# Petition for Writ of Certiorari — Eastman Kodak Co. v. Thomas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0817%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1161 ## Text OFFICE of HE fi cn, ve isla LEQ 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 ad 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 ii 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 OPINIONS BRISTOW, | i cisesssssscisscitahiapaanienbivnmuraeaeiaiapeies ] FUTRESEIOG. LIMON sccsuncissnnessinincatnscenhalbegeltensedp abbas binmenacteiesn ] 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 iV 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 Vv 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 vi Zipes v. Trans World Airlines, Inc., 453 U.S. SES CED vicsisccrcescicscanescvintietetaaes 10, 28 STATUTES: United States Code DE USK & BAIRD: socessssncersvnicntsesstctiustesineueicprantios ] 2B USA. 6 TPT vc ccchimi conan ] BB UBS. FEST: cincciecsnctsssisesscioedeavoemmnnaginmeanen l 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. 2 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 3 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. 4 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 5 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 6 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. 7 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- 8 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. 9 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: 10 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 11 (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). 12 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 13 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. }4 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 15 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- 16 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. 17 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, 18 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. 19 (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 20 “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. 21 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. 22 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 23 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 24 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. 25 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.) 26 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. 27 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. 28 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. 29 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 a i : q : ‘ 4 4 ; : re 4 a j < la . F : 4 , Pe ; : : c. q 4 3 a a # 4 2 a. mat ree. 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, v. 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 2a 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 3a 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 4a 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. I 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 5a 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 6a 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- Ta 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.” 8a 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. 9a 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). A {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. é 4 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0817%3A1. Public record. Not legal advice.