Luongo v. Britton ( 1995 )

USCA1 Opinion

          November 22, 1995     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          No. 95-1341



                                  STEPHANIE LUONGO,



                                Plaintiff - Appellant,



                                          v.



                           LAWNER REINGOLD BRITTON, ET AL.,



                               Defendants - Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                                Lynch, Circuit Judge,
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                            and Casellas,* District Judge.
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               Stephanie H. Luongo, with whom Howard M. Fine and Donna Zils
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          Banfield were on brief for appellant.
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               Thomas P. Billings, with whom Sally & Fitch was on brief for
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          appellees.







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          *  Of the District of Puerto Rico, sitting by designation.

























                    Per  Curiam.   Stephanie  Luongo  sued Lawner  Reingold
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          Britton   &  Partners,   her  former   employer,  for   pregnancy



          discrimination, alleging  she was  targeted for layoff  under the



          company's  downsizing plan  because both  she and  her supervisor



          were pregnant at the  time and their pregnancy leaves  would have



          overlapped  by  approximately one  month,  crippling their  small



          department.   Lawner  Reingold filed  a summary  judgment motion,



          properly supported by several affidavits, arguing that the reason



          Luongo was laid off was not discriminatory, but merely part  of a



          third wave of dismissals designed to lower the operating costs of



          the advertising agency  and make it leaner  and more competitive.



          After  examining the  case  in light  of  the analytic  framework



          established by  McDonnell Douglas  Corp. v.  Green, 411 U.S.  792
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          (1973),  and  its progeny,  the  district  court granted  summary



          judgment.   The court found that Luongo established a prima facie



          case of  sex discrimination,  that Lawner Reingold  articulated a



          legitimate,  non-discriminatory  reason for  the job  action, and



          that Luongo  then failed to  introduce sufficient evidence  for a



          rational fact finder to  conclude that the employer's articulated



          reason  for  her  discharge  was a  pretext  for  discrimination.



          Unhappy  with the  district  court's decision,  Luongo filed  the



          present appeal.



                    We review the summary judgment  ruling in this case  de



          novo "to  determine whether the   pleadings, depositions, answers



          to interrogatories, and  admissions on file,   together with  the



          affidavits .  . . show[s]  there is  no genuine issue  as to  any





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          material fact and [that] the moving party is entitled to judgment



          as a matter of   law."  Simon v.  FDIC, 48 F.3d 53, 56  (1st Cir.
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          1995).   We examine  the evidence in the  light most favorable to



          plaintiff-appellant to determine whether there is a genuine issue



          of  material  fact which  would warrant  a  trial on  the merits.



          V lez-G mez  v. SMA Life  Assurance  Co., 8 F.3d 873, 874-75 (1st
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          Cir. 1993).   A  "genuine"  issue is  one  that properly  can  be



          resolved only by a   finder of fact because it may  reasonably be



          resolved in  favor of either   party.  A "material"  issue is one



          that might affect  the  outcome of  the suit under  the governing



          law.  Anderson v. Liberty Lobby,  Inc., 477 U.S. 242, 248 (1986).
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          The  nonmovant may  not  defeat a  properly supported  motion for



          summary  judgment  by relying upon  mere allegations or  evidence



          that  is  less than   significantly  probative.   Id.  at 249-50.
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          Rather, the  nonmovant  must present definite, competent evidence



          to rebut  the motion.  Libertad  v. Welch, 53 F.3d  428, 435 (1st
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          Cir. 1995).



                    We agree with the district  court that Luongo failed to



          introduce  sufficient  evidence for  a  rational  fact finder  to



          conclude  that the employer's  asserted non-discriminatory reason



          for her discharge was a pretext for discrimination.  See Smith v.
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          Stratus   Computer,  Inc.,  40  F.3d   11,  16  (1st  Cir.  1994)
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          (explaining employee's  burden on summary judgment  once employer



          articulates  a  legitimate,  non-discriminatory  reason  for  its



          decision).









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                    Therefore, after close perscrutation  of the briefs and



          the  record, we affirm on substantially the grounds stated in the



          district court's opinion.



                    Affirmed.
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