Smith v. F.W. Morse Co., Inc.

Plaintiff, Appellant, SMITH, Kathy CO., INC., MORSE &

F.W.

Defendant, Appellee.

No. 95-1556. Appeals, Court of

United States

First Circuit. 6, 1995.

Heard Nov. Feb.

Decided

415 Ford,

Dеbra Weiss with whom Edmond J. Ford, Koehler, Ford, L. Eileen and Ford & Weaver, brief, Portsmouth, P.A. were NH, appellant. for Blanchard, Raymond Taylor, P. with whom brief, Blanchard, Keane & P.A. was on Ports- mouth, NH, appellee. for SELYA, Judge. Circuit appeal, plaintiff In this us to invites overrule the district court’s adverse decision Rights Title Act of under VII the Civil (1988) To fill the void created §§ cashiered Lane. 2000e-2000e-17 42 U.S.C. (Title VII), departures, her common law and to reinstate the two executive-level Morse of contract and action for breach newly posi- causes of created promoted Smith to the the invita- 'wrongful discharge. We decline manager, consolidating re- tion of materials aspects. tion all its sponsibilities scheduling, production con- control,

trol, inventory shipping, purchasing, I. BACKGROUND receiving previously been had managers. spread among three preceded the events

We chronicle recount what tran- filing of suit and then told, reorganization All ef- Morse’s initial spired thereafter. for Robinson and forts substituted Guimond management from sev- pared second-echelon Chronology of Events. A. Guimond, en to five. In addition to Fabricators, Inc. Damar Plastics & Metal reconfigured management comprised team (Damar) job shop in operated a Somers- (sheet (machining); met- Paradis Shevenell worth, Hampshire, it crafted cus- New where al); (sales); (engineering); Seeger Bickford high-technology applica- components for tom (materials). recognition Smith Kathy joined Plaintiff-appellant Smith tions. responsibilities, increased Morse Smith’s steadily and advanced Damar (once pay January twice hiked her posi- through the ranks until she reached the March), increasing weekly again in thus manager production tion almost a decade stipend by roughly twenty-five percent. capacity, pro- later. In that Smith scheduled delivery and coordinated dates. duction runs takeover, At the time of the about imbroglio with Darrol In late after preg- informed Bond that she had become (Damar’s general man- Robinson owner and nant and would need a leave. ager), requested reassign- and obtained she Morse, tiny company, a had no formal mater- post having responsi- ment to a different no nity policy. leave Bond nonetheless honored bility production scheduling. for request and assured her that her Smith’s 28, 1988, position preparation In for defendant-appellee December was “secure.” On (Morse), leave, firm meetings Morse & Inc. a F.W. her Smith held several with Bond, acquired Damar’s Guimond, Shevenell, owned Chris and Paradis. The com- business and assets. Damar then had fewer pany temporarily managerial her distributed forty employees, including seven man- than among supervisors arranged duties other and agers reporting directly to Robinson: Mi- Gilday, newly-hired secretary, Kelly to control); (production Hickman Robert chael Along perform her clerical functions. (produc- (shipping); Ronald Paradis Lane way, informed Guimond Smith either tion/maehining); (produc- Marc Shevenell likely Paradis or Shevenell would be dis- metal); Gary (engineer- Bickford tion/sheet charged, and told her that she would be (sales); Seeger ing); Michael and Smith. promoted again upon mater- her return from titled, Though not Smith testified that she that, nity leave. also indicated Guimond manager considered to be a de facto was demoted, probability, all Bickford would be who, inadequa- largely because of Hickman’s por- and would be asked to assume a Smith cies, performed many of the duties of changes pre- tion his duties. While these production manager. control sumably would warrant increased remunera- promptly concluded that Damar had Bond tion, Guimond did not mention an amount. many too chiefs and too few Indians. Within 7,1989, April began On Smith her materni- Then, days closing, he fired Hickman. leave, ty ap- planning to return to work in Guimond, Maryann in concert with the new proximately gave birth six weeks. She two (who hire, general manager authority had to Meanwhile, Guimond, expecting weeks later. fire, discipline personnel), interviewed and he fall,” “reality “sky regular held check” including employees, number Smith. review, meetings Paradis. To company the aftermath of this with Shevenell and surprise, plant very any functioned well.1 ther man responsibilities her assumed new reported good news Bond. salary Guimond or received increase connection title). Gilday with his new per- continued to plant May on 1 and Smith visited the form the clerical functions associated with informed Guimond she wished return position. Smith’s former When the second originally to work one week earlier than an- down, reorganization round оf the wound inquired ticipated. about whether Guimond plant had three managers— second-echelon children, more and Smith re- Smith desired (manufactur- (operations); Paradis Shevenell plied affirmatively. following day, Gui- (sales) ing); Seeger origi- and lieu of the Vendasi, queried mond Karen Smith’s sister —in nal seven. co-worker, plans about Smith’s to have a larger family. relayed Vendasi this conver- B. Procedural History.

sation to Smith and told her of nascent ru- might mors to the effect that she not return Smith sued in a Hampshire Morse New to work. contacted Smith Guimond and de- alia, alleging, state court wrongful inter dis- explanation. manded Guimond denied charge gender discrimination, based on in- rumors, any knowledge of the dismissed distress, tentional infliction of emotional buzznacking, again them as idle assured breach of contract. Morse removed the case job that her was secure. Smith Guimond ground federal district court on the repeated during these assurances a chance VII, Smith’s claim “arose under” Title thus meeting May 4. prompting question jurisdiction. federal later, days A few Guimond concluded 1331,1343(a)(3), 1441,1446; §§ 28 U.S.C. see manager’s position super- the materials § also 28 (conferring ancillary U.S.C. fluous and decided to eliminate it. She told jurisdiction appended over nonfederal May During of her Smith decision on claims). Smith thereafter filed an amended conversation, telephone Guimond asked complaint that made her Title claim VII ex- preferred people Smith she to be told that plicit. stay she had decided to with home Early in proceedings, Mоrse moved for infant child rather than that she had been partial summary judgment. The district discharged. rejected suggestion. J.) (Stahl, granted court the motion on the Nevertheless, repeated Morse wrongful discharge common law and emo- this canard to several customers.2 tional distress claims. See Smith v. F.W. severance, Following Smith’s Guimond Co., 90-361-S, slip op. Morse & No. 12 at gave most of her duties to Paradis in his new (D.N.H. 1991) 26, Sept. (unpublished) {Smith capacity operations manager. as Shevenell I). manufacturing manager assumed the role of (in later, years parties Several the simulta- charge machining of both and sheet metal work). neously tried the Title claim to promoted Guimond also VII the bench two lower- J.) (McAuliffe, ranking employees, Lapanne Peter and Brian the breach of contract Hoffman, jury.3 claim manager positions plain- to assistant to a At the close of the case, (though judg- evidence adduced at trial tiffs the district court demon- entered Lapanne strated that had been an ment assistant as matter of law the defendant’s 1984, manager as far back as and that nei- favor on the breach of contract claim and frame, During company appellant's prior this same time the basis of the claim occurred engineering manager’s position. Act, eliminated the the effective date of the 1991 she had no However, Bickford remained with Morse in a right jury ato trial on her Title VII claim. See capacity. lesser Prods., Inc.,-U.S.-, Landgraf v. USI Film -, 1483, 1487, 114 S.Ct. 128 L.Ed.2d 229 company reprimanded 2. The (1994) (holding that the Act not retroac- 1991 is testimony trial tended to establish that Morse tive). token, By like the Price Waterhouse frame- had not authorized the comments. proof work for of "mixed-motive” discrimination 11(B),infra, that we describe in Part is somewhat 1991, 102-166, Rights 3. The Civil Act of Pub.L. changed 102, 1071, under the 1991 Act. See Fuller v. (1991) (codified § 105 Stat. 1073 1137, (4th Cir.1995). 1981a(c)(l)), Phipps, 67 F.3d 1142 by jury § 42 U.S.C. authorizes trial in Title VII cases. Since the events that form 420 plausible, appellate an issue is pro- record on such jury. Title VII ease The disbanded Dalton, 71 at an end. See Foster v. judge. as- review is Morse the district ceeded before (1st Cir.1995); 52, Anthony v. manag- 56-57 the materials F.3d scrapped it

serted that (1st Cir.1991). Sundlun, 603, part 606 appellant as laid off the 952 position and er’s strategy to streamline a overarching anof structure, Jurisprudence of Title VIL managerial B. The

top-heavy not been had even Smith alia, it provides, inter is Title VII flattened have been leave she would practice employ- for an unlawful court The district downsizing steamroller. because of her discharge an individual er accordingly. judgment agreed and entered 2000e-2(a)(l). § After sex. See U.S.C. Co., F.Supp. Morse & Smith F.W. phraseolo- Supreme held that this Court II). (Smith (D.N.H.1995) appeal This 40, 45 on the gy proscribe discrimination did ‍‌​​‌‌​​​‌‌​​‌​​​​​​​‌‌​​​​​​​‌​‌​‌‌​‌​​​‌​​​‌‌‌‌‍ensued. pregnancy, see Elec. Co. v. basis of General Gilbert, 125, 145-46, 429 U.S. THE TITLE VII CLAIM II. (1976), 412-13, Congress aug- 50 L.Ed.2d 343 jewel appellant’s assever- crown The by enacting Pregnancy mented Title VII dis- array her contention ational (PDA), Act of Pub.L. 95- Discrimination finding that did Morse trict court erred (1978) (codified 1,§ 92 Stat. against her on the basis not discriminate 2000e(k)). § The PDA made at 42 U.S.C. appraisal of this contention is her sex. Our clear that: parts. in three terms “because of sex” or “on the The include, to, of sex” but are not limited basis of Review. A. Standard pregnancy, because of or on the basis trial, Following a bench the court of conditions; childbirth, or related medical factual determina appeals reviews the trier’s by pregnancy, child- and women affected error, Cumpiano see v. Banco tions for clear birth, or related medical conditions shall be P.R., Cir. 902 F.2d Santander employment-relat- for all treated the same 52(a), 1990); plena but affords Fed.R.Civ.P. including receipt purposes, of benefits ed appli ry to the trier’s formulation review programs, fringe under benefit as other rules, Regu legal see Johnson Watts cable persons but in their not so affected similar (1st Cir.1995). lator inability ability or to work. jurisprudence of clear error constrains 2000e(k). Thus, § time 42 U.S.C. See, deciding factual issues anew. us from parted company, and Morse Title Univ., e.g., Jackson v. Harvard gender ban on discrimination encom- VII’s Cir.), passed pregnancy-based discrimination. (1990); Keyes v. 112 L.Ed.2d 104 S.Ct. plaintiffs, Title an em Like other VII Navy, Secretary ployee claiming discrimination on the basis (1st Cir.1988). Indeed, may we not disturb may proceed dispa pregnancy under either findings of record-rooted the district court’s theory. disparate impact or a rate treatment the evidence we fact unless on the whole of Corp. generally Furnco Constr. v. Wa See that a mis irresistible conclusion reach the 567, 575, 579-80, 2943, fers, 98 S.Ct. 438 U.S. Cumpiano, made. take has been See (1978) (ex 2948-49, 2950-51, 57 L.Ed.2d 957 152; Div. v. F.2d at RCI Northeast Servs. Here, dichotomy). plaining appellant Co., 199, 822 F.2d Boston Edison Consequently, alleged disparate treatment. Cir.1987). proving that the defen she had the burden extends This deferential standard purposefully employ her dant terminated simpliciter only findings factual but to pregnancy. of her ment because underlying drawn from the also to inferences Rights predating In cases the Civil 902 F.2d at 152. Sim Cumpiano, facts. See 3, 1991, supra Act note the framework ilarly, findings regarding an actor’s motiva see 52(a), and, varies proving for intentional discrimination of Rule tion fall within the shelter availability therefore, of direct evi- reading depending of the on the if the trial court’s Univ., plaintiff produces dence. See Fields v. Clark 966 F.2d when a direct evidencethat 49, (1st Cir.1992), denied, protected motivating 51-52 cert. 506 the characteristic was a 1052, 976, employment U.S. 113 S.Ct. 122 L.Ed.2d 130 factor in the action-the (1993); Cumpiano, Douglas inapposite. 902 F.2d at 153. Absent McDonnell framework is evidentiary equivalent "smoking Fields, cases, of a 966 F.2d at 52. In those gun," plaintiff attempt prove discriminatory must her direct evidence of motive- burden-shifting say, employer case resort to a frame an admission that it Dep't Community explicitly anticipated pregnan work. See Texas Af took actual or Burdine, 248, 254-56, cy reaching employment fairs v. 450 U.S. into account in 1089, 1094-95, (1981); per S.Ct. 67 L.Ed.2d 207 decision-serves to shift the burden of Douglas Corp. Green, employer. McDonnell 411 U.s. suasion from The 792, 802, 1817,1824, affirmatively prove 93 5.Ct. 36 L.Ed.2d 668 latter must then that it framework, plaintiff would have made the same decision even if it Under this can prima pregnancy protеcted establish a facie case of had not taken the characteristic by showing (1) Hop discrimination she is into account. See Price Waterhouse v. kins, pregnant (or 228, 258, has indicated an intention to 490 U.S. 109 S.Ct. 1794- pregnant), (2) job performance become (1989)(plurality op.); 104 L.Ed.2d 268 id. satisfactory, (3) employer 265-67, (O'Connor, has been but 109 S.Ct. at 1798-1800 position J., concurring). nonetheless dismissed her from her (or took some other adverse ac seeming dichotomy neatness of this against her) (4) continuing tion while to have illusory respects, in certain for evidencerare- performed by comparably quali her duties ly tidy, geometrically precise pack- comes in person. See, e.g., Cumpiano, fied ages. many cases, the line between 153; Lipsett University P.R., Douglas, hand, McDonnell on one and Price (1st Cir.1988). Establishing Waterhouse, hand, on the other is blurred. prima pre facie case raises a rebuttable situations, depends In those classification sumption sparked that discrimination the ad quantity quality proof both the of the employment action, Cumpiano, verse see that a court deems sufficient to constitute imposes upon F.2d at discriminatory direct evidenceof animus. put legitimate, a burden to forward a nondis criminatory motive for the action. See Bur Discretion is sometimes the better dine, 254-55, 450 U.s. at 101 S.Ct. at 1094- part valor, wisely and courts often decide 95; Lipsett, 864 F.2d at 899. If the defen sidestep questions difficult theoretical hurdle, presump dant clears this modest answers to them are not essential to the vapori~zes, tion of disсrimination see Mesnick proper given resolution of a case. We have v. General Elec. good example prudential here a of such a Cir.1991), 504 U.S. 112 approach. largely bypassed The trial court (1992),4 S.Ct. 119 L.Ed.2d 586 and the any differential direct evidence/circumstan plaintiff (who retains the ultimate burden of tamisage, preferring go tial evidence rectly di persuasion discriminatory on the issue of mo finding that, totality to a on the throughout) prove tive must then that the presented, ‍‌​​‌‌​​​‌‌​​‌​​​​​​​‌‌​​​​​​​‌​‌​‌‌​‌​​​‌​​​‌‌‌‌‍proven evidence gender Morse had employer's proffered justification pretext is a trigger discrimination did not the fir discrimination, Mary's see St. Honor Ctr. ing. II, F.Supp. See Smith at 44-45. Hicks, -, v. 2749, approach negates any This need for us to (1993); Mesnick, 125 L.Ed.2d 407 950 pursue question analytic of an framework F.2d at 823-24. agree to a definite conclusion. While we relatively concurring colleague On the rare occasions with our that the deci- smoking gun is, process important, when a is discernible-that sional is there comes a precedential litigation. Hence, brought Age value in Title VII 4. Mesrdck is a case under the Dis- Employment (ADEA), interchangeably crimination Act 29 we cite herein to Title VII and 621-634, §~ cases, distinguishing U.S.C. rather than under Title VII. ADEA tween them. often without be- burden-shifting applies The same both framework instances; therefore, ADEA cases have solid Inc., Group, 859 F.2d upon pro- v. Continental insistence slavish point at which (2d Cir.1988); Is only Pearlstein v. Staten to exalt the sake serves for its own cess F.Supp. 268-69 Hosp., 886 justice over its substance. land Univ. trappings of (E.D.N.Y.1995). merely Here, finding on causa- This is a reflection court’s the district sustainable, permeates the Title VII the rele tion, resolves a theme that if central prima facie appellant’s as Title VII is jurisprudence: vant insofar claim whether Douglas concerned, or employer the McDonnell can hire or fire one ease arises under an reason, And as we il- paradigm. Price of another for Waterhouse instead III(C), below, unfair, Part employer’s see provided lustrate that the fair or infra race, finding passes gender, preg- muster. by choice is not driven nancy, protected other characteris or some Merits. C. The Foster, 56; Keyes, at tic. See 71 F.3d 1026; Package see also Freeman v. F.2d at court’s the district Consistent with (1st Cir.1988) Co., 1331, 1341 865 F.2d Mach. be assumed to have approach, Morse must proposition in ADEA (elucidating similar proving that it would have had the burden case). coin, however, flip of the of the The side action —the elimination taken the same selectively or that an who cleans manager’s position materials —whether euphe pregnant, took a cannot hide behind convenient appellant became house not the leave, “downsizing” planned more as or “streamlin or to bear misms such trimming fat from ing.” car or not court found that Morse Whether children. The organizational prudent chart is a persuasion pivotal company’s devoir of on ried the environment, particular practice that Morse’s decision in a business issue. It concluded specific by judgment employer’s decision to eliminate “motivated business was by plac positions must not be tainted a discrimi represented an to economize effort Goldman, natory animus. 985 F.2d ing qualified personnel the fewest the most Chemetics, 4; possible, managerial positions 1118 n. Maresco Evans number of (2d Mesnick, Cir.1992); plaintiffs gender, pregnan was not based Pearlstein, 825; F.Supp. at 268- cy, expressed to have more F.2d at or her desire II, Supp. 44. 901 F. children.” Smith also concluded “that even Gui

The court backdrop, Against this we believe that imper to have considered mond is assumed supports trial court’s adequately evidence factors, gender-based the same deci missible over, Damar had findings. When Morse took position plaintiffs eliminate would sion to inordinately high managers ratio of been made at the same time” still have managers’ responsibilities workers and the necessity. crux reasons of business Id. The overlapped.5 Both Bond and Guimond testi- inquiry findings these are of our is whether very they from the start believed fied that clearly erroneous. organizational struc- sprawling that Damar’s Accordingly, rhyme or reason. doubt that an em ture defied There is little they compress sprawl. judgment, set out to some ployer, consistent with its business intention, during district court credited their may positions the course eliminate noting actions matched downsizing violating Title even the witnesses’ without VII objective. point, stated More to the though positions are held members their those testified that she terminated the protected groups (pregnant women includ Guimond ed). See, positiоn I that I no e.g., appellant Am. Ins. “because had a LeBlanc v. Great Cir.1993), longer to be filled.” Bond testi- 844-45 felt needed 6 F.3d — too, vein, he, -, indicating that 128 fied in the same U.S. S.Ct. (1994); position had become convinced that Smith’s Goldman v. First Nat’l L.Ed.2d Bank, Cir.1993); accepted this expendable. The court 1118-19 Ass’n, evidence, concluding man- that the materials v. First Fed. Sav. & Loan Montana (2d 100, 105, Cir.1989); ager’s position would have been eliminated Dister that, (Shevenell Paradis), ap- responsi- example, split situation 5. To cite an Damar daily pellant's phrase, manufacturing managers caused "chaos.” bility two own between

423 appeals, all, within the same time frame whether or to call the tune. After “when maternity permissible Smith had taken leave. there are two views of the evi dence, the factfinder’s choice between them view, determination, In our clearly Johnson, cannot be erroneous.” inevitable, supportable. while not is In the F.3d at 1138 (citing City Anderson v. that, place, strongly suggests first the record City, Bessemer fact, position expendable. the was In the 1504, 1511, (1985)). 84 L.Ed.2d 518 any place, second other choice would have In an effort to evade the force of this engineering expertise entailed a loss of that principle, appellant the hauls two further ar- place, Damar could ill afford.6 the third guments First, from bag. her she assever- reception the court’s view is bolstered the ates that Morse did not fact eliminate her appellant originally the received from position, and that contrary the district court’s ownership. new ap the Bond and Guimond II, finding, see F.Supp. Smith at is prised planned downsizing her of the clearly itself erroneous. This asseveration assigned significant responsibilities her new alley. leads down a blind managers They when other were dismissed. promoted also her and increased com an employer defends an em When actions, pensation. These undertaken with ployment discrimination ground case on the knowledge full appellant preg that the was elimination, position not, position may the nant taking and would be a six-week mater like a Dali painting, fade from image one leave, nity are inconsistent with a bias only another image for the first reemerge against pregnant employees. In the fourth eye. at blink the of an See Gallo v. Pruden place, judge, sitting the district as the trier of Servs., tial Residential Partnership, Ltd. fact, right testimony had the to credit Bond’s (2d Cir.1994); LeBlanc, F.3d 1226-28 “maternity played leave never a role 846; Inc., F.3d at v. GenCorp. Barnes in itself’ because the same decision “would (6th Cir.), frame,” very have been made in a close time U.S. S.Ct. L.Ed.2d 171 testimony and Guimond’s to like effect. In a (1990). Yet, position elimination defense is trial, credibility judgments bench such are merely not defeated employ because another judge’s prerogative. Anthony, 952 ee, already payroll, designated F.2d at 606. carry out some or all of employee’s the fired own, duties addition to his or because sure, support To be the record could those duties are otherwise within reallocated a less innocuous conclusion. The chronal LeBlanc, existing work force. See proximity questions of Guimond’s anent 846; Barnes, 896 F.2d at 1465. The elimi plans Smith’s to have more children and her position signifies nation of a employer’s dismissal, suggestion Guimond’s ill-advised it get by helper; belief that can with one less employees that customers and be told that necessarily convey it does not a belief that stay decided at home to care for her doing work the had been daughter, and Smith’s termination while on superfluous performed and need not be at all. troubling leave are much so —so we, Here, palimpsest, might free to write a undisputed evidence before the impetus have characterized the behind the district court indicates that after Guimond appellant’s Smith, differently. ouster position But whether dismissed that Smith had trial occupied court could have drawn an manager inference into de- —materials —fell discriminatory intent is not the test. See suetude. There is no basis the record for Foster, 55; Keyes, suggestion Lapanne 853 F.2d at or Hoffman as- duties; long contrary As as a appellant’s inference is also sumed former supportable duties, Paradis, Shevenell, that is the situation here—(cid:127) those which —and court, leave, it Gilday performed then is for the trial not the during court had Smith’s purchased 6. Bond testified that he Damar to When Morse discovered that it could function acquire engineering manager, its talents. Paradis and with one less the decision to retain Shevenell, Smith, highly experienced Shevenell were trained and Paradis and and dismiss seems engineers, quite plausible. while Smith had no such credentials. (or, under Title VII by It is settled them performed continued to discharge employee short, may not an Gilday). employer an least, by and Paradis (which categorical pregnan on the fact her based reorganization round second Dry Shipbuilding & cy. Newport News striking See job) a resem- her bore cost Smith EEOC, 669, 684, (which Dock Co. v. U.S. gave Smith first round to the blance (1983); 2622, 2631-32, 77 L.Ed.2d 89 S.Ct. manager). Given materials promotion to her By at 153. the same Cumpiano, 902 F.2d facts, judge’s determination the district these token, inability is a to work since short-term posi- appellant’s eliminated the that Morse pregnancy very nature of up bound with the unimpugnable. tion is childbirth, disability pregnancy- a is meaning of 42 condition within the related to sur appellant next endeavors 2000e(k), prohib § thus and Title VII U.S.C. clearly escarpment of the sharp mount dismissing employee an employer its an from legal at the casting a hook erroneous rule taking mater in retaliation for an authorized a trial court. This is applied standard PDA, Nevertheless, nity under the leave. way the moun theoretically to climb sound immunity.8 total pregnancy does not confer tain, see, e.g., Reliance Steel Prods. Co. discharge employer may employee an An Co., 575, 577 Ins. 880 F.2d National Fire legiti pregnant is if it does so for while she Cir.1989) appellate courts re (explaining that pregnancy. to her mate reasons unrelated novo, a even after questions view of law de See, May Dept. e.g., Troupe v. Stores trial), in this the hook does bench but case (7th Pearlstein, Cir.1994); appellant’s thesis is as follows. not hold. The 268-69; Lipsett, F.Supp. at see also employ says prohibits an that Title VII She may (holding employer that an dismiss at 899 employee while she is dismissing from an er employee protected is in a class for a an who maternity employer, if the on leave even reason); nondiscriminatory Allyn Johnson v. force, rationalizing its work process Cir.1984) Bacon, Inc., & position that her is redundant discovers (similar). follows, then, employer It that an it for that reason. eliminates is on a may discharge an while she essence, sug- it pregnancy-induced long to bare this thesis leave so as does so Refined that, gra dis- gests legitimate since Morse would not have reasons unrelated her (if ever) redundancy vidity. at that covered the time maternity took a

but for the fact that Smith Harmonizing principles leave, brought firing.7 these the leave about the following Title attempts this leads to the conclusions. VII appellant to drive And put testimony employer that an must an em by citing that mandates point home Bond’s leave, (including departure maternity ployee’s pregnancy was out on “because” Smith leave) making maternity side in its position that her one Morse was able to discover statute does expendable testimony appel- which the decisions—but the was — employer bury its head an not command that an optimistically equates lant with admission struthiously refrain from her “because” of her the sand and that Morse dismissed judgments simply respect, implementing business be pregnancy. With we believe they parturient employee. apply a cause affect a argument, which seeks to black- totally (holding that the PDA legal principle Troupe, mechanical letter fashion, ignore employ mischievously “requires on the mendaci- plays substituting pregnancy, but ... not her absence from ty language by sound for ee’s work”); Evangelical Health Crnokrak v. sense. to, brought pursuant appellant's passing reason- 8. We stress that this case is 7. We note in that the ing hopelessly by, recently circular. Morse demonstrated governed and is Title VII. If actively downsizing firm commitment sought ways Family Leave Act of enacted and Medical operations. to streamline its Conse- 103-3, (1993) (codified at 29 P.L. 107 Stat. surmising quently, there is no basis for 2601-2654) applicable, §§ a differ- U.S.C. were would have failed to realize that the mate- Morse rials ent set of rules would obtain. superfluous manager's position wheth- leave. er or not Smith took 425 (N.D.Ill. Systems Corp., F.Supp. pellant 819 743 for nondiscriminatory reasons. The 1993) (stating permits that “the PDA does not force record that view of the facts. That employers pretend employees discharge place absent the took while appellant the present are their maternity whenever absences are was on possessed leave considera- bottom, by pregnancy”). caused At evidentiary significance Title VII ble that circum- —but requires a employ causal nexus between the stance neither transformed the character of protected employer’s er’s state of mind and the trait the action nor per rendered it se (here, pregnancy). The mere coincidence be unlawful under Title VII. The district court trait tween that and the decision apply therefore did not an legal erroneous may give rise to an of discriminato standard. inference animus, ry at-, Mary’s, see St. III. THE enough

113 S.Ct. at but it is BREACH OF not CONTRACT (at CLAIM per establish a se violation of the statute now, when, justification least as the advanced We turn appellant’s now to the partially employer support the in of employ the tried breach of contract claim. At the close legitimate ment decision is on face its case, of her the trial court took this claim nondiscriminatory).9 jury from the and directed a verdict Morse’s appellant favor. The assigns error. not) up, employee (pregnant To sum an or suffering ordinary runs a of slings risk the A. Standard of Review. and arrows that workplace every suffuse the day goes every she day work and she appeals The court of reviews the stays away. grant Title VII is neither a shield of a judgment motion for as a matter against spectrum novo, this broad employer of ac- of law de applying legal prin same statutory guaranty employ- ciples tions nor a full of inform ruling. the trial court’s ment, may. what Applying come the PDA Municipality as Rolon-Alvarado v. San Juan, (1st appellant Cir.1993). asks would an 1 eliminate em- Accord ployer’s necessity long ingly, business we “examine the evidence and the in defense — recognized cripple reasonably under Title VII —and in- ferences extractable therefrom dustry’s ability manage keep- light hospitable workers most to the nonmovant.” ing nondiscriminatory House, with Fashion Corp., considerations. Inc. v. K mart (1st Cir.1989). That is not the law. Valley See Bowen v. proof, If the Utah, Inc., Camp F.Supp. eyed standpoint, permits from this a reason (D.Utah 1986) VII, (explaining that able only Title as factfinder to reach a conclusion PDA, movant, “preclude amended does not favorable to the then the court must employer articulating legitimate from jury’s nondis remove the issue from the consider criminatory terminating reasons for a woman ation. See id. leave”);

while she was on gen see approach While this does not al Maine, erally Blackie v. low the court credibility to “consider the Cir.1996) case, (suggesting, in retaliation witnesses, testimony, resolve conflicts in or contrary mummify “[a] rule would the status weight evidence,” evaluate Wagen quo”). Adams, mann v. Cir. Here, 1987), requisite district court found the pave way every neither does it for lacking employer’s case, nexus between the sketchy, mind- no matter how to reach the employee’s gravidity. Thus, set and the jury. In the “a mere scintilla of evidence is estimation, discharged ap- court’s Morse enough verdict, to forestall a directed Say, example, leave; employee, charge for employee a Jewish religious fact that the was on he records, maintaining corporate stays home for simply ‍‌​​‌‌​​​‌‌​​‌​​​​​​​‌‌​​​​​​​‌​‌​‌‌​‌​​​‌​​​‌‌‌‌‍employee would have asked the for the absence, a week to observe Passover. In her cirсumstances, memo. In such we think it is employer rummages through the file drawers employer clear that the can fire the particular that she maintains in search of a mem- introducing drugs workplace into the without employer packet orandum. The finds a of her- violating religious Title VII’s ban on discrimina- oin. The would not have had the occa- tion. through sion to look the file drawers but for the Carr, 114 N.H. 323 A.2d or issue as to which a claim especially on only objecting of a contract need belongs provisions to the proof burden House, “sufficiently claims of F.2d at 1088. certain to allow breach party.” Fashion readily, a rea- and to enable to be resolved Merits. B. The damages.” sonably computation of certain (internal Panto, citations A.2d at 264 547 very concur parties —who omitted); Phillips Corp., v. 138 accord Verax Hampshire law agree that New little else— Sawin, 906, (1994); 240, 637 A.2d 910 N.H. contract claim. Under governs the breach of at 926. 323 A.2d law, employment an status of that the at-will prima facie construc relationship is “one of instance, appellant the takes this Forms, Inc., Business Panto v. Moore tion.” pieces of various conversations that bits and (1988). 260, That 730, 267 547 A.2d 130 N.H. Bond, pastes she had with Guimond relationship employment say, unless an is to argues that a rational together, and them duration, it provides for a definite explicitly jury, mulling ensuing patchwork, could the at-will. See Butler presumed is to be offered to reinstate and conclude that Morse Power, Inc., 137 N.H. 629 A.2d Walker following maternity promote her her leave. (1993) prе that the at-will (explaining 93 By continuing employment in the wake her determining for sumption gap a filler “is runs, accept promises, her thesis she of such parties’ contract of em duration when the buy The district court did not ed the offer. expiration”). This to its ployment is silent as remarking in its patchwork, the ore tenus employee critically important when an is by ruling promises that described “the ouster; employer give can challenges her an are of insufficient definiteness to be evidence has been employee one who an at-will —even enforceable, modify em do not the at-will walking papers at performer a stellar —her ployment relationship, are that [and such] reason, time, any or no unless any reason any damages or identifica calculation statute, agreement, bargaining a collective impracticable if not tion of breach would be public policy proscribes aspect or some impossible.” agree with the lower court We particular basis. firing employee on a alleged terms of the contract are too Panto, A.2d at 267. See 547 jury question. indefinite to raise course, employer an an Of may the at-will status of the employee alter by decipher attempting start We Butler, relationship. See employment appellant’s claim. the true nature of the Her 93; Panto, at 267. 547 A.2d Such A.2d at disjointed lawyers tell us that the statements may accomplished be modification sometimes (e.g., worry, we will man made to her “don’t binding offer that if the makes a leave, maternity your age you are on while remaining employee accept by on the can secure,” job “you respon more is will assume Panto, job. at 265. Standard 547 A.2d See return,” your you sibilities on are “wanted govern the cre principles contract formation back”) her created a contract to reinstate ation and construction of such contracts. See following completion Thus, must so the “offer be id. Yet, appellant concedes that leave. require or to its material terms definite as statements did not Bond’s and Guimond’s acceptance such definite terms component of the at-will' alter the durational promises performances to be ren relationship. employment A contract to rein reasonably certain.” by party each are dered posi employee an at-will to an at-will state Eastman, Village Dist. Chasan v. (from immediately tion which she could (1986) (quoting A.2d N.H. cause) contract at all. removed without is no (1932)). § 32 of Contracts Restatement Light v. 883 S.W.2d See Centel Cellular (Tex.1994) that,

Definiteness, beauty, (holding long n. as is fre like best, eye At as the at-will character quently in the of the beholder. any “prom relationship unchanged, degree. In the last remains

it matters involves by employer or analysis, certain ise made either the standard is reasonable period of em- depends on an additional ty, precision. Sawin v. not mathematical Degen Servs., Inc., ployment illusory v. Investors Diversified because it is conditioned upon something exclusively 260 Minn. 110 N.W.2d that is within the proniisor"); yardstick, representa control of the E. Allan Farns- Measured worth, 2.13, (2d 1990) §~ Contracts 2.14 ed. tions made Morse do not stand sufficient ly (explaining promises employment. See, to maintain an at- tall to confer lifetime relationship ifiusory); Butler, e.g., Williamson, (find will are cf. 415 S.E.2d at 275-76 (terming analytically equivalent ing employer's A.2d at 94 statement that it would "take argument reed"). employee insufficiently "a thin care of" definite to employment); Skagerberg only shortcoming alter at-wifi Nor is this the in the Paper Co., supposed Blandin 197 Minn. 266 N.W. contract for reinstatement. The (1936)(finding "per evidence also fails to establish either the that the terms employment," employment," position manent "life nature of the Smith was to assume long proposed pay. gaps "as as the chooses" estab or her seemingly rate of These only contract); reasonably lished an at-wifi Aberman v. foreclose a certain Indus., Inc., 769, computation damages. Malden Mills 414 N.W.2d (Minn.Ct.App.1987)(concluding 771-72 Concluding, do, as we that the al offering you security" the statement "we are leged contract for reinstatement is too indefi only employment indicated an at-wifi rela phase nite to be actionable does not end this tionship). inquiry. of our In stark contrast to the theory proffered by reinstatement her coun IV. THE WRONGFUL DISCHARGE sel, appellant's testimony own indicates CLAIM that she understood the statements made to appel- promises employment The district court terminated the her as ly," "indefinite wrongful discharge constituting abiding lant's claim in advance of and as "commit aegis permanent position trial under the of Fed.R.Civ.P. 56. The ment to a with F.W. appellant presses objection. If, by this, Morse that would never end." suggest she means to employment, a cdntract for lifetime Summary Judgment her claimalso founders. A. The Standard. empower grant Although tangentially The Civil Rules a court to related New summary judgment pleadings, deposi Hampshire precedents exist, "if the the state su tions, interrogatories, answers to and admis preme explicitly court has not addressed the file, together affidavits, employ sions on any, with the contours of contracts for lifetime genuine ment. We are nonetheless confidentthat the show that there is no issue as to moving party adopt prevailing material fact and that the court would view of such judgment generally is entitled to a as a matter of law." matters. See Kathios v. General 56(c). explored Corp., 944, (1st Fed.R.Civ.P. We have Motors 862 F.2d 949 Cir. compen 1988) (explaining court, nooks and crannies of this rule in a that a federal called cases, see, e.g. McCarthy upon dium of v. North to determine state law in the absence of Airlines, Inc., 313, (1st precedent, may look, west 56 F.3d 314-15 direct in-state alia, inter Cir.1995); Amusements, jurisdictions); National Inc. v. to cases in other Moores Dedham, 731, (1st Cir.), Greenberg, 1105, (1st Town of 43 F.3d 735 v. 834 F.2d 1107 Cir. denied, -, 2247, 1987)(similar). regards cert. - U.S. That view such con (1995); Pagano Frank, ordinary, 132 L.Ed.2d 255 v. tracts as out of the and insists that 343, (1st Cir.1993); Wynne 983 F.2d v. an offer for lifetime expressed must be Med., 791, unequivocal Tufts Univ. Sch. of 976 F.2d 793- in clear and terms to (1st Cir.1992), 1030, See, e.g., be enforceable. Williamson v. Mqmt. Co., 30, 1845, (1993); Sharvest 187 W.Va. 415 113 S.Ct. 123 L.Ed.2d 470 Property 271, (1992); Montgomery United States v. One Parcel of Real S.E.2d Rowe v. (Great Neck, Shoreham, R.I.), Co., 627, 268, Harbor New Ward & 437 Mich. 473 N.W.2d (1st Cir.1992); Griggs- (1991); Huff, 960 F.2d Vance v. 568 So.2d Ryan Smith, (Ala.1990); Sanyo Sys. Corp., 115-16 Shebar v. Bus. (1988); Cir.1990); Reynolds 111 N.J. 544 A.2d 381-82 Medina-Munoz v. R.J. (1974). appellant Cir.1990); 130, The 316 A.2d Co., 7-8 Tobacco Inc., the state’s severance offended Drug, urges 48- that her v. Osco Garside (1st Cir.1990), gender-based no useful discrimination. policy against and it would serve jurisprudence here. below, ruled that Judge to rehearse Stahl purpose In the court available, statutory remedy is New when nonce, think it is we For the a com- not entertain Hampshire courts would “summary judg repeat sufficient employee had been plaint that an at-will pierce boilerplate of the is to role ment’s public discharged in violation of wrongfully parties’ proof in assay the pleadings Therefore, appellant’s common policy. actually whether trial is to determine order discharge failed be- wrongful law claim for Thus, Wynne, 976 F.2d at required.” is redressa- pregnancy discrimination cause may the case unless motion end Rule 56 I, op. slip Title VII. See Smith ble under identify genuine issue it party opposing can 9-10. “genu regard, In this as to a material fact. point on the means that the evidence ine” conclusion, the district reaching drawing jury, favor that a such reasonable heavily teachings of upon the court drew inferences, in the resolve the fact could able 120 N.H. Howard Dorr Woolen nonmoving party. See urged manner appellant strives 414 A.2d 1273 token, Parcel, By like 960 F.2d at 204. One Hampshire New to convince us that a later fact has that a contested “material” means ease, Atlantic & Cloutier Great Pacific the outcome of the suit potential to alter the (1981), Co., 121 N.H. 436 A.2d 1140 Tea dispute if over it governing law the under the reading court’s of defenestrates the district See favorably to the nonmovant. is resolved persuaded. Howard. We are not id. Howard, alleged that he plaintiff In the summary judgment record When the age. discharged it compiled the court must scrutinize had been because is trial hospitable party to the construed light Hampshire Supreme most Court “in the New indulging summary judgment, all opposing Monge, A.2d decision its seminal favor,” party’s inferences that reasonable apply only to a where em- “to situation disregard but Griggs-Ryan, 904 F.2d discharged performed he ployee is because “conelusory improbable infer ing allegations, public encourage, or policy an act that would ences, speculation,” Medi unsupported and policy public that would refused to do which na-Munoz, genuine at 8. If no Howard, A A.2d at 1274. condemn.” discernible, then material is issue of fact age this “narrow discharge due to fell outside ordinarily follows. disposition brevis remedy “proper category” inasmuch the as age discrimination for an action for unlawful summary judgment Because the by (listing Id. state provided is statute.” reasoning opposed requires legal as standard remedies). statutory In Clouti and federal factfinding, appellate review to differential er, cases, holding synthesized these the court plenary. summary judgment orders is judicially created within that to come Garside, 347; Pagano, exception plaintiff “must show public policy at 48. motivated bad the defendant was faith, malice, terminating B. The Merits. or retaliation employment,” A.2d at and [her] controls Hampshire New law [s]he was dis must also “demonstrate discharge claim. pendent wrongful Smith’s performed an act that charged [s]he because law, an at-will even Under encourage, public policy or refused would for a reason that offends cannot be cashiered con something public policy would do employment public policy such an because answer, demn,” at 1144. did not id. Cloutier interest of the “is not in the best decision however, question such a of whether good con system public or the economic where, here, public as cause of action lies con a breach stitutes in a statute that policy at stake is codified tract,” 114 N.H. Monge v. Beebe Rubber provides private right itself of action to V. CONCLUSION remedy transgressions.10 go We need no further. On the faetbound claim, Title VII presents this ease a close recently A decided case import makes the question. end, however, In the we must supreme of the state court’s earlier decisions uphold the district court’s judgment because pellucid speaks directly question the standard generous of review is and there that confronts us here. Wenners Great enough evidence in the record support Inc., Beverages, State 140 N.H. 663 A.2d findings. the trier’s On the two common law (1995), plaintiff relied on a section of claims, our easier; task is appreciably both Bankruptcy public Code to establish a questions law, claims fact, raise not policy against the employ termination of his the district person court —albeit in the of two ment. See id. at 625. The court held that different district judges correctly resolved — plaintiff may pursue “[w]hile a not a common them. remedy legislature law where intended to Affirmed. replace action,” statutory it with a cause of wrongful proceed action discharge could BOWNES, Senior Circuit Judge, statutory provision the relevant pro did not concurring. private vide a cause of action for its violation. (internal omitted). Id. citations We deem Although compelled I am by the deference holding dispositive to be of Smith’s cont due a district findings court’s of fact to con- ention.11 result, cur in the final I separately write because I am troubled analysis used only Title VII public codifies the deciding the Title VII majori- claim. The policy against gender-based ty applauds discrimination the district fully court’s failure to (including, to, but not pregnancy limited analyze dis “prudential.” I, Smith’s claims as crimination) but private right however, also creates a am convinced that produced Smith of remedy action to policy violations of that direct evidence of intentional discrimination and limns a procedure pursuing mature for and that the district court obligated to Wenners, such an action. Under fully analyze plaintiffs the exis case under the frame- remedy precludes tence of such a appel the work of Price Hopkins, Wаterhouse v. 490 lant, in case, the 228, circumstances of this 1775, from U.S. 109 S.Ct. 104 L.Ed.2d 268 asserting (1989). a wrongful common law claim for Additionally, majori- I think the that discharge. It follows that the ty district court mischaraeterizes the law relevant the acted impeccably granting judg in summary requirement causation under Title VII and ment on this claim.12 position-elimination Morse’s Its defense. Cloutier, argued 1179, defendant Corp., (D.N.H.1992), the that there F.Supp. 794 1187 expression otherwise, must be a statutory public policy, of a consigns hold Wenners them to the generalized a public that poli- scrap assertion of a heap. cy (loosely statute) based on a federal is insuffi- cient public as a matter law policy of to meet the acknowledge apparent 12.We some tension be- n prong wrongful discharge of a claim. See ruling Clouti tween opinion and our earlier er, 436 A.2d at disagreed, Inc., The 777, 1144-45. court Realty, Chamberlin v. 101 observing (1st that it holding Cir.1990). had "not restrict[ed the] 786-87 We set to one Chamberlin involving public Howard to policy First, situations a pair side for a of parties reasons. there enunciated in a policy exceptions Public statute. did not statutory preclusion, the issue raise panel of giving wrongful discharge rise to may actions and the ond, did not address that issue. Sec- non-statutoiy also be policies.” based on Id. at dispositive Wenners makes a difference. language 1144. This means no highest more that a than When the disposes court of a state of an plaintiff statutory provision prove can a utilize contrary issue of law state to the resolution of the public policy; existence of court, suggested it does not issue theretofore a federal sophisticated address the more ruling issue of give way. whether the latter must Williams v. plaintiff may rely provides 588, on a (1st Cir.) statute that Eng’g Ashland 592 remedy for its (permitting violation. principles relaxation of stare decisis "controlling authority, when nounced,” subsequently an- 11. To the Kopf extent that decision), either v. Chloride an undermines earlier cert. Electronics, Inc., 1183, Power F.Supp. denied,-U.S.-, 882 51, 1189- 116 S.Ct. 133 L.Ed.2d (D.N.H.1995), 90 Godfrey (1995). or v. Perkin-Elmer 16 430 “directness” court for its praising the district as an erroneously be viewed could opinion “largely bypassed differ- having and for as a cover that defense

invitation use evidence ential direct or take evidence/circumstantial against women who discrimination to cir- A decision tamisage.” district court’s maternity leave. plan to take Supreme analytical processes cumvent precedent require should circuit Court Analytical Process Court’s The District I. criticized, praised. My first undisputed. are facts The basic Title VII particularly where This is true court’s ab- district from the arises concern discrimination concerned. The cases are plaintiffs claim. analysis of breviated Kathy face plaintiffs like that analyt- has established two Supreme Court frequently as it is workplace is as subtle reviewing Title courts frameworks ical recognition of this hard It is in invidious. evidence follow. Where the claims must VII Supreme Court established truth “direct,” Water is Price at trial produced courts, my analyticаl process which district Fields applies.13 See house framework See, e.g., follow. opinion, required are Cir.1992), 49, Univ., 51-52 966 Clark 801, at 93 Douglas, 411 U.S. S.Ct. McDonnell 1052, denied, 113 S.Ct. 506 U.S. rt. ce (“[I]n implementation [em at 1823-24 (1993); Cumpiano v. 976, 122 L.Ed.2d decisions, abundantly clear it is ployment] 148, 152 P.R., 902 F.2d Banco Santander discrimination, ... no VII tolerates Title Univ., Cir.1990); v. Harvard Jackson otherwise.”); see also Price Water or subtle (1st Cir.), 498 U.S. house, at 1802. at 109 S.Ct. U.S. 112 L.Ed.2d 111 S.Ct. for the jurisprudence stands The Court’s indirect of discrimination If the evidence em the unlawfulness principle circumstantial, burden-shifting frame- or in Title' typically challenged ployment actions Green, Douglas Corp. v. work McDonnell process exposed through a is best VII eases 36 L.Ed.2d 93 S.Ct. 411 U.S. Burdine, See, inquiry. e.g., 450 U.S. Douglas (1973), McDonnell governs. See (“In a Title n. 8 255 n. Green, 792, 93 411 U.S. S.Ct. Corp. v. case, burdens and the the allocation of VII (1973); Dep’t Texas Com L.Ed.2d in [requirement] [are] prima ... facie case Burdine, 248, 101 munity sharpen inquiry Affairs progressively to tended (1981); Mary’s St. 67 L.Ed.2d S.Ct. intentional question factual into the elusive Hicks, 502, 113 509 U.S. S.Ct. Honor Ctr. discrimination.”). by that I stand Because (1993). basic 407 These 125 L.Ed.2d ordinarily suggest a re I principle, would must, followed, by they as rules have been as this. mand a case such in See, e.g., Cumpiano, 902 this Circuit. however, conclusion, I come to the have 467; Jackson, 152; F.2d at Chamber 900 at meaningful in this not be that would remand n. 7. Realty, 915 F.2d v. 101 782 lin agree not that I with case. This does mean Cir.1990). finding that the evidence court’s the district gender I compelling. found that Yet, by court was not produced district by part in the I am bound played no decision in the result because concur discrimination precedent. And employment Supreme with- and circuit plaintiffs Court to terminate the my area, unfairly in precedent, determining there was direct in that whether this out plain- imposes heavy too a burden on opinion, or even Price Waterhouse evidence under in ultimate issue trying prove Douglas. See Jack- tiffs mentioning McDonnell employer in- that the finding of discrimination eases: son, (holding that F.2d at 467 against on the tentionally discriminated renders McDonnell direct evidence VII-protected trait. I a Title believe ma- basis inapplicable). The of Douglas framework enough produced has evidence analytical that Smith omission jority compounds this adopted O'Connor’s court first Justice does 03. plurality opinion Price This in Waterhouse The required in that direct evidence discrimina- conclusion require direct evidence of not itself Univ., v. Harvard appears cases in mixed-motives Jackson direct evidence tion. The reference Cir.1990), that case. concurrence in Justice O’Connor’s See, 270-74, L.Ed.2d 104 U.S. 111 S.Ct. at 1801- e.g., meet her initial burden under Price today’s law, Water Under applicable however, a Douglas, or agree McDonnell but plaintiff producing house direct evidence of discrim- plausible it would have been for a factfinder ination under Price may Waterhouse have a proved position- conclude Morse its remedy. Title VII Id. at 1565 n. 24. The preponderance elimination defense Rights Civil Act of 1991 “modified the Price or, alternatively, the evidence that the facts Waterhouse scheme” and made “mixed-mo- prеtext. were insufficient to established show tives treatment ‍‌​​‌‌​​​‌‌​​‌​​​​​​​‌‌​​​​​​​‌​‌​‌‌​‌​​​‌​​​‌‌‌‌‍more plaintiffs.” favorable to Although it adhering did so Fuller, without to the 1142; 67 F.3d at see Rights Civil Act process requires, Title VII the district court 102-166, § Pub.L. 105 Stat. and, decided the ultimate issue the case (1991) (codified at 42 U.S.C. although it, I disagree with I say cannot 2000e-2). § Section provides 107 of the Act clearly decision erroneous. that Title VII is violated whenever an em- ployer takes sex pregnancy account, or into II. Direct Evidence Under Price Water- regardless of whether other considerations house independently explain employ- the adverse Id.; ment decision. § see U.S.C. 2000e- light my majori- concurrence 2(m) (“[A]n unlawful practice is ty’s holding ultimate on Smith’s Title VII when complaining established party dem- claim, pertaining issues to the nature of the race, color, sex, onstrates religion, or produced are, evidence Smith at trial admit- origin national motivating was a factor for tedly, Nevertheless, moot. I explain want to any employment practice, even though other my belief produced that Smith direct evi- factors also practice.”). motivated the Pre- and that dence Price Waterhouse controls vailing plaintiffs, mixed-motives very at the ease. important This is for two reasons. least, are now entitled to declaratory and First, availability of direct evidence de- injunctive relief attorney’s and fees. See analyzed termines whether a case should be Kerr-Selgas Airlines, v. Am. under Price Waterhouse or McDonnell (1st Cir.1995) (citing § 42 U.S.C. 2000e- Douglas. Direct evidеnce renders (where 5(g)(2)(B)) in a mixed- Douglas McDonnell inapposite framework proves motives case that it would have made imposes a proof heavier burden on the decision, the same the prevailing plaintiff is employer. Phipps, Fuller v. attorney’s fees, entitled to declaratory (4th Cir.1995). injunctive relief, damages but or Second, the determination whether the reinstatement). Thus, what di- constitutes produced direct, evidence though trial is rect evidence is a critical issue for Title VII procedural terms, cast affects the substan- plaintiffs. tive outcome in Title VII cases. See Debo- Malamud, C. rah The Dispa- majority Last Minuet: repeated makes references to Hicks, rate Treatment 93 Mich.L.Rev. “smoking gun” Using evidence. this term After (1995) (“Title jurisprudence only VII obscures the fact that this Circuit has cloaks substance in garb’ pro- the of yet clearly ‘curious to define what constitutes direct cedure.”). This import gender observation is of less evidence of prior discrimination. On because, “[djireet Smith’s case at the time the occasions we have that held evi- giving events occurred, rise to which, itself, Smith’s suit dence is evidence in and of provided the law employer See, that an shown to a discriminatory e.g., animus.” shows unlawfully Jackson, have But, discriminated could Ti- avoid 900 F.2d at 467. this reason- liability by VII demonstrating by tle pre- ing a is circular and not does further under- ponderance of evidence the standing O’Connor, that adverse em- of the term. Justice ployment decision would Waterhouse, have been the same concurring opinion her in Price if played even discrimination had no role. negative, explaining defined the term in the of Hawai’i, v. Lam Univ. ‘stray that direct evidence re- “exclude[s] (9th Cir.1994). words, 1564-65 In workplace,’ by other direct marks in the ‘statements non- discrimination, more, decisionmakers’, evidence of without by was or ‘statements decision- enough impose liability to on Morse. Id. process makers unrelated to decisional the ” dis- also direct Waterhouse, were evidence at documents Price itself.’ (O’Connor concurring). crimination. 1804-05 statements included circuits have pro- Other Smith the evidence that I contend in the process therefore, of the decisional and, made outside war- was direct duced trial evidence. of direct definition Price Water- application full ranted post-discharge held Seventh Circuit shows The evidence framework. house by supervisor were direct a statements made requested and re- pregnant, was Smith bias, they though were age even being After evidence maternity leave. unpaid ceived express intent to discrimi- of an weeks, not reflective notified Smith on leave several Indus., Inc., 23 PPG Guimond, v. that she nate. See Robinson manager, general Morse’s Cir.1994). (7th Similarly, 15, 1989, May a on to work to return wanted that state- has held Eleventh Circuit ap- planned. Guimond than earlier week parties employer to third an ments made and assured time the earlier start proved discriminatory animus. also are direct evidence job She was secure. that her Smith Inc., Canners, Beveragе In EEOC v. to have she intended whether asked Smith (11th Cir.1990), court children; that she F.2d Smith indicated additional racially made biased statements found that did. plant were his by supervisor to workers in a 2, 1989, day this conver- May after On a hostile of racial animus and direct evidence occurred, questioned also Guimond sation under Title VIL environment sister, Vendasi, future about Smith’s Smith’s Smith statements both Gui- Guimond’s plans. confronted childbearing Smith of di- fall within definition rumor that Vendasi well this behavior and mond about by cases such as established rect returning to work because evidence would not she Beverage Guimond Canners. child. Beshears and stay home with her she had decided personnel solely responsible for Morse’s knowledge the was about denied Guimond Smith’s questions about job decisions. Her Smith’s rumor and reiterated stray nor childbearing plans were neither secure; guarantee two repeated this she future about assurances, and evinced concern random Despite these Gui- days later. began 11,1989, Additionally, pregnancy. Guimond May one Smith mond terminated childbearing asking questions about Smith’s and four last conversation after their week key was a during what she admits plans to return days was slated before Smith Finally, the facts show period. permission to tell decisional requested work. Guimond timing to terminate of the decision to work that the to return failed people May Troupe v. suspicious. stay for Smith was to care decided to home because she Cf. (7th Cir.1994); Stores, Dep’t give it. child, refused but Smith her Hollingsworth Corp., 996 F.2d Josey holding that statements precedent There is (3d Cir.1993). two weeks of Within to Smith and Ven- made like those Guimond more plans to have learning Smith’s about For exam- direct evidence. dasi constitute children, decided to terminate Guimond Circuit, made Eighth statements ple, Smith, repeatedly though as- even she had evidence of an can be direct job was secure. sured Smith that discrimination, key decision- during made Asbill, is direct of discrimination This evidence process. In Beshears al the status (8th Cir.1991), if it does not reach and clear even court held that gun. That some inferences statement, smoking employ “older employer’s oral and done from what was said changed must be adapting to drawn problems ees have not make age conclusion does to reach this direct policies,” was evidence new indirect. As the Seventh F.2d at 1354. Two Smith’s evidence discrimination. decision, Visser recognized in its 1991 later, Circuit expanded its Beshears years court Assoc., 655, Inc., Eng’g Ra v. Packer written statements. holding to include (7th Cir.1991), Inc., knowledge is inferen- Mills, “all 997 F.2d dabaugh Zip Feed mind-readers (8th Cir.1993), judges are tial.” Because not that written 449-50 held of a Title VII into the mind planning and cannot reach in corporate included statements defendant, 153; a certain amount Lipsett of inference- 902 F.2d at of P.R., v. Univ. case, (1st Cir.1988). drawing necessary in whether the evidence is direct or ulti indirect. The Smith’s appeal reiteration these facts on disparate mate issue in treatment cases— complied Supreme with Court and circuit whether intended discrimi precedent. proved that she-was fired by purely nate —cannot be established direct though even she was manager an excellent Sullivan, evidence. See Charles A. Account and that her duties continued to per ing Proving Dispa For Price Waterhouse: by formed employees. view, other my In VII, rate Under Title Treatment 56 Brook. this is all Douglas’ McDonnell prima facie (“ 1107, 1138(1991) ‘[D]irect L.Rev. evidence’ See, requires. ease burden e.g., Byrd v. Ro exist, of intent cannot at least in the sense of nayne, Cir.1995) 61 F.3d which, believed, evidence if would establish (“[T]he required prima facie showing is not discriminate.”); the ultimate issue of intent to burdensome.”) especially (citing Woodman v. Tyler Corp., Bethlehem Steel Corp., Haemonetics (2d 1176, 1183-84 Cir.), 506 U.S. Cir.1995)). The district court should have (1992). 121 L.Ed.2d 46 shifted to Douglas the McDonnell frame work finding before adhering than Smith’s

Rather to the colorful but evidence defi cient. meaningless requirement smoking gun, of a I

think adopt we should a definition of direct III. Under Title Causation VII in evidence Title VII cases which satisfies negative requirements minimum Justice In addressing question of causation in O’Connor set out Price Waterhouse: “ex- disparate cases, treatment majority ‘stray workplace,’ remarks elude[s] stresses that a “coincidence” preg- between nondecisionmakers’, ‘statements or ‘state- nancy leave an employment decision ments decisionmakers unrelated to the prove does not intentional discrimination. It ” process decisional itself.’ Price Water may cases, not all but it arguably did in house, 490 U.S. at 109 S.Ct. at 1804-05 majority’s this case. The discussion cau- (O’Connor concurring). In accord with the completely sation disregards possibility. Rights pre Civil Act of this definition Its blanket pregnancy contention that does serves the mixed-motives ease aas viable give plaintiffs not immunity” “total from ad- option in Title VII suits. Michael A. employment verse ignores actions Cf. the extent Smoke, Zubrensky, Despite The There Is No maternity gives to which employers leave an Requirements Gun: Direct Evidence In opportunity discharge women who take Employment Mixed-Motives Law express leave or who an After intention Hopkins, Price Waterhouse v. 46 Stan.L.Rev. to have one or more children. It high lowers the hurdle of arguably posi- shows evidence that the “smoking gun” evidence to reasonable limits tion Smith held would have been eliminated plaintiffs so discrimina- if even Morse had preg- not considered her protections tion can receive all the cases Title nancy or pregnant intention become in the give. VII was intended to necessarily future. It does follow from my this, however, Even definition of Price Waterhouse Smith would have been rejected, however, direct evidence is it is fired had not considered her Morse materni- ty irrefutable that Smith made out a prima facie leave or desire have more children. case of discrimination under McDonnell their conversations before Smith took mater- asked, Douglas: being leave, Bond, directly nity after so president, Morse’s and Gui- expressed she preg- intention to eliminating become mond discussed materials future; nant performance manager in the thаt her position, but not Smith. The rec- was satisfactory; work more than initially she ord shows that Bond both intended repeated was terminated after assurances to retain Smith because of her excellent skills “secure;” job that her that her and that he that Smith would admitted still performed by compar- continued to be employed duties be at Morse had she not taken ably qualified Cumpiano, individuals. maternity leave. Troupe such as absences. Cases or even lied unexcused to disclose refused Had Smith (7th children, 20 F.3d 734 May Dep’t Stores to have more v. intention her about Cir.1994), Evangelical v. Health job Crnokrak have a at Morse. probably still she would (N.D.Ill. Corp., F.Supp. 737 very Systems con- was that Guimond The facts show Bacon, Inc., 1993), Allyn & absence and Johnson disruption Smith’s about the cerned Cir.), cert. would have 731 F.2d 64 suggest that she cause and

would (1984), 1018, 106 83 L.Ed.2d 369 disruption in the S.Ct. steps to avoid such taken discharge, position not elimination. ignores involved majority completely The future. pre-maternity employee’s expressed Troupe, desire to that probability Smith’s by her tardi motivating factor was motivated leave dismissal more children was have in frequent temporary and absences. Cmokrak discharge that her ness in her terminated after employ- plaintiff who was maternity gave leave volved on absence returning maternity leave later than to dis- from opportunity to find a reason an er originally expected, whereas Johnson dealt evidence charge I contend her. employee supervisory lacked an who produced sufficient to establish with was being placed fired after skills and who was and causation. intent poor work attitude. probation on because of a majority gives examples the The two majori position-elimination case the The one a causal connection the need for illustrate cites, ty Island Univ. Pearlstein Staten employ- adverse pregnancy and the between (E.D.N.Y.1996), is Hosp., F.Supp. disparate treat- challenged action ment similarly inapposite; adoption, it involved not unfair. inapposite are both ment cases gave and an who short pregnancy, opinion analogizes 9 of the court’s Footnote maternity need for leave. And notice of her during maternity leave to Smith’s dismissal case, showed that the in that the evidence discharged while on reli- employee who is an accidentally overpaid, that her plaintiff was gious leave because heroin is discovered employer experiencing financial difficul that in both cases the her desk. It is true ties, and that she had received no assurances employer to employee’s absence enabled the security job. of her about the discharge. discovery resulting in make the analogy breaks down. But here directly address the These cases do In contrast presented issues here. causation illegal; its possession of heroin The Pearlstein, in this case shows the evidence employee’s desk was a fact presence in the repeated received assurances that Smith (although expla- an could not be refuted job, she received about her the raise made). might employer did nation maternity taking leave was intention- before as to the not have to make determination al, termination was not due and that Smith’s capa- employee’s work or her quality of the hardship. Additionally, evi- to economic had fired. In the case of bilities. She to be fired for dence does not show that Smith was however, leave, maternity would attitude, had ever been on poor that she judgment make a as to whether have to supervisory probation, or that she lacked good eliminating position made business regular fact that Smith received skills. The employ- as the sense. Considerations such people at the promotions and that few Morse performance and future childbear- prior ee’s level education or ex- plant exceeded her employer’s ing plans part of the would be any suggestion perience belies that Smith’s At least position-elimination decision. par. performance and skills were below would be “because of’ part, that decision It could not pregnancy, present and future. Finally, permission for her Smith received majority’s hypo- be made in the vacuum the leave, maternity the duration of shortened presupposes. thetical leave, before she could and was fired work, majority not before she left. Smith’s Similarly, the cases the cites to return leave, thus, pose problem did not view obscure the causation issue support its way Troupe that the employees for Morse the same unfairly compare Smith to unexpected illness or the Cmok- poor employee’s placed probation are because who plaintiff’s extended leave did their discharged rak attitudes or who are because employers. defense, Moreover, The crux of Morse’s the conclusion that Morse re- all, after is that Smith fired duced management because her its staff is not supported had no not, absence effect whatsoever on Morse’s evidence. Morse did as the exposition operations. court’s suggests, the facts re- management duce its team from seven to point simple: just My pregnancy as does three. The majority reached this conclusion fully plaintiffs shield from adverse em- by eliminating Bond and Guimond from its actions, ployment judgment business or ne- count, final though they even each donned cessity totally does not employers immunize one of the two hats formerly by Darryl worn from Title majority’s VII’s The sanctions. Robinson, Damar’s founder and chief officer. discussion causation understates im- this It erroneously also included Smith in Da- that, portant point. I believe more often original management team, mar’s even not, than pregnancy correlation between though she did not management have a title position and during maternity elimination at that time. And it failed to include the two leave will exist. It is to think naive that an manager positions assistant count, in its final employee’s would not take preg- though even holding individuals thоse or nancy pregnant intention to become in the management slots did have titles. If the during future into consideration process individuals excluded majority’s from the cal- determining employee’s whether posi- added, culations are the size of Morse’s man- tion should be eliminated.14 agement team was the same at the end itas beginning was in the —seven.15 The IY. Position-Elimination Defense The facts mainly demonstrate that Morse reorganized management its team. It con- majority upholds district court’s positions solidated titles, and eliminated but finding that position-elimi- Morse made out a did not decrease the management. size of its grounds: nation defense on two that Morse it plausible Because would have been for the management-level reduced its staff and that district interpret court to reorganization employees Smith’s duties were shifted who elimination, position as I concur in the court’s already payroll. were on the Though Morse holding. however, I do not agree, that reor- I holding concur in the arguably that Morse ganizations of the sort Morse carried out will proved the necessary facts to rebut Smith’s enough be to rebut claims of intentional dis- gender claim, discrimination I think the every me, crimination in case. For whether scope position-elimination defense is clearly district court was erroneous its considerably majori- more than the narrow findings on this very issue was a close call. ty’s interpretation of suggests. the facts company That a manage is able to in the holding The court’s that Smith wаs not key employees absence of one of its replaced, will not merely her duties were trans always proof nondiscriminatory of a pur- employees, ferred to other Morse is based on pose, contrary to opinion what the court’s holding our LeBlanc Great Am. Ins. implies. so, every Were that woman Cir.1993), who 6 F.3d 836 cert. de —nied, took -, leave would do so at risk of U.S. job. losing L.Ed.2d 72 LeBlanc holds am, course, (sheet 14. Family metal); I aware that the (engineering); Seeger Bickford 103-3, Leave Medical Act of (sales); (materials). P.L. 107 Stat. and Smith I do not include (1993) (codified 2601-2654) §§ at 29 U.S.C. they Lane and Hickman in this number because addresses number of the concerns I raise. immediately were fired almost after Damar's ac- Act, however, apply pre-1993 That does not quisition, partially poor perfor- due to their not, moreover, prob- cases does correct the fired, mance. After Smith was upper- Morse's perceive majority opinion’s I analysis lems in the management level still included team seven indi- posture towards Smith's discrimination (president); (general viduals: Bond Guimond claim. manager); (operations); Paradis Shevenell (sales); (assis- (manufacturing); Seeger Lapanne Damar, Post-acquisition upper-lev- Morse's (assistant manager); manag- tant and Hoffman management el following team included the sev- er). people: (president); en (general Bond Guimond manager); (machining); Paradis Shevenell force, period inquiry for de- the relevant is not defeated defense

position-elimination formеrly per- only termining the duties employee was whether that an by claim the by some- by plaintiff [was] “another a were assumed formed “replaced” because in plaintiffs already performing the duties related work under assigned perform one duties, maternity or the during [because] to other LeBlane should not be addition among other exist period inquiry redistributed must [was] work relevant leave. The related already performing employees ing began. Using time that leave be before 846; see also Barnes at work.” 6 F.3d maternity period the woman is on leave when (6th Inc., GenCorp., perverse incentive to discriminate creates a Cir.), by firing them when against pregnant women 211, 112 L.Ed.2d jobs it they at their and when will are not always that else is be true someone almost defense com- that Morse’s To the extent case, if performing their duties. In this all, it does so on the ports LeBlane with pregnant and taken had not become Smith the second. In prong, not of the first basis leave, maternity a valued she would still be reorganization to first analogizing Morse’s employee. occurred after Morse reorganization which gives majority opinion firing, the Smith’s V. Conclusion prong, the ‍‌​​‌‌​​​‌‌​​‌​​​​​​​‌‌​​​​​​​‌​‌​‌‌​‌​​​‌​​​‌‌‌‌‍second impression that LeBlane’s requirement, can be satisfied work” “related that an idea’s James once said William plaintiffs duties demonstrating that a “validity process of its valid-ation.” is the working to someone simply transferred were Accordingly, I concur in the outcome reached disagree. I I contend company. in the same case, рrocess employed, in this but not the requirement LeBlane’s related-work that disagree pregnan- I with the view of because employer proves cannot be met unless majori- cy discrimination cases taken employ- plaintiffs duties to it shifted only gender ty. plausible I think it was already performing some of ees who were employ- not the motivation for the adverse or, least, duties plaintiffs duties Smith, against action taken not “true.” ment in very This did not occur similar. were only agree position And I elimination ease. cases, can in Title VII not that defense pro- me, reorganization, Smith was every In the first case. For it will be a defense manager result, and asked to reaching moted to materials process employed of the duties she had officially assume some hypotheticals drawn and which includes the because of the inad- already performing been examples given, matters. managers. Smith at that

equacies of other which, my opinion, duties

time assumed under LeBlane. related work

constituted

contrast, reorganization did not the second managers responsibilities to

shift Smith’s job. already performing been who had STATES, Appellee, UNITED fired, managers those took After duties; essentially new on what were that Paradis and

majority’s own contention KELLEY, Defendant, Edward C. experienced than were far more Shevenell Appellant. responsible for the technical as- Smith and No. 95-1658. pects business bears this out. of Morse’s they performed those duties for some That Appeals, Court of United States only period was fired was be- before Smith First Circuit. was on leave. The cause Smith Heard Dec. 1995. explanation nonpregnancy-based for their ad- Decided Feb. responsibilities did not kick until ditional firing. after Smith’s against pregnan- protections

If Title VH’s

cy-based to have discrimination are

Case Details

Case Name: Smith v. F.W. Morse Co., Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 12, 1996

Citation: 76 F.3d 413

Docket Number: 95-1556

Court Abbreviation: 1st Cir.