the limitations period.

See id. at 555, 97 S.Ct. 1885. In Ricks, the Court held that the

college’s denial of tenure, not a later discharge pursuant to

that denial, was the event that triggered Title VII’s statute of

limitations. See Ricks, 449 U.S. at 156-58, 101 S.Ct. 498.

Finally, in Lorance v. AT&T Technologies, 490 U.S. 900,

109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), the Court held that

the Title VII limitations period begins to run when an em-

19a

ployer adopts a seniority system, not when an employee is

demoted pursuant to that system.° See id. at 912-13. Read

together, this trilogy defines a notice rule: an employer ac-

tion only triggers the running of the statute of limitations if

that action has concrete, negative consequences for an em-

ployee, and the employee is aware or should have been

aware of those consequences. See Colgan, 935 F.2d at 1415-

21; see also 2 B. Lindemann & P. Grossman, Employment

Discrimination Law 1349 (3d ed. 1996) (observing that Su-

preme Court cases “seem to establish a relatively simple ‘no-

tice’ rule as to when discrimination ‘occurs’’’).

[6] We think many aspects of Colgan’s reasoning are cor-

rect. However, we find more direct guidance in a First Cir-

cuit case decided several years before Colgan. In Johnson v.

General Electric, 840 F.2d 132 (ist Cir.1988), a black em-

ployee claimed that he had been denied a promotion based

on a special review process that was intentionally designed

to prevent him from qualifying for promotion. See id. at 134.

The employer contended that the plaintiff's claim accrued

when the review process was first put into place, while the

plaintiff insisted that the clock did not start running on his

claim until he was informed that he had failed the review

process and would not be promoted. See id. The district

court, relying on Ricks, held that the establishment of the re-

* Section 112 of the 1991 Civil Rights Act later overruled Lorance,

allowing employees to challenge a seniority system “when the system is

adopted, when an individual becomes subject to the seniority system, or

when a person aggrieved is injured by the application of the seniority

system.” 1991 Civil Rights Act, Pub. L. No. 102-166, § 112, 105 Stat.

1071, 1079 (1991) (codified at 42 U.S.C. § 2000e-5(e)(2)). This may

mean that seniority systems should be treated as an exception to the “no-

tice rule” discussed in Colgan; alternatively, it may simply mean that

Congress thought that the Court had misapplied the notice rule in the

seniority system context.

20a

view process was the “unlawful employment practice” of

which the plaintiff complained, and therefore started the run-

ning of the statute from that point. See id. Although [50] this

court affirmed the dismissal on other grounds, it disagreed

with the district court’s analysis, noting that the “question

[is] . . . whether a claim accrues when an employee is made

subject to an... evaluation... , or when that. . . evaluation

is applied to deny the plaintiff particular benefits or posi-

tions.” /d. This court chose the latter rule, holding that the

notice standard is met and the statute of limitations is trig-

gered only if “the implications [of the evaluation] have crys-

tallized” and “some tangible effects of the discrimination

were apparent to the plaintiff,” i.¢., if “the plaintiff is aware

that he will in fact be injured by the challenged practice.”

Id. at 136-37.

The decision was motivated, in part, by concerns about

ripeness. The court noted that “it is far from clear whether

claims under Title VII and analogous statutes would be ripe

for adjudication until discriminatory systems [or evaluations]

were actually applied to plaintiffs in particular employment

decisions,” and observed that “[iJt is unwise to encourage

lawsuits before the injuries resulting from the violations are

delineated, or before it is even certain that injuries will occur

at all.” Jd. at 136.

Johnson's notice standard serves multiple functions. By

starting the limitations clock as soon as harm is noticed, or

should be noticed, the standard protects employers from stale

” Johnson, which was decided shortly before the Supreme Court's de-

cision in Lorance, suggested that this rule would apply to discriminatory

seniority systems as well. See Johnson, 840 F.2d at 134, Congress has

since provided a specific accrual rule for seniority systems. See 1991

Civil Rights Act § 112 (codified at 42 U.S.C. § 2000e-5(e)(2)).

2la

claims while also lessening the risk that employees will bring

unripe claims. The notice standard protects employees as

well, because it ensures that claims will not be foreclosed by

events that occurred outside the limitations period that did

not put the employees on notice.

[7-9] The notice standard in Johnson also resolves the ap-

parent contradiction between the two reasonable policy

stances pressed by the litigants here. Thomas is correct that

Title VII extends to a neutral employer decision-making

process that relies on discriminatory evaluations. But Kodak

is also right that employees do not have an unfettered night to

reach back to challenge previous evaluations. The key is

whether those evaluations had tangible, concrete effects at

the time they were conducted. If the evaluation did cause

tangible, concrete harm, the notice standard requires the in-

jured employee to promptly bring suit to recover for those

harms. Failure to do so will render any later claim regarding

those particular harms time-barred.*

* If, for example, a poor job evaluation resulted in a denial of a salary

increase, notice of the denial would mark the accrual point for a pay in-

equity claim. Under Ricks, the statute would also begin to run on any

other harm that was the “delayed, but inevitable, consequence” of the

denial of a salary increase, Ricks, 449 U.S. at 257-58, 101 S.Ct. 498,

since “[t]he proper focus is upon the time of the discriminatory acts, not

upon the time at which the consequences of the acts became most pain-

ful,” Ricks, 449 U.S. at 258, 101 S.Ct. 498 (internal quotation marks and

emphasis omitted) (alteration in original) (quoting Abramson v. Univer-

sity of Hawaii, $94 F.2d 202, 209 (9th Cir.1979)). Ricks did not address

the question whether the statute of limitations would also begin to run on

an unrelated harm (unrelated, that is, to the denial of a salary increase)

which might later arise from the challenged employer act—for example,

whether a plaintiff's challenge to a layoff decision based on the poor

evaluation could be time-barred because the evaluation initially resulted

22a

This means that an employer could be exposed to Title

VII liability for harms stemming from discriminatory evalua-

tions [51] some years after the evaluations were conducted,

if the evaluations first cause tangible harm to the employee

at that later point. Kodak argues that this puts employers in

an untenable position. We disagree, for three reasons.

First, as a matter of practicality, employers are unlikely to

rely on “stale” evaluations. The older the evaluation, the less

likely an employer would be to use that evaluation as the ba-

sis of an employment decision. Employers’ preference for

more recent evaluations is demonstrated dramatically by Ko-

dak’s own PAR formula, which used only the latest three

evaluations and then weighted the most recent by a factor of

25.

Second, the passage of time would affect employees as

well as employers. An employee who sought to challenge an

old evaluation would bear the burden of proving that the

evaluation was discriminatory—and the older the evaluation,

the more difficult that task would be.

{10} Third, the standard gives concomitant advantages to

employers. It avoids forcing employees to “run to the

EEOC” each time they disagree with a performance evalua-

tion. As the district court aptly observed:

If we apply the time bar to plaintiffs [performance

appraisals], then we require a given plaintiff to file

EEOC charges successively for each performance

evaluation, informal feedback from a supervisor, or

office rumor, so long as these events—even if non-

in the denial of a pay increase. As we explain below, the facts here do not

require us to resolve this difficult question.

23a

harmful in themselves—might be informed by racial

animus and could someday contribute to a later,

harmful result. This requirement would surely disrupt

the American workplace... .

Thomas, 18 F.Supp.2d at 134-35, Instead, the Johnson notice

standard allows employees to give employers the benefit of

the doubt, where employees suspect that an evaluation which

has yet to cause tangible harm might be tainted by bias, and

encourages them to try to solve the problem by proving their

actual worth to the employer. And while the standard places

an Ongoing obligation on employers to monitor their evalua-

tion processes to ensure that they are free from illegal bias,

employers also benefit from the opportunity to base person-

nel decisions on accurate, bias-free evaluations. In any event,

this sort of obligation is foreseen by Title VII, since the stat-

ute encourages the elimination of both obvious and subtle

forms of discrimination. See McDonnell Douglas Corp. vy.

Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973),

In arguing against the application of the Colgan rule

(which, as explained above, resembles the First Circuit stan-

dard announced in Johnson), Kodak has presented a two-

stranded argument. The first strand is based on notions of

fair notice to the employer. The second asserts that Thomas’s

timeliness argument relies on an impermissible combination

of the equitable tolling and continuing violation doctrines.

Kodak would substitute for the accrual rule in Johnson a

rule that focuses on notice to the employer. According to

Kodak, the Colgan accrual rule makes “bad law because it

allows an employee to introduce a time-barred incident

where the employee has never previously contended, even in

24a

an informal process afforded by the employer, that the em-

ployee was subjected to unlawful discrimination.” Appel-

lee’s Brief at 17, According to Kodak, this violates “the pol-

icy underlying Title VII [entitling] an employer . . . to some

kind of prior notice.” /d.

This is not an irrational position, but Kodak cites no au-

thority for it. The argument calis to mind the exhaustion rule

imposed by courts in the ERISA context, see Employee Re-

tirement Income Security Act, 29 U.S.C. §§ 1001 et seq.,

which requires employees to take full advantage of em-

ployer-internal appeals processes before bringing suit to re-

cover denied benefits, see McMahon v. Digital Equipment

Corp., 162 F.3d 28, 40 (1st Cir.1998) (noting court-imposed

exhaustion rule for [52] ERISA benefit claims). But the

analogy is inappropriate. ERISA requires employers to offer

employees a speedy appeals procedure for denied benefits.

See 29 U.S.C. § 1133 (stating that employers must “afford a

reasonable opportunity to any participant whose claim for

benefits has been denied for a full and fair review by the ap-

propriate named~ fiduciary of the decision denying the

claim”); 29 C.F.R. § 2560.503-1 (imposing time limits).

Only after this process is complete does the ERISA statute of

limitations begin to run. See, e.g., Godfrey v. BellSouth Tele-

comms., Inc., 89 F.3d 755, 759-60 (11th Cir.1996); Martin vy.

Construction Laborer’s Pension Trust, 947 F.2d 1381, 1385

(9th Cir.1991).

[11] In Title VII, by contrast, Congress chose not to im-

pose a particular employer-internal appeals procedure. Fur-

thermore, the statute of limitations for a Title VII claim is

not tolled while an employee exhausts any internal remedy

the employer has made available. See Ricks, 449 U.S. at 261,

101 S.Ct. 498 (“{T]he pendency of a grievance, or some

25a

other method of collateral review of an employment deci-

sion, does not toll the running of the limitations periods.”);

International Union of Elec. Workers v. Robbins & Myers,

Inc., 429 U.S. 229, 236-37, 97 S.Ct. 441, 50 L.Ed.2d 427

(1976) (holding that the Title VII statute of limitations is not

tolled by a collective-bargaining grievance procedure). Thus,

a court-imposed exhaustion requirement would not work

well in the Title VII context, because it would place employ-

ees in the position of having to exhaust an internal appeals

process of uncertain length while also bringing suit within

three hundred (or one hundred and eighty) days of the em-

ployer’s allegedly wrongful act.

Kodak’s position bears an even closer resemblance to one

aspect of the approach first explicated in Stoller v. Marsh,

682 F.2d 971 (D.C.Cir.1982), and followed by a number of

other courts, see, e.g., Hale v. Marsh, 808 F.2d 616, 620 (7th

Cir.1986); Brown v. City of New York, 869 F.Supp. 158, 169

(S.D.N.Y.1994); Woolery v. Brady, 741 F.Supp. 667, 669-70

(E.D.Mich.1990). The Stoller court held that a plaintiff could

challenge an employer’s wrongful reliance on discriminatory

evaluations, even where the plaintiff has acknowledged that

the employer’s reliance itself was not intentionally discrimi-

natory. See Stoller, 682 F.2d at 979 (“Otherwise an organiza-

tion could separate illegal motive from decisionmaking re-

sponsibility, contrary to the principle that Title VII applies to

the employer as an organization.”). This is essentially the

same result that Johnson permits. See Johnson, 840 F.2d at

135, 137 (citing this portion of Stoller).

But the Stoller court added a second part to this rule:

[A]fter preparation of employee evaluations, the em-

ploying organization may protect itself from Title VII

26a

liability by establishing procedures to allow employ-

ees to screen their personnel files and to remove

damaging, discriminatory information. . . . If estab-

lished procedures have given an employee a reason-

able opportunity to inspect the supervisory evalua-

tions in his or her file, to challenge allegedly

inaccurate materials, and to have such materials cor-

rected or removed, and if the organization gives its

employees adequate notice that these rights may be

exercised, then it may rely in good faith on such

evaluations in making subsequent employment deci-

sions without violating Title VII.

Stoller, 682 F.2d at 979 (footnotes omitted). Kodak’s “no-

tice to the employer” argument could refer to this second

half of the Stoller rule: Kodak apparently wants to be able to

rely on Thomas's performance appraisals, because in its

view Thomas had a reasonable opportunity to inspect the ap-

praisals and to challenge inaccuracies through the “Open

Door” appeals process.

We can imagine advantages of the Stoller rule for both

employers and employees, Employers, of course, would be

able to limit their liability. Employees could con- [53] ceiva-

bly benefit as well, if the rule increased the likelihood that

employers would implement effective review procedures.

But we decline to adopt this rule—which was, in any event,

implicitly rejected in Johnson—-because we think any possi-

ble advantages would be outweighed by two serious risks.

One is the obvious risk that employers would have carte

blanche to rely on discriminatory appraisals as long as they

offered their employees an “Open Door.” Avoiding the first

risk would entail a second: courts would need to interpret

strictly the concept of “[adequate] procedures to allow em-

27a

ployees to screen their personnel files and remove damaging,

discriminatory information.” This would in turn entail a de-

gree of judicial scrutiny and interference with day-to-day

employer operations that employers would be unlikely to

welcome and which courts interpreting Title VII have tried

to avoid. See Hidalgo v. Overseas Condado Ins. Agencies,

Inc., 120 F.3d 328, 337 (1st Cir.1997) (noting courts’ reluc-

tance to “‘sit as super personnel departments’” (quoting

Mesnick v. General Elec. Co., 950 F.2d 816, 825 (ist Cir.

1991))).

The second strand of Kodak’s timeliness argument is the

claim that both Thomas and the district court have relied on

an illegitimate “hybrid” of the equitable tolling and continu-

ing violation doctrines. Thomas disavows any such reliance.

We make several observations in response to Kodak’s argu-

ment.

[12] First, the First Circuit doctrine of equitable tolling is

simply inapplicable to these facts. Some courts permit tolling

of the statute of limitations if the plaintiff knew of a harm

but not of its discriminatory basis. See 2 Lindemann &

Grossman, supra, at 1350. But our approach to equitable

tolling is narrower, First Circuit law permits equitable tolling

only where the employer has actively misled the employee.

See Mack, 871 F.2d at 185 (noting that the First Circuit’s

“narrow view" of equitable tolling reaches only “active de-

ception” (internal quotation marks and citations omitted));

Jensen v. Frank, 912 F.2d 517, 521 (1st Cir.1990), There is

no allegation here that Kodak actively attempted to mislead

Thomas about her performance appraisals.

Second, there is no need to apply the continuing violation

doctrine. Commentators have labeled this doctrine “the most

28a

muddled area in all of employment discrimination law,” 2

Lindemann & Grossman, supra, at 1351, and some courts

have gone so far as to conclude that the entire doctrine is

misguided and unnecessary, see, e.g., Moskowitz v. Trustees

of Purdue Univ., 5 F.3d 279, 282 (7th Cir.1993), We need

not enter into that debate here. We describe the First Cir-

cuit’s continuing violation doctrine with only as much detail

as is necessary to show that it is inapplicable to Thomas’s

claim.

[13] The First Circuit has recognized two different types

of continuing violations: systemic violations, which “ha[ve]

[their] roots in a discriminatory policy or practice . . . [that]

itself continues into the limitation period,” DeNovellis v.

Shalala, 124 F.3d 298, 307 (\st Cir.1997) (quoting Jensen,

912 F.2d at 523), and serial violations, which are “composed

of a number of discriminatory acts emanating from the same

discriminatory animus, [with] each act constituting a sepa-

rate wrong actionable under Title VII,” id.; see also Mack,

871 F.2d at 182-84. The systemic violation doctrine is

clearly inapposite because Thomas has not alleged that Ko-

dak has “an overarching policy or practice” of conducting

discriminatory evaluations. Jensen, 912 F.2d at 523. Kodak

apparently believes that Thomas is inappropriately attempt-

ing to shoe-horn her claim into the serial violation category.

This is not so. Whether a serial violation exists does depend

in part on a type of notice standard similar to the one in

Johnson. See Sabree v. United Bhd. of Carpenters, Local No.

33, 921 F.2d 396, 402 (1st Cir.1990) (stating that if an earlier

event had “‘the degree of permanence which should trigger

an employee’s awareness and duty to as- [54] sert his or her

rights,’” then it is not substantially related to the later event,

and therefore cannot form part of a continuing violation

(quoting Berry v. Board of Supervisors of L.S.U., 715 F.2d

29a

971, 981 (Sth Cir.1983))). This similarity may be the source

of Kodak’s argument. But the serial violation doctrine, like

the systemic violation doctrine, stands as an exception to the

accrual rule recognized in Johnson. The purpose of this ex-

ception is to permit suit on later wrongs where a wrongdoer

would otherwise be able to repeat a wrongful act indefinitely

merely because the first instance of wrongdoing was not

timely challenged. See D. Laycock, Continuing Violations,

Disparate Impact in Compensation, and Other Title VII Is-

sues, 49 Law & Contemp, Probs. 53, 55 (1986) (comparing

the application of the continuing violation doctrine in em-

ployment discrimination cases to its application in an anti-

trust case, Hanover Shoe, Inc. v. United Shoe Machinery

Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968),

and observing that “[o]bviously, United should not be able to

continue its illegal conduct forever because no one chal-

lenged it during World War I”); J. MacAyeal, The Discovery

Rule and the Continuing Violation Doctrine as Exceptions to

the Statute of Limitations for Civil Environmental Penalty

Claims, 15 Va. Envtl. LJ. 589, 615-22 (1996) (describing

the history and purpose of the continuing violation doctrine);

see also Sabree, 921 F.2d at 401 (Ciscussing proper remedy),

In the Title VII context, the continuing violation doctrine

applies where “a number of discriminatory acts emanat[e]

from the same discriminatory animus, [with] each act consti-

tuting a separate wrong actionable under Title VII.” Jensen,

912 F.2d at 522. Sexual harassment, failure to promote, and

pay inequity cases often fall into this category. Plaintiffs in

these cases experience harm from each employer act (e.g., a

harassing comment, a denied promotion, or a smaller pay-

check), for which they could recover under Title VII. Thus,

under the Johnson standard, each act could trigger the run-

ning of the statute of limitations. The continuing violation

30a

doctrine ensures that these plaintiffs’ claims are not fore-

closed merely because the plaintiffs needed to see a pattern

of repeated acts before they realized that the individual acts

were discriminatory.

Thomas’s claim presents a different question: not whether

she is permitted to bring suit after many repeated harms, but

rather whether harm cognizable under Title VII existed at the

time she first received her performance appraisals, sufficient

to mean that the notice of layoff is not the date on which the

limitations period began for her layoff claim. This question

is more appropriately addressed under the Johnson notice

standard.

[14] We consider whether the date on which the limita-

tions period begins to run should be earlier than the notice of

layoff because there was earlier concrete harm to Thomas

resulting from the performance appraisals. According to Ko-

dak’s compensation plan, appraisal scores were intended to

affect salary levels and determine “who should be promoted,

transferred, demoted, terminated, laid off, and re-employed.”

It is not clear whether Kodak informed employees of this

intention. But even if employees were familiar with the in-

tended possible uses of the scores, it appears that the effects

listed in the compensation plan remained abstract—mere

possibilities, nct certainties.

[15] This was particularly true in Thomas’s case.

Flannery’s appraisals evaluated Thomas’s performance as

only average or below average. But the appraisals did not

specify that Thomas was to suffer an immediate consequence

for her alleged performance failures,” much [55] less that

* Under Ricks, we must also consider whether the appraisals led to

any other concrete harm for which the layoffs were the “delayed, but

3la

they would mechanically lead to her being laid off. Because

Thomas seeks to recover for an allegedly discriminatory lay-

off, we consider whether that particular consequence was

apparent at the time Thomas received the appraisals. Cf

Colgan, 935 F.2d at 1410, 1419-20 (finding notice lacking

even where an evaluation explicitly warned that adverse ac-

tions would be taken if the employee’s performance did not

improve). She was not told that layoffs were impending and

that her scores placed her at high risk for layoff.'° Even if

she did have this information, it would fall short of the “crys-

tallized” implications required under Johnson, 840 F.2d at

136, since being at risk for layoff (due to a low ranking rela-

inevitable, consequence.” Ricks, 449 U.S. at 257-58, 101 S.Ct. 498. We

do not find any evidence of such related harm in the record.

[55] As noted above, it is not clear whether a separate, unrelated harm

would also trigger the accrual of Thomas’s layoff claim. We need not

reach this question. Assuming arguendo that unrelated harms would trig-

ger accrual of Thomas's layoff claim, accrual was not triggered here,

because Thomas's appraisals did not in fact result in any tangible, con-

crete harms at the time they were presented to her. Although Thomas was"

denied some promotion opportunities during Flannery’s tenure, she was

not told that she lost those opportunities because of her low performance

appraisals; rather, Flannery told her she lacked the proper credentials.

Thomas was also not told that her salary would be affected by her low

scores, and indeed, it appears that her salary kept pace with the other five

CSRs throughout Flannery’s tenure as Customer Support Manager.

° The compensation plan instructed appraisers not to discuss apprais-

als in comparative terms, and appraisal scores were not openly discussed

among employees. Thus, Thomas had no way to discover this informa-

tion on her own. Although she knew that her scores were low in compari-

son to the scores she had received before Flannery became her supervi-

sor, she could not know that they were low in comparison to the scores of

other CSRs whom Flannery was evaluating.

32a

tive to other employees) and actually being selected for lay-

off are two quite different things.

Kodak emphasizes the fact that Thomas refused te sign

two of the three performance appraisals. According to Ko-

dak, her refusal to sign “demonstrates that she was dissatis-

fied with [the appraisals] for some reason” and makes it

“evident that she then believed she had been treated un-

fairly.” Appellee’s Brief at 18 n.6. A trier of fact could, but

need not necessarily, conclude that Thomas had notice of the

appraisals’ possible racial bias as soon as they were pre-

sented to her. However, this fact does not go to the relevant

question under Johnson’s notice rule: whether Thomas had

notice of immediate, tangible consequences of her poor

scores. Kodak’s argument pertains to notice of bias rather

than the notice of harm required under Johnson. But notice

of bias alone, absent harm, is clearly not sufficient under

Johnson. ''

We hold that the performance appraisals Thomas received

in 1990, 1991, and 1992 did not trigger the statute of limita-

'' Our analysis of the notice-of-harm issue might be different in the

context of a hostile environment claim. In that context, we might find

that Thomas's low appraisal scores caused some tangible harm as soon as

they were presented to her, since Thomas reportedly found the low scores

to be “insulting” and “shameful” (and demonstrated this by refusing to

sign them). But pinpointing the moment of accrual for a hostile environ-

ment claim is a different problem altogether than the one here, since a

certain accumulation of discriminatory events or situations is necessary

before an employee is expected—or permitted—to bring a hostile envi-

ronment suit. See Provencher v. CVS Pharmacy, 145 F.3d 5, 14-15 (ist

Cir.1998) (noting that in some cifcumstances a plaintiff may be “unable

to appreciate that he is being discriminated against until he has lived

through a series of acts and is thereby able to perceive the overall dis-

criminatory pattern” (internal quotation marks omitted)).

33a

tions in § 2000e-5(e)(1) at the time they were presented to

Thomas, because they did not initially have any crystallized

implications or apparent tangible effects. The notice of the

layoff is the date on which the limitations period began to

run because Thomas’s low appraisal scores first resulted in

concrete injury in 1993 when they led to her layoff. Since

Thomas filed a charge with the EEOC within one hundred

and eighty days of her layoff (the shortest possible period

imposed under § 2000e- 5(e)(1 )), her claim is timely.

[56] [16, 17] The second question on appeal is whether a

reasonable jury could find, based on Thomas’s evidence, that

Flannery discriminated against Thomas because of her race

when she assigned Thomas’s performance appraisal scores.

See 42 U.S.C. § 2000e-2(a)(1). To reach an answer, we fol-

low the three stages of the “familiar burden-shifting frame-

work,” Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 673

(1st Cir.1996), that was first outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973), and further explained in Texas Department of Com-

munity Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67b

L.Ed.2d 207 (1981). The three stages can be summarized as

follows:

First, the plaintiff[] must establish a prima facie case

that [plaintiff] (1) was within a protected Class; (2)

met [the employer’s] legitimate performance expecta-

tions; (3) was adversely affected; and (4) was re-

placed by another with similar skills and qualifica-

tions. Once [plaintiff] dof{es] so, the burden shifts to

[the employer] to produce a valid and nondiscrimina-

tory reason for the dismissal. In the final Stage, the

burden shifts back to the plaintiff[] to show that [the

34a

employer’s] stated reason for [plaintiff's] dismissal

was false and but a pretext for discrimination.

Mulero-Rodriguez, 98 F.3d at 673 (citations omitted).

[18, 19] We focus particularly on the final stage of the

McDonnell Douglas/Burdine framework, because we agree

with the district court’s careful analysis of the first two

stages. See Thomas, 18 F.Supp.2d at 135. Thomas has estab-

lished a prima facie case of discrimination by showing that

she is a member of a protected class who met Kodak’s le-

gitimate performance expectations and was laid off, while

Kodak retained persons outside the protected class. See id.

This created a presumption that Kodak unlawfully discrimi-

nated against her. See St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (cit-

ing Burdine, 450 U.S. at 254, 101 S.Ct. 1089). To counter

this" presumption, Kodak must “articulate some legitimate,

nondiscriminatory reason” for its action, McDonnell Doug-

las, 411 U.S. at 802, 93 S.Ct. 1817, that is, allege “reasons

for its action which, if believed by the trier of fact, would

support a finding that unlawful discrimination was not the

cause of the employment action,” Hicks, 509 U.S. at 507,

113 S.Ct. 2742 (citing Burdine, 450 U.S. at 254-55, 101

S.Ct. 1089). At this second stage, the framework imposes on

the defendant only a burden of production. The burden of

persuasion remains at all times with the plaintiff. See id. at

508 (citing Burdine, 450 U.S. at 256, 101 S.Ct. 1089). Kodak

met its burden of production—and eliminated the presump-

tion that it had discriminated—by contending that its layoff

decision was based solely on racially neutral performance

appraisal scores. See Thomas, 18 F.Supp.2d at 135.

35a

At the third stage of the McDonnell Douglas/Burdine

framework, the ultimate burden is on the plaintiff to per-

suade the trier of fact that she has been treated differently

because of her race. See Hidalgo, 120 F.3d at 335. This bur-

den is often broken into two separate tasks. The plaintiff

must present sufficient evidence to show both that “the em-

ployer’s articulated reason for laying off the plaintiff is a

pretext” and that “the true reason is discriminatory.” Udo y.

Tomes, 54 F.3d 9, 13 (ist Cir.1995) (citing Smith v. Stratus

Computer, Inc., 40 F.3d 11, 16 (ist Cir.1994)). For exposi-

tory convenience, this court has sometimes labeled these two

findings “pretext” and “plus” and has referred to the First

Circuit rule as a “pretext-plus” standard. See, e.g., Mullin v.

Raytheon Co., 164 F.3d 696, 699 (1st Cir.1999) (describing

the difference between the “federal ‘pretext-plus’ standard

and the Massachusetts ‘pretext-only’ standard”); Dichner vy.

Liberty Travel, 141 [57] F.3d 24, 30 (1st Cir.1998) (describ-

ing the ““‘pretext plus’ approach”).

Applying this standard, the district court found that Tho-

mas had met the first part of her burden. It determined that a

jury could find that the appraisal scores were objectively un-

fair or in some sense skewed against Thomas. Accordingly,

the court found that “[bJased only on the evidence presented

so far, a reasonable fact finder could determine that

Flannery’s reasons for lowering plaintiff's [performance ap-

praisal] ratings were pretextual.” Thomas, 18 F.Supp.2d at

137. As explained below, we agree.

But the court also found that Thomas did not meet the

second, “plus” part of her burden: she failed to present evi-

dence to create a genuine issue of fact about whether the al-

legedly unfair scores were due to her race and not some other

factor. See id. at 137-38. The court compared the evidence

36a

presented by Thomas, which in the court’s view amounted

only to evidence of “an unwelcoming office environment,”

“conspicuously unfair treatment” by Flannery, and “a per-

sonality conflict between Flannery and plaintiff,” id., with

the evidence presented by plaintiffs in other First Circuit

cases in which plaintiffs had survived summary judgment:

In all of these cases, the plaintiff alleged at least one

piece of evidence that explicitly referred to plaintiff's

membership in a protected class, and stated or im-

plied that this membership was or would soon ad-

versely affect plaintiffs employment prospects. By

contrast, in cases where plaintiff fails to make any

connection between adverse employment actions and

membership in a protected class, summary judgment

is granted to the employer, and judgment is affirmed.

Id. at 138. The court granted summary judgment to Kodak

because it found that Thomas had failed to “make any con-

nection” between Flannery’s actions and her own member-

ship in a protected class. /d. In particular, the court found

that Thomas failed to present any evidence that Flannery had

expressly linked the low scores to Thomas’s race and that

Thomas’s evidence of pretext was not “flagrant” enough to

support a finding of discrimination on its own. Jd. (emphasis

added).

The district court’s analysis mischaracterizes the plain-

tiffs burden at the third stage of the McDonnell Doug-

las/Burdine framework. To clarify the actual nature of that

burden, we make a number of points.

[20] First, the labels “pretext” and “plus” must be used

with great care. Although it uses the label “plus,” the First

‘ 37a

Circuit’s “pretext-plus” standard “does not necessarily re-

quire the introduction of additional evidence” beyond that

required to show “pretext,” 1.e., evidence showing that the

employer’s articulated reason is false. Dichner, 141 F.3d at

30. Plaintiffs may use the same evidence to support both

conclusions, “provided that the evidence is adequate to en-

able a rational factfinder reasonably to infer that unlawful

discrimination was a determinative factor in the adverse em-

ployment action.” Rodriguez-Cuervos v. Wal-Mart Stores,

Inc., 181 F.3d 15, 22 n. 5 (Ist Cir.1999); see also Udo, 54

F.3d at 13.

[21] A corollary is that there can be no mechanical for-

mula at the third stage of the McDonnell Douglas/Burdine

framework. “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 v. Friction Materi-

als, Inc., 30 F.3d 255, 260 n. 3 (1st Cir.1994). Other circuits

have highlighted the same point: “The sufficiency of the

finding of pretext to support a finding of discrimination de-

pends on the circumstances of the case.” Fisher y, Vassar

College, 114 F.3d 1332, 1338 (2d Cir.1997). Moreover, “it is

difficult, if not impossible, to say in any concise or generic

way under what precise circumstances . . . an inference fof

discrimination from a showing of pretext] will be inappro-

priate.” Aka v. Washington Hosp. Ctr., 156 F.3d [58] 1284,

1294 (D.C.Cir.1998). Because discrimination, and discrimi-

nation cases, come in many different forms, a case-by-case

analysis is always necessary. There can be no rigid require-

ment that plaintiffs introduce a separate “plus” factor, such

as a negative employer comment about the plaintiff's pro-

tected class, in order to prove discrimination. Otherwise, the

McDonnell Douglas/Burdine framework would no longer

38a

serve the purpose for which it was designed: allowing plain-

tiffs to prove discrimination by circumstantial evidence.'?

See Smith v. F.W. Morse & Co., 76 F.3d 413, 420-21 (1st

Cir.1996).

Our second point is related. That “everything depends on

the individual facts” means we need to look carefully at the

particular type of claim that Thomas is bringing. As we

understand Thomas’s argument, she alleges a more subtle

type of disparate treatment than the type often used to

exemplify the operation of the McDonnell Douglas/Burdine

framework. She does not argue that Kodak has articulated a

false reason for her layoff (for example, excessive tardiness)

in order to disguise the actual, unrelated reason (her race)—

what one might describe as a “truth versus lies” claim—

rather, she challenges the racial neutrality of the proffered

reason itself. The latter type of challenge is also cognizable

as a form of disparate treatment: if an employer evaluates

employees of one race less favorably than employees of

another race who have performed equivalently, and if race,

rather than some other factor, is the basis for the difference

in evaluations, then the disfavored employees have been

subjected to “discriminat[ion] . . . because of . . . race.” §

2000e-2(a)(1).

[22] The “pretext-plus” label may seem inapposite for this

type of claim, since the word “pretext” could suggest a con-

scious lie. But issues of pretext should not be confused with

the issue of whether there has been discrimination “because

of race.” As the Supreme Court has used the term “pretext,”

'2 This method of proving a Title VII claim is all the more important

now than it was when McDonnell Douglas was written, since “smoking

gun” evidence is “rarely found in today’s sophisticated employment

world.” Hodgens v. General Dynamic Corp., 144 F.3d 151, 171 n. 8 (Ist

Cir.1998).

39a

the term provides “no justification for assuming .. . that

those employers whose evidence is disbelieved are perjurers

and liars.” Hicks, 509 U.S. at 520, 113 S.Ct. 2742. Accord-

ing to the Hicks Court, “[t]o say that the company which in

good faith introduces such testimony, or even the testifying

employee himself, becomes a liar and a perjurer when the

testimony is not believed, is nothing short of absurd.” /d. at

520-21, 113 S.Ct. 2742. The ultimate question is whether the

employee has been treated disparately “because of race.”

This is so regardless of whether the employer consciously

intended to base the evaluations on race, or simply did so

because of unthinking stereotypes or bias. See Robinson vy.

Polaroid Corp., 732 F.2d 1010, 1015 (Ist Cir.1984) (noting

that plaintiffs in a disparate treatment case can challenge

“subjective evaluations which could easily mask covert or

unconscious race discrimination on the part of predominantly

white managers”); Sweeney v. Board of Trustees of Keene

State College, 569 F.2d 169, 179 (Ist Cir.) (permitting a

challenge to a decision process in which “bias may often be

unconscious and unexpressed”), vacated on other grounds,

439 U.S. 24, 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), aff'd

after remand, 604 F.2d 106, 114 (1st Cir.1979) (noting again

that sex discrimination includes “the practice, whether con-

scious or unconscious, of subjecting women to higher stan-

dards of evaluation than are applied to their male counter-

parts”),

'? The language in certain other First Circuit cases might suggest that

an express and conscious employer intent to discriminate is critical to the

third stage of the McDonnell Douglas/Burdine inquiry. Cases have

stated, for example, that a plaintiff must “elucidate specific facts which

would enable a jury to find that the reason given is not only a sham, [59]

but a sham intended to cover up the employer’s real motive,” Hidalgo,

120 F.3d at 335 (internal quotation marks omitted), or that in evaluating

40a

[59] The Supreme Court has long recognized that unlaw-

ful discrimination can stem from stereotypes and other types

of cognitive biases, as well as from conscious animus. In-

deed, discussing age discrimination in Hazen Paper Co. v.

Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338

(1993), the Court characterized employer decisions “‘based

in large part on stereotypes unsupported by objective fact,’”

id. at 610-11, 113 S.Ct. 1701 (quoting EEOC v. Wyoming,

460 U.S. 226, 231, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983)), as

“the essence of what Congress sought to prohibit in the

ADEA,” id. at 610, 113 S.Ct. 1701 (emphasis added). And

the prohibition against this form of disparate treatment is not

limited to the context of age discrimination. The Court has

interpreted Title VII as “’prohibit[ing] all practices in what-

ever form which create inequality in employment opportu-

nity due to discrimination on the basis of race, religion, sex,

or national origin,” County of Washington v. Gunther, 452

U.S. 161, 180, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (quot-

ing Franks v. Bowman Transp. Co., 424 U.S. 747, 763, 96

S.Ct. 1251, 47 L.Ed.2d 444 (1976)), and has noted that this

includes “the entire spectrum of disparate treatment of men

and women resulting from sex stereotypes,” id. (quoting Los

Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702,

707 n.13, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978)). Stereo-

types or cognitive biases based on race are as incompatible

the evidence for pretext, “we remember that the issue is not whether [the

employer’s] reasons to fire [plaintiff] were real, but merely whether the

decisionmakers . . . believed them to be real,” Mulero-Rodriguez, 98 F.3d

at 674. But these cases turn on the particular theories advanced by the

plaintiffs therein. See, e.g., Hidalgo, 120 F.3d at 335 (considering

whether a division was shut down for lack of profits or to eliminate an

older employee); Mulero-Rodriguez, 98 F.3d at 674-75 (examining

whether an employer fired plaintiff because of his alleged failure to

maintain inventory levels or because of his age and national origin).

4la

with Title VII’s mandate as stereotypes based on age or sex;

here too, “the entire spectrum of disparate treatment” is

prohibited.

The role of such stereotyping has been discussed most

thoroughly in that branch of disparate treatment law devel-

oped apart from the McDonnell Douglas/Burdine framework

and known as the Price Waterhouse framework. See Price

Waterhouse v. Hopkins, 490 U.S. 228, 239-58, 109 S.Ct.

1775, 104 L.Ed.2d 268 (1989); Smith, 76 F.3d at 420-22

(comparing the two frameworks). The district court in Price

Waterhouse found that the employer, an accounting firm,

had discriminated against Ann Hopkins by permitting stereo-

typical attitudes about women to play a role in its decision

not to invite her to become partner. See Hopkins v. Price

Waterhouse, 618 F.Supp. 1109, 1118-19 (D.D.C.1985). On

appeal, the employer contended that it could not be liable for

disparate treatment because “Hopkins did not prove ‘inten-

tional’ discrimination on the part of the [decision-making]

Board, but only ‘unconscious’ sexual stereotyping by uni-

dentified partners who participated in the selection process.”

Hopkins v. Price Waterhouse, 825 F.2d 458, 468

(D.C.Cir.1987), aff’g in part and rev’g in part Hopkins, 618

F.Supp. at 1113-21. The D.C. Circuit squarely rejected this

argument:

In keeping with [Title VII’s remedial] purpose, the

Supreme Court has never applied the concept of in-

tent so as to excuse an artificial, gender-based em-

ployment barrier simply because the employer in-

volved did not harbor the requisite degree of ill-will

towards the person in question. As the evidentiary

framework established in McDonnell Douglas makes

clear, the requirement[] of discriminatory motive in

42a

disparate treatment cases does not function as a “state

of mind” element, but as a method of ensuring that

only those arbitrary or artificial employment barriers

that are related to an employee or applicant’s [60]

race, sex, religion, or national origin are eliminated.

Id. at 468-69 (footnotes omitted); see also Lynn v. Regents of

the Univ. of Cal., 656 F.2d 1337, 1343 n. 5 (9th Cir.1981)

(“[W]hen plaintiffs establish that decisions regarding . . .

employment are motivated by discriminatory attitudes relat-

ing to race or sex, or are rooted in concepts which reflect

such attitudes, however subtly, courts are obligated to afford

the relief provided by Title VII.”). ~

The court of appeals found it unsurprising that the dispa-

rate treatment doctrine focuses on causality rather than con-

scious motivations, since “unwitting or ingrained bias is no

less injurious or worthy of eradication than blatant or calcu-

lated discrimination.” Hopkins, 825 F.2d at 469. If the plain-

tiff has shown that she was treated less favorably because of

her gender, the court said, “the fact that some or all of the

partners at Price Waterhouse may have been unaware of that

motivation, even within themselves, neither alters the fact of

its existence nor excuses it.” Jd.

The Supreme Court upheld this portion of the D.C. Cir-

cuit’s decision. See Price Waterhouse, 490 U.S. at 250-52,

109 S.Ct. 1775 (plerality opinion); id. at 259, 109 S.Ct. 1775

(White, J., concurring in the judginent); id. at 261, 272, 277-

78, 109 S.Ct. 1775 (O’Connor, J., concurring in the judg-

ment); see also Hopkins v. Price Waterhouse, 920 F.2d 967,

969 (D.C.Cir.1990) (affirming district court decision after

remand from Supreme Court) (noting that this portion of

Hopkins, 825 F.2d at 468-69, was upheld by the Supreme

43a

Court). The Price Waterhouse plurality explained: “In the

specific context-of sex stereotyping, an employer who acts

on the basis of a belief that a woman cannot be aggressive, or

that she must not be, has acted on the basis of gender.” Price

Waterhouse, 490 U.S. at 249, 109 S.Ct. 1775. The plurality

added that “[b]y focusing on [the plaintiff's] specific proof,

. .. We do not suggest a limitation on the possible ways of

proving that stereotyping played a motivating role in an em-

ployment decision.” Jd. at 251-52, 109 S.Ct. 1775."4

* Price Waterhouse also held that an employer could avoid liability

for disparate treatment if it could demonstrate that it would have taken

the same action in the absence of the discriminatory motive. See Price

Waterhouse, 490 U.S. at 237-52, 109 S.Ct. 1775 (plurality opinion). This

holding was statutorily overruled by the 1991 Civil Rights Act. See Civil

Rights Act of 1991 § 107, 42 U.S.C. § 2000e-2(m) (“[A]n unlawful em-

ployment practice is established when the complaining party demon-

strates that race, color, religion, sex, or national origin was a motivating

factor for any employment practice, even though other factors-also moti-

vated the practice.”). The 1991 Civil Rights Act did not overrule Price

Waterhouse’s application of Title VII to employer decisions based on

stereotypical thinking.

In defining those violations of Title VII for which compensatory

damages may be awarded, the 1991 Act uses the phrase “unlawful inten-

tional discrimination.” 42 U.S.C. § 1981a(a)(1). This phrase merely

distinguishes the disparate treatment framework, and other frameworks in

which plaintiffs are individually affected, from the disparate impact

framework. See id. (limiting compensatory damages to actions in which

respondents “engaged in unlawful intentional discrimination (not an em-

ployment practice that is unlawful because of its disparate impact)”).

Cases decided after the enactment of the 1991 Civil Rights Act continue

to recognize the validity of claims based on employers’ biased or stereo-

typical thinking. See, e.g., Galdieri-Ambrosini v. National Realty & Dev.

Corp., 136 F.3d 276, 289 (2d Cir.1998) (upholding judgment for em-

ployer as a matter of law, given insufficient evidence of discrimination,

but noting, in case where plaintiff sought compensatory damages, that

44a

[61] The concept of “stereotyping” includes not only sim-

ple beliefs such as “women are not aggressive” but also a

host of more subtle cognitive phenomena which can skew

perceptions and judgments. Price Waterhouse highlighted

one such phenomenon: the tendency of “unique” employees

(that is, single employees belonging to a protected class,

such as a single female or a single minority in the pool of

employees) to be evaluated more harshly in a subjective

evaluation process. See id. at 235-36, 109 S.Ct. 1775; see

also Villanueva v. Wellesley College, 930 F.2d 124, 131 (1st

Cir.1991) (discussing possible relevance of plaintiff's status

as the sole employee within a protected class). Other types of

biased thinking are also widely recognized. See generally L.

H. Krieger, The Content of Our Categories: A Cognitive Bias

Approach to Discrimination and Equal Employment Oppor-

tunity, 47 Stan. L. Rev. 1161, 1186-1217 (1995) (describing

varieties of cognitive bias); C. R. Lawrence III, The Id, the

Ego, and Equal Protection: Reckoning with Unconscious

Racism, 39 Stan. L. Rev. 317, 328-44 (1987) (discussing

“[e]vidence of sexual stereotyping may provide proof that an employ-

ment decision .. . was based on gender”); Bush v. Commonwealth Edison

Co., 990 F.2d 928, 931-32 (7th Cir.1993) (considering whether plaintiff

has produced evidence adequate to show that the employer’s subjective

determinations “reflect{[ed] unconscious racial bias”); Jenson v. Eveleth

Taconite Co., 824 F.Supp. 847, 864 (D.Minn.1993) (noting that under

Price Waterhouse expert testimony regarding sexual stereotyping can be

relevant to plaintiff's disparate treatment claim). While the Supreme

Court recently considered the mental state necessary for the award of

punitive damages under the 1991 Civil Rights Act, see Kolstad v. Ameri-

can Dental Ass'n, __ [61] U.S. __, 119 S.Ct. 2118, 2123-26,

L.Ed.2d__ (1999) (interpreting 42 U.S.C. § 1981a(b)(1), which permits

punitive damages where an employer has acted “with malice or with

reckless indifference to [the employee’s} federally protected rights”), it

has not reconsidered Price Waterhouse’s conclusion that the phrase “be-

cause of” in § 2000e-2(a)(1) is not limited to expressly conscious intent.

45a

forms of racism); see also D. Charny & G. M. Gulati, Effi-

ciency-Wages, Tournaments, and Discrimination: A Theory

of Employment Discrimination for “High-Level” Jobs, 33

Harv. C.R.-C.L. L. Rev. 57, 77-78, 83 (1998) (noting the in-

ability of the market alone to correct the effects of cognitive

biases and stereotypes).

[23-25] We make one final general point about the third

Stage of the McDonnell Douglas/Burdine framework: in the

context of a motion for summary judgment, courts must be

very cautious about sua sponte finding non-discriminatory

reasons for apparently disparate treatment. Although the pre-

sumption of discrimination has dropped out of the case by

the third stage of the McDonnell Douglas/Burdine frame-

work, its rationale remains relevant: discrimination, rarely

explicit and thus rarely the subject of direct evidence, may be

proven through the elimination of other plausible non-

discriminatory reasons until the most plausible reason re-

maining is discrimination. See Burdine, 450 U.S. at 254 n. 8,

101 S.Ct. 1089 (noting that “the allocation of burdens” in a

Title VII case “is intended progressively to sharpen the in-

quiry into the elusive factual question of intentional dis-

crimination”). In this case, for instance, the plaintiff has ar-

gued that her appraisal scores were unfairly low because of

her race, while the defendant has argued that the scores were

objectively fair. By finding that plaintiff has presented

enough evidence to suggest that her scores were unfairly

low, and then speculating that a personality conflict could be

the source of that unfairness, the district court erroneously

adopted a third view. See Thomas, 18 F.Supp.2d at 137-38.

No party in this case has argued that a personality conflict

explained any disparity in the scores assigned by Flannery,

and the district court should not, at summary judgment, have

replaced Kodak’s articulated explanation sua sponte with its

46a

own. It may be that a jury (or judge, if no jury trial is

claimed) would find at trial that a personality conflict rather

than racial bias is the best explanation for any difference in

scores. But the question at summary judgment is not which

of the possible explanations is most convincing; it is whether

the plaintiff has produced enough evidence to raise a genuine

issue of fact regarding her explanation.

[26] Having clarified the actual nature of the plaintiff's

burden under McDonnell Douglas/Burdine, we now consider

whether Thomas has met that burden. Because the employer

here has articulated a non-discriminatory reason for its ac-

tion, the initial presumption of discrimination creat- [62] ed

under McDonnell Douglas/Burdine has dropped from the

case. See Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742; Smith,

76 F.3d at 421. This leaves the plaintiff with the ultimate

burden of proving discrimination. She must produce evi-

dence to create a genuine issue of fact with respect to two

points: whether the employer’s articulated reason for its ad-

verse action was a pretext and whether the real reason was

race discrimination. See Udo, 54 F.3d at 13. In other words,

she must produce evidence to permit a reasonable jury to

conclude both that disparate treatment occurred and that the

difference in treatment was because of race. The same evi-

dence may support both showings. See id.

[27] The first portion of Thomas’s third-stage burden is to

produce sufficient evidence to show that she was not evalu-

ated on the same terms as her colleagues, but rather was

evaluated more harshly than the other, non-minority CSRs.

The district court found that the plaintiff met this portion of

her burden: she produced enough evidence to allow a rea-

sonable factfinder to determine that Flannery’s reasons for

47a

assigning her scores were “pretextual.” Thomas, 18 F.Supp.

2d. at 137. We agree.

[28] One strong piece of evidence is the sharp drop in

Thomas’s overall score (from 6 in 1989 to 3 in 1990) after

Flannery became her supervisor. While the drop in score

would not demonstrate uneven treatment if F lannery were

simply a “tough grader,” this does not appear to have been

the case. In 1990, when Thomas received a 3, all of the other

CSRs whom Flannery graded received either a5ora6."

Furthermore, over her three years as supervisor Flannery

gave CSRs other than Thomas a number of 7s in individual

categories, a score that earlier Supervisors characterized as

extremely rare or even unheard of.

The drop in Thomas’s score from 1989 to 1990 would

also fail to demonstrate uneven treatment if it merely re-

flected a higher standard imposed upon Thomas due to her

grade change in 1989. According to Kodak, “the higher the

wage grade and salary, the more Kodak expected from the

employee.” Appellee’s Brief at 34. But Thomas presents

'* This information comes from a summary chart of performance ap-

praisal scores produced by Kodak. For 1990 Kodak apparently retained

only Thomas's appraisal form and the overall scores of the other CSRs; it

was unable to produce the other five appraisal forms for 1990. Thomas

Suggests in a footnote that the summary chart “would be inadmissible

pursuant to FRE 1006 since the documents summarized are not so volu-

minous that a jury could not reasonably review them at trial and because

the documents summarized were not produced.” Appellant’s Brief at 18

n. 3. We do not address this argument, since issues not squarely raised by

the parties are considered waived. See Service Employees Int’l Union v.

Local 1199 N.E., 70 F.3d 647, 654 n.7 (1st Cir.1995) (noting that a “cur-

sory footnote” does not suffice to raise an issue (internal quotation marks

omitted)). In any event, both Kodak and Thomas rely on the information

contained in the chart.

48a

deposition testimony from other supervisors suggesting that

there was no such rule, and the scores that Flannery assigned

to other Wellesley CSRs seem to bear this out: one CSR who

received a grade change in 1991 received a 5 in 1992 after

receiving a 6 in 1991 (a drop of only one point rather than

three after the grade change), and another CSR who received

a grade change in 1991 received a higher score the following

year (from a 4 in 1991 toa 5 in 1992).

Thomas makes other specific comparisons as well. The

strongest of these concern her scores for “quantity of re-

sults,” which was the most objective of the categories ap-

praised, since it was based directly on the number of ma-

chines and installations for which a CSR was responsible.

Thomas’s scores appear low when compared to the scores

for quantity given to other CSRs. In 1990, for instance,

Thomas received only a3 for quantity of results—a below

average score—for managing 730 machines and 110 installa-

tions, while another CSR, also in the K6 grade, received [63]

a 5 for quantity in 1991 for managing far fewer machines

(504) and fewer installations (81). Kodak argues that the

comparison is “unfair and analytically unsound” because the

other employee had been at the K6 grade for many years,

and “[s]ustained performance at a higher grade counts for

more than a relatively shorter period of performance at the

higher grade.” Appellee’s Brief at 35. This argument might

persuade a jury to discount the value of this comparison, but

it does not render the comparison meaningless at summary

judgment, where Thomas need only produce evidence suffi-

cient to support her contention that her scores were lower

than those given to similarly performing non-minority CSRs.

See Molloy v. Blanchard, 115 F.3d 86, 91 (1st Cir.1997)

(noting that “‘[e]xact correlation is neither likely nor neces-

sary” and stating that “(t]he test is whether a prudent per-

sé at, ns sean ond 4 fo t "7." yd wn ay. - —_

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49a

son, looking objectively at the incidents, would think them

roughly equivalent.” (quoting Dartmouth Review y. Dart-

mouth College, 889 F.2d 13, 19 (1st Cir.1989))).

In addition to the performance appraisals themselves,

Thomas presents other evidence to show that Flannery

treated her differently than she treated the other CSRs. Ac-

cording to Thomas, Flannery used flimsy grounds to prevent

her from delivering an important presentation at a Kodak

meeting, refused to provide her with computer training,

failed to allow her appropriate developmental opportunities,

and failed to evaluate her accurately on the basis of her inter-

action with customers (since she never accompanied Thomas

on site in order to observe that interaction, as she did with

the other CSRs).

On the whole Thomas has presented enough evidence to

survive summary judgment on the question of disparate

treatment. Some of Thomas’s scores, and particularly the

1990 scores, appear lower than one would expect given her

apparent performance level. A reasonable jury, examining

the evidence Thomas has submitted, could conclude that

Thomas was evaluated more harshly than other, non-

minority CSRs supervised by F lannery.

[29] Kodak argues that, even if true, this would not mat-

ter, because Thomas would have been laid off anyway. Even

if Thomas had received the highest possible score (7) in

1990, Kodak says, her PAR ranking would not have

changed: because the PAR formula so heavily weighted the

two more recent scores, Thomas would still have had the

second lowest PAR score among the CSRs and would still

have been selected for layoff. There are two flaws with this

argument. First, it ignores the natural implications of a find-

50a

ing that the 1990 scores were unfairly low. To the extent that

Thomas’s 1990 scores were inappropriately low, a factfinder

could infer that her later scores—although higher than her

1990 scores—were inappropriately low as well'® (and in-

deed, they were consistently lower than the scores given to

the other CSRs, as demonstrated by the performance ap-

praisals that Kodak has produced for 1991 and 1992). Sec-

ond, Kodak’s argument ignores the fact that performance

appraisal scores were expressly on a curve. According to

Kodak’s compensation plan, scores were to be “validated”

by reference to an informal supervisor ranking of employees

in the group. Thus, if Thomas’s scores had gone up, other

CSRs’ scores might have gone down. Whether accurate scor-

ing of Thomas in relation to the other CSRs would have

saved her from layoff is something Thomas must prove at

trial. But she has created a genuine issue with respect to this

question. Not only has she produced evidence which sug-

gests that Flannery treated her differently and graded her

more harshly than the other CSRs, she has also produced

evidence to support the claim that her earlier evaluations

were a more accurate [64] appraisal of her performance: (1)

her promotion in 1989 to the K6 grade, which was reserved

for “outstanding” CSRs “servicing the largest and/or most

sensitive accounts,” (2) her salary, which was higher than her

seniority would predict, presumably reflecting the fact that

Kodak had, over the years, found her performance level to be

comparatively high, and (3) the positive comments from cus-

tomers and from other supervisors, which suggest that she

was in fact one of the better CSRs.

'6 In addition to drawing such an inference, a factfinder might also

reach this conclusion—that Thomas’s 1991 and 1992 scores were inap-

propriately low—by relying on the type of direct evidence discussed

above with reference to Thomas’s 1990 scores.

Sla

[30] Our inquiry does not end with this finding, since

even the most blatant unfairness cannot, on its own, support

a Title VII claim. “Title VII does not grant relief to a plain-

tiff who has been discharged unfairly, even by the most irra-

tional of managers, unless facts and circumstances indicate

that discriminatory animus was the reason for the decision.”

Smith, 40 F.3d at 16; see also Rodriguez-Cuervos, 181 F.3d

at 21-23. Instead, our focus shifts to the question whether

Thomas has produced sufficient evidence to support a find-

ing that the apparent disparity in treatment was due to her

race.

As we emphasized above, Thomas can meet her burden

with respect to this question using the same evidence used to

show unequal treatment. The district court’s opinion can be

read to say that at this stage the plaintiff must produce what

has been called “direct” evidence, such as racially explicit

statements. That is not so. There is no requirement that a

plaintiff, having shown differential treatment and pretext,

must present direct, “smoking gun” evidence of racially bi-

ased decisionmaking in order to prevail. Where the disparity

in treatment is striking enough, a jury may infer that race

was the cause, especially if no explanation is offered other

than the reason rejected as pretextual. That is the case here,

since Kodak argues that Thomas’s scores were objectively

fair, not that they were unfair due to a personality conflict, as

the district court surmised.

In fact, Thomas does present additional evidence on this

point. She describes incidents and situations which suggest

that Flannery had a general disregard for her professional

abilities and status. It also appears, from the picture that

Thomas paints (and which Kodak does not dispute) that

Flannery was at times inappropriately upset or angry with

Thomas, to the point of behaving unprofessionally. This, in

52a

turn, suggests that she did not respond neutrally to Thomas.

A jury might reasonably infer from Thomas’s description of

these incidents that Thomas’s race was an issue for Flannery

and that Flannery’s evaluations of Thomas were affected by

some form of conscious animus or less conscious bias.'”

Qur assessment of the evidence would be quite different if

Thomas had been one of several black employees supervised

by Flannery, some of whose scores were not low relative to

those of the non-minority CSRs. But that was not the case.

Thomas was the only black CSR, and one can infer from the

evidence that she was also the only CSR who was evaluated

unfairly. Given this, it is reasonable to infer that race played

a determinative role in the evaluation process—especially

since there is also other evidence that Flannery treated Tho-

mas poorly. Indeed, the very fact that Thomas was the only

black CSR at the Wellesley office may have increased the

likelihood that she would be evaluated more harshly. See

'7 Thomas describes a number of other incidents from her time at Ko-

dak, not involving Flannery, which she believes to have been racially

tinged. (These incidents are recounted in note 4 above.) If true, these

incidents are unfortunate, but they are not relevant to the issue whether

Flannery evaluated Thomas differently because of her race. As a general

matter, “[t]he biases of one who neither makes nor influences the chal-

lenged personnel decision are not probative in an employment discrimi-

nation case.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,

10 (1st Cir.1990). Although “circumstantial evidence of a general dis-

criminatory environment may add ‘color’ to an employer’s decisionmak-

ing process, we have explained that ‘[p]roof of a general atmosphere of

discrimination is not the equivalent of proof of discrimination against an

individual.”” Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 249

(1st Cir.1997) (quoting Sweeney, 604 F.2d at 113). Because the incidents

that Thomas describes appear to have been isolated in time and limited in

number, and because these incidents did not appear to involve individu-

als in a position of influence over Flannery, we do not take them into

account.

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53a

Price Waterhouse, 490 U.S. at 235-36, 109 S.Ct. 1775;

Villanueva, 930 F.2d at 131.

In the end, Thomas is in a different position than a plain-

tiff who merely “disagree[s] with [the employer’s] assess-

ment of her relative performance.” Compton v. GTE Gov't

Sys., Corp., No. 93-11383, 1995 WL 791938, at *6 (D.

Mass. Dec. 7, 1995), cited in Thomas, 18 F.Supp.2d at 136;

see also Blick vy. Pitne) Bowes Management Servs., Inc., No.

93-11573, 1995 WL 791945, at *5 (D.Mass. Dec. 26, 1995)

(noting that a plaintiff's mere disagreement with the em-

ployer’s “assessment of his work attitude . . . is not sufficient

to create a triable federal discrimination Claim”), cited in

Thomas, 18 F.Supp.2d at 136. Thomas has presented “evi-

dence from which the trier of fact reasonably could conclude

that [her] abilities and qualifications were equal or superior

to employees who were retained.” Goldman v. First Nat'l

Bank of Boston, 985 F.2d 1113, 1119 (1st Cir.1993). It is not

an “improbable inference[]” or “unsupported speculation,”

Medina-Munoz y. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir.1990), to further conclude, based on the evidence

available at summary judgment, that Kodak failed to recog-

nize this fact because it relied on an evaluation procedure

that was tainted by racial bias.

Thomas’s claim is timely, and it is based on sufficient

evidence to permit a reasonable jury to find that Flannery

discriminated against Thomas because of her race when she

assigned the performance appraisal scores that led to Tho-

mas’s layoff. Accordingly, we reverse the district court’s

grant of summary judgment and remand for further proceed-

ings consistent with this opinion.

Costs are awarded to appellant.

54a

APPENDIX B

—~T8 F.Supp.2d (D.Mass. 1998)

Myrtle THOMAS, Plaintiff, —

EASTMAN KODAK COMPANY,

Defendant.

Civil Action No. 96—10890—WAG.

United States District Court,

D. Massachusetts.

Sept. 22, 1998.

Former employee brought Title VII race discrimination

action against former employer. On former employer’s mo-

tion for summary judgment, the District Court, Garrity, J.,

held that: (1) Title VII’s 300-day period for filing

administrative claim was not triggered by employee’s

performance evaluations; (2) evidence of pretext alone was

not enough for employee to survive summary judgment; (3)

employee introduced sufficient evidence to support finding

that employer’s stated reason for her termination was

pretextual; and (4) employee failed to introduce sufficient

evidence to support finding that the true reason for her

termination arose from racial discrimination.

Motion granted.

Set Pe ee LE ON LAA FELINE eS aa

55a

Marisa A. Campagna, Campagna & Riley, Boston, MA, for

Plaintiff.

Jon M. Nelson, Michael A. Fitzhugh, Fitzhugh & Associ-

ates, Boston, MA, for Defendant.

MEMORANDUM OF DECISION

GARRITY, District Judge.

Myrtle Thomas (“Thomas”), plaintiff in this employment

discrimination case, was laid off by Eastman Kodak Com-

pany (“Kodak”), defendant. Kodak selected Thomas for lay-

off based on her past performance evaluations; since these

evaluations were racially biased, plaintiff argues, her layoff

was illegal under Title VII of the Civil Rights Act of 1964,

Pub.L. No. 88-352, 78 Stat. 259, codified as amended at 42

U.S.C. §§ 2000e to 2000e-17 (“Title VIt’). Defendant, mov-

ing for summary judgment, argues that plaintiffs claims are

time-barred or, in the alternative, lacking evidence of racial

animus sufficient to reach a jury. The Court finds that plain-

tiffs claim, while timely, cannot survive summary judgment.

We therefore grant defendant’s motion.

Facts

In deciding a motion for summary judgment, “we state the

facts in the light most favorable to the nonmoving party, in-

dulging all inferences in that party’s favor.” Dykes v. Depuy,

Inc., 140 F.3d 31, 33 (1st Cir.1998). Plaintiff alleges a num-

ber of incidents and statements that defendant denies or does

not discuss; in deciding this motion, we accept plaintiff's

version in all cases,

56a

Plaintiff is a black woman. Kodak hired her in 1974 to

work in Rochester, New York. In 1980, Thomas was pro-

moted to Customer Support Representative (“CSR”). She

was trained and transferred to the Office Imaging division in

the Wellesley, Massachusetts office. Thomas worked in the

Wellesley office until she was laid off in March 1993. In

July 1993, Thomas filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”).

The EEOC issued a Right to Sue Letter on February 5, 1996.

Plaintiff sued in this Court on May 2, 1996.

CSRs were sales, marketing and customer support per-

sonnel. Each CSR supported customers in an assigned terri-

tory who owned Kodak copiers and other equipment. CSRs

trained customers and other personnel in use and mainte-

nance of Kodak’s products, helped salespeople perform in-

stallations, and worked to keep customers satisfied with Ko-

dak imaging equipment and service. Six CSRs worked in the

Wellesley office. For the thirteen years Thomas there, she

was the only black CSR.

In 1993, Kodak decided to implement a reduction in force

in its North American office imaging divisions. Kodak

planned to eliminate approximately 80-100 positions, includ-

ing two CSRs in the Wellesley office. To decide whom to

lay off, defendant used the Performance Appraisal Ranking

process, or “PAR process.” The PAR Process was based on

each employee’s last three Performance Appraisals (“PAs”).

Supervisors completed annual PAs for each of their employ-

ees. Kodak used the PA, system to “reward each individual’s

job performance appropriately.” Def.’s Summ. J. Mem., Ex.

O. Further, defendant “expected supervisors to use appraisals

for,” among other things, “determining who should be pro-

moted, transferred, demoted, terminated, laid off, and re-

57a

employed.” Jd. The PA included written comments and nu-

merical ratings in several areas. Each employee also re-

ceived an overall rating, from a low of one to a high of

seven. In the PAR process, defendant applied employees’

overall ratings to a formula, weighting the most recent two

evaluations. Thomas’s PAR process number was the lowest

in her group; she was laid off along with the second-lowest-

rated CSR, a white woman.

Generally speaking, Thomas was a good employee. Be-

fore 1990, plaintiff was supervised and evaluated by District

Sales Manager Richard Austin, Sales Managers Garrie

O’Neill and Katherine Sullivan, and briefly by Customer

Service Manager Tim O’Connor. She received positive

evaluations, as well as awards and bonuses from Kodak. Her

1988 and 1989 PA ratings were respectively five and six.

After her 1989 evaluation, Thomas was given a grade change

from K4 to K6, increasing her salary by $19.00 per week

without changing her job description.

In 1989, Kodak created the position of Customer Support

Manager. When Thomas asked to be considered for this po-

sition, she was told she was not at the correct grade level.

Instead, Claire Flannery (“F lannery’”), who was then working

as a secretary, became the Customer Support Manager, and

began to supervise the Wellesley CSRs including Thomas.

Problems in the working relationship developed between

Flannery and Thomas. Plaintiff alleges a series of incidents

between the two; we include four examples. When Flannery

and Thomas were to give a customer presentation together,

Flannery took over the presentation and left no time for

Thomas. When Thomas asked what happened, Flannery said

she got a little carried away. Flannery scheduled a customer

appointment for Thomas, but gave Thomas the wrong time.

58a

Thomas was over two hours late. When plaintiff confronted

her, Flannery denied giving the wrong time. Thomas then

replayed Flannery’s voicemail message to Flannery and oth-

ers in the office. Flannery finally admitted she was wrong,

but refused to write the customer to clarify why Thomas had

been late. Flannery did not train Thomas on the office com-

puter as she did other employees. Flannery scheduled meet-

ings and insisted on employees’ attendance. On one occa-

sion, when Thomas attempted to leave a meeting to reoke a

customer visit, Flannery became upset and physically

blocked the door.

Flannery’s gave plaintiff lower PA ratings than had her

previous supervisors. Flannery also rated Thomas lower than

other CSRs. In 1990, Flannery gave Thomas an overall PA

rating of three, citing a failure to file weekly and quarterly

reports. Before Flannery took over, CSRs were not required

to submit such reports. During Flannery’s tenure, none of the

other Wellesley CSRs received an overall PA rating below

four. Flannery told Thomas she could score no higher than a

three because she had recently changed grades. Kodak had

no policy that a grade change would result in lower ratings.

Thomas refused to sign her 1990 PA, believing it did not

fairly reflect her work. In 1991 and 1992, Flannery gave,

Thomas increasing PA ratings of four and five. Thomas did

not see or sign the 1992 PA. Thomas received pay raises of

$30.00 and $29.00 per week in 1991 and 1992.

In addition to her performance reviews, plaintiff submits

the following events and situations as evidence of unlawful

discrimination. When plaintiff was transferred to Wellesley,

Kodak did not fly her to Massachusetts, as it had other trans-

ferred employees. Instead, Thomas was told to drive a car

that had been requested by Richard Austin, her new supervi-

a *

59a

sor. The car was in disrepair, requiring a new muffler.

Though other employees had two weeks in

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