Bramble v. American Postal ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1683
DALE BRAMBLE,
Plaintiff - Appellant,
v.
AMERICAN POSTAL WORKERS UNION,
AFL-CIO PROVIDENCE LOCAL,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Godbold,* Senior Circuit Judge,
and Barbadoro,** District Judge.
Kevin J. McAllister, with whom Brennan, Recupero, Cascione,
Scungio & McAllister was on brief for appellant.
Paul F. Kelly, with whom Anne R. Sills and Segal, Roitman &
Coleman were on brief for appellee.
January 27, 1998
* Of the Eleventh Circuit, sitting by designation.
** Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Dale F. Bramble sued his
TORRUELLA, Chief Judge.
employer, the American Postal Workers, AFL-CIO, Providence, Rhode
Island Area Local, (the "Union") under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. 621-34, in the
Federal District Court of Rhode Island. He alleges that the
Union discriminated against him on the basis of his age when it
adopted a new salary structure for his office of Local Union
President, effectively eliminating his salary. Bramble brought
this suit under both a disparate treatment and a disparate impact
theory of recovery. The district court dismissed the case on
summary judgment and this appeal followed. See Bramble v.
American Postal Workers Union, AFL-CIO, 963 F. Supp. 90 (D.R.I.
1997). We affirm.
BACKGROUND
BACKGROUND
The following facts are essentially undisputed.
Bramble, a United States Postal Service ("Postal Service")
worker, was first elected to the Union presidency in 1974. For
eleven years thereafter, he held the post while working full-time
at the postal service. In 1985, the Union voted to make the
presidency a full-time position. The Union paid Bramble a $3,000
stipend plus the equivalent of his old salary. In spite of the
fact that he was no longer drawing a salary from the Postal
Service, Bramble maintained his status as an active Postal
Service employee as he continued to hold the presidency.
In November 1991, Bramble was re-elected as the Union
president in a close three-way race in which he garnered only 35
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percent of the vote. The year following his re-election, Bramble
accepted an early retirement package from the Postal Service. At
that point, Bramble began drawing a federal pension in addition
to his full salary as Union president.
In January 1993, with the majority of the Union
opposing Bramble's administration, an amendment to the Union
constitution was adopted by a vote of 34-23. The amendment
revised the salary structure of the Union presidency from a fixed
rate to a rate that was tied to the president's salary as an
active Postal Service employee. According to this "active pay
status" rate, any Union president receives a $3,000 stipend in
addition to the salary he or she would receive in accordance with
his or her active status with the Postal Service.1
Pursuant to the new policy, more experienced postal
workers serving as president receive higher salaries than less
experienced workers holding the same position, while presidents
who are retired or on disability receive a mere $3,000 in annual
compensation. Because Bramble was retired, the salary he was
receiving in addition to the stipend was eliminated. It is also
undisputed that Bramble was disliked by many in the union, and
that the amendment was intended by many, if not all, of its
supporters as a means to force Bramble's resignation. On July 1,
1993, Bramble did just that.
1 The original amendment to the Union constitution was somewhat
confusing, but a subsequent amendment was adopted to clarify the
"active pay status" policy. The district court opinion refers to
this "active pay status" policy as the "no loss, no gain"
amendment. See Bramble, 963 F. Supp. at 93.
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Two weeks later, Bramble brought this suit in the
Federal District Court of Rhode Island alleging that the Union's
actions amounted to a constructive discharge based upon age
discrimination in violation of the ADEA, 29 U.S.C. 626.
Bramble sued the Union in both its capacity as an "employer" and
as a "labor union" under the ADEA. Bramble's amended complaint
employed both disparate treatment and disparate impact theories
of recovery. In his disparate treatment claim, Bramble alleges
that the defendant used his eligibility for retirement, a proxy
for his age, as a means to force him from office. In his
disparate impact claim, Bramble alleges that the new salary
structure is a policy which disproportionately affects people
protected by the ADEA. The district court dismissed this case on
summary judgment, concluding that there was insufficient evidence
to create a genuine dispute as to whether the Union was motivated
by age-based animus and that business necessity justified the
Union's new policy.
DISCUSSION
DISCUSSION
I. Jurisdiction
I. Jurisdiction
As a preliminary matter, the Union claims that this
court does not have jurisdiction over this case because the Union
is not covered as an "employer" under the ADEA, 29 U.S.C.
623(a). An employer is only subject to the ADEA if it employs
"twenty or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar
year." 29 U.S.C. 630(b). The Union claims that Bramble was
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its only true employee and that it is thus outside the scope of
the ADEA. This argument is bolstered by an examination of the
Union's W-3 forms, which reveal that, while over thirty union
"employees" received some form of compensation during the years
at issue, almost all of these "employees" received less than one
thousand dollars per year. While this fact casts doubt on
whether twenty or more employees were actually engaged in Union
work for each working day in twenty or more calendar weeks, the
record at this stage of the case does not contain any schedules
or time sheets to indicate when employees were at the Union or
engaged in Union duties. Construing this limited record in the
light most favorable to Bramble, we must conclude that there is a
genuine issue of material fact regarding the qualification of the
Union as an "employer" under sections 623(a) and 630. Therefore,
it is premature for this court to declare that the district court
acted without proper subject matter jurisdiction when it
considered the merits of this case for summary judgment purposes.
Furthermore, "'[i]t is a familiar tenet that when an
appeal presents a jurisdictional quandry, yet the merits of the
underlying issue, if reached, will in any event be resolved in
favor of the party challenging the court's jurisdiction, then the
court may forsake the jurisdictional riddle and simply dispose of
the appeal on the merits.'" See Rojas v. Fitch, 127 F.3d 184,
187 (1st Cir. 1997) (quoting Hachikian v. FDIC, 96 F.3d 502, 506
n.4 (1st Cir. 1996)). In light of the fact that summary judgment
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for the Union is affirmed herein, we are not inclined to remand
on jurisdictional grounds.
The Union also argues that it is not required to
conform to ADEA requirements because it is not a "labor
organization" covered by section 623(c). A labor organization
under the ADEA represents employees of a covered "employer," and
any corporation wholly owned by the federal government is
specifically excluded from the ADEA's definition of "employer."
See 29 U.S.C. 630(b). However, if the Union is subject to the
requirements of the ADEA by virtue of its status as an "employer"
under section 623(a) and is being sued in that capacity, it is
irrelevant whether it also qualifies as a "labor organization"
under section 623(c). Thus, the Union's second jurisdictional
argument has been mooted by our finding that summary judgment on
the issue of subject matter jurisdiction would be premature.
II. Disparate Treatment
II. Disparate Treatment
Review of a district court's award of summary judgment
is de novo. See United Nat'l Ins. Co. v. Penuche's, Inc., 128
F.3d 28, 30 (1st Cir. 1997). We view the entire record in the
light most hospitable to the party opposing summary judgment,
indulging all reasonable inferences in that party's favor. See
Ahern v. O'Donnell, 109 F.3d 809, 811 (1st Cir. 1997).
The ADEA was promulgated by Congress out of a concern
that older workers were being deprived of employment
opportunities due to inaccurate stereotypes. See EEOC v.
Wyoming, 460 U.S. 226, 231 (1983). To establish a disparate
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treatment claim under the ADEA, an employee must show that he was
treated adversely because of his age. Mesnick v. General Elec.
Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 504 U.S.
985 (1992). To survive summary judgment, the employee must first
either present direct evidence of discrimination or make out a
prima facie case of discrimination, invoking the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973). See Mesnick, 950 F.2d at 823. In this case, there
was no direct evidence of discrimination.2 Therefore, Bramble
was required to make out a prima facie case demonstrating that
(1) he was over the age of forty; (2) his work was sufficient to
meet his employer's legitimate expectations; (3) his employer
took adverse action against him; and (4) the employer sought a
replacement with roughly equivalent job qualifications, thus
revealing a continued need for the same services and skills. See
id. (citing Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110 (1st
Cir. 1989)).
Bramble's claim was different from most age
discrimination claims insofar as he held an elected office. He
was employed collectively by the union members. This obviously
complicated Bramble's task of showing discriminatory animus on
the part of his employer. The decision to constructively
2 Bramble argues that some direct evidence of discrimination did
exist in this case. He points to a comment made by a union
member on the floor prior to the vote on the amended salary
structure, referring to Bramble as "the retired President."
However, this comment plainly provides no evidence of age
discrimination.
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discharge Bramble was made by a majority of the 57 members of the
union electorate who voted on the amendment, and, as courts are
acutely aware, determining the "motive" behind a policy adopted
via popular vote is a monumental challenge. See e.g., O'Brien v.
United States, 391 U.S. 367, 383-84 (1968) ("[i]nquiries into
congressional motives or purposes are a hazardous matter"). For
example, the requirement that Bramble's work be "sufficient to
meet his employer's legitimate expectations" effectively became a
requirement that Bramble be a successful politician. Here was
where Bramble's improbable effort to prove age discrimination on
the part of an entire union electorate ultimately failed.
Dale Bramble eventually lost favor with his Postal
Worker constituents. Bramble's counsel may have stated it most
succinctly when he stated that "there were a lot of people in the
Union who did not like him." After nineteen years as the Union
President, Bramble's counsel explained, he had made enough
enemies that "[the Union] wanted to get rid of him for several
reasons." For over a year, Bramble had continued as President
after failing to win a majority in the presidential election, and
there is no evidence that his popularity was increasing. The
transcript of the Union meeting at which the amendment was
adopted reveals that Bramble was perceived by various members of
the Union as being insulated, greedy, uncommunicative, and
generally untrustworthy. It is not for this or any court to
determine the character of the plaintiff in this case, but it is
relevant that the Union members were critical of their President.
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None of the members who spoke out against Bramble on that evening
criticized him as being too old for his job. In the face of this
evidence that the majority of the union members were displeased
with Bramble's presidency, and due to the lack of any evidence to
the contrary, we reject Bramble's claims of disparate treatment.
In essence, he failed to establish a key element of his prima
facie case of disparate treatment -- that "his work was
sufficient to meet his employer's legitimate expectations."3
Bramble argues that even if the Union wanted to oust
him as president for reasons other than age, it violated the ADEA
when it implemented its new "active pay status" salary plan. He
alleges that the plan "constitutes a form of overt discriminatory
animus" because retirement status is tied to age. Essentially,
Bramble argues that because older people are the only people
eligible for retirement, and because the new salary structure
would have the primary effect of discouraging retired people from
seeking the Union presidency, the new salary structure is per se
age discrimination. However, Bramble's argument fundamentally
misinterprets Hazen Paper v. Biggens, 507 U.S. 604 (1993), the
most recent Supreme Court case on this issue.
In Hazen Paper, the Court considered "whether an
employer violates the ADEA by acting on the basis of a factor,
such as an employee's pension status or seniority, that is
empirically correlated with age." Id. at 608. In holding for
3 The Union has since amended its constitution to provide for
run-off elections so that no President will ever again be elected
without winning a majority vote.
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the employer in that case, the Court clarified that "there is no
disparate treatment under the ADEA when the factor motivating the
employer is some feature other than the employee's age." Id. at
609. The reasoning behind the Court's decision was that "age and
years of service are analytically distinct, an employer can take
account of one while ignoring the other, and thus it is incorrect
to say that a decision based on years of service is necessarily
'age based.'" Id. at 611.
Despite Bramble's attempts to distinguish pension
status from "active pay status," the analysis under the ADEA must
be the same. While retired postal workers likely outnumber those
postal workers on disability or unpaid leave, the fact remains
that the group negatively affected by the active pay status
policy is "analytically distinct" from the group of retirement
aged postal employees. In other words, there is a positive
correlation between active pay status and age, but one is not an
exact proxy for the other.
Hazen Paper explains that where an employment decision
is premised upon an age-correlated but analytically distinct
factor, a violation of the ADEA has occurred only if there is
additional evidence that the employer was motivated by an age-
discriminatory animus. Id. at 612-13. As discussed above, there
is no such evidence in this case. The plaintiff's disparate
treatment claim must fail.
III. Disparate Impact
III. Disparate Impact
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Bramble also claims that the Union's new salary
structure has a "disparate impact" on older persons in violation
of the ADEA. A "disparate impact" claim involves "'employment
practices that are facially neutral in the treatment of different
groups but that in fact fall more harshly on one group than
another and cannot be justified by a business necessity.'" Hazen
Paper, 507 U.S. at 609, quoting Teamsters v. United States, 431
U.S. 324, 335-36, n.15 (1977). Statistics comparing persons
holding at-issue jobs and composition of qualified job applicants
are commonly a basic component of a disparate impact claim. See
Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650-51
(1989). As the Supreme Court has repeatedly reminded, there has
been no definitive interpretation of the applicability of
disparate impact analysis to the ADEA. See Hazen Paper, 507 U.S.
at 610; Markham v. Geller, 451 U.S. 945 (1981) (Rehnquist, J.,
dissenting from denial of certiorari). Furthermore, this Court
has never addressed the question. However, this case does not
present this Court with a proper occasion to take up the
question, because, even assuming arguendo that these claims are
viable under the ADEA, it is plainly apparent that Bramble has
insufficient evidence to support his claim.
In this case, the effect of the questioned employment
practice has not fallen on a group at all, but on one person.
Only the president's salary was modified by the amendment. Thus
it is undisputed that the only person affected by the active pay
status policy was Bramble. Where an employer targets a single
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employee and implements a policy which has, to date, affected
only that one employee, there is simply no basis for a disparate
impact claim.
Instead, it appears that Bramble's claim is actually
prospective, i.e., he argues that it is apparent "on its face"
that the active pay status policy will have a foreseeable
disparate impact. However, proper disparate impact claims only
involve facially neutral policies. See Hazen Paper, 507 U.S. at
609. Therefore, Bramble's disparate impact claim actually folds
into his failed disparate treatment claim. See supra. Thus, we
need not address whether the Union had shown a "business
necessity" for its new policy, the issue which persuaded the
district court to grant summary judgment on this disparate impact
claim. See Bramble, 963 F. Supp. at 98-102.
IV. Reasonable Notice
IV. Reasonable Notice
Bramble argues that the district court's award of
summary judgment failed to meet the requirements of Fed. R. Civ.
P. 56(c) entitling the party opposing summary judgment to ten
days notice and an opportunity to respond. See Stella v. Town of
Tewksbury, 4 F.3d 53, 56 (1st Cir. 1993). He argues that the
district court awarded summary judgment on two grounds that were
not discussed in the Union's Motion for Summary Judgment --
namely that there was no evidence of discriminatory animus as
required by Hazen Paper and that the Union had established a
business necessity for its new salary structure. Bramble
contends that the ruling thus conflicted with the well-
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established principle that a trial court must give notice to both
parties of any issues it will be considering for summary judgment
that exist outside of the original Motion for Summary Judgment.
See Stella, 4 F.3d at 56.
"'The purpose of Rule 56 (c) is to allow a party to
have a meaningful opportunity to challenge a summary judgment
motion.'" Delgado-Biaggi v. Air Transport Local 501, 112 F.3d
565, 567 (1st Cir. 1997) (quoting C a. Petrolera Caribe, Inc. v.
Arco Caribbean, Inc., 754 F.2d 404, 409 (1st Cir. 1985)).
Indeed, where a party did not have an adequate opportunity to
address the rationale behind the summary judgment in the district
court, we will not address the substance of the claims on appeal
because "'leapfrogging to the merits would display much the same
disregard for established protocol that marred the district
court's performance.'" Delgado-Biaggi, 112 F.3d at 568 (quoting
Stella, 4 F.3d at 55). However, while a party must receive an
adequate opportunity to challenge the general grounds of a
prospective award of summary judgment, a party need not have an
opportunity to address every step of the reasoning employed or
every case relied upon by the district court. In this case,
Bramble filed two briefs over the course of two months in which
he attempted to distinguish Hazen Paper, the case on which the
district court and this court ultimately rely in dismissing
Bramble's disparate treatment claim. Since his disparate impact
claim merely extends from this failed disparate treatment claim,
Bramble's inability to successfully distinguish Hazen Paper was
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fatal to both claims. Thus we reject Bramble's argument that he
was denied reasonable notice.
For the reasons stated herein, the district court's
award of summary judgment is affirmed.
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