Dunn v. Trustees of Boston University , 761 F.3d 63 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2272
MICHAEL DUNN,
Plaintiff, Appellant,
v.
TRUSTEES OF BOSTON UNIVERSITY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Thompson, Circuit Judges
and Laplante,* District Judge.
Lana Sullivan, with whom Ronald M. Davids was on brief, for
plaintiff-appellant.
Lawrence S. Elswit for defendants-appellants.
July 30, 2014
*
Of the District of New Hampshire, sitting by designation.
LAPLANTE, District Judge. Michael Dunn appeals the entry
of summary judgment against him on his claim that his former
employer, Boston University ("BU"), discharged him because of his
age in violation of the Massachusetts Fair Employment Practices
Act, Mass. Gen. Laws ch. 151B, § 4.1B. The district court ruled
that Dunn had failed to make out a prima facie case of age
discrimination. Without ruling on the sufficiency of Dunn’s prima
facie showing we affirm. Even assuming that Dunn made that prima
facie showing, he failed to demonstrate a genuine issue of material
fact as to whether BU’s stated reasons for discharging him, as part
of a reorganization of its information technology department, were
pretextual.
I.
A.
We set forth the facts in the light most favorable to
Dunn. See, e.g., Ponte v. Steelcase, Inc., 741 F.3d 310, 313 (1st
Cir. 2014). After receiving a bachelor’s degree in computer
engineering, in 1987, Dunn worked for a year or so as a hardware
support specialist before becoming a systems administrator and,
later, the manager of the computer support center, for a
Massachusetts company with 1,500 employees. In 1992, Dunn began
working for BU, as a computer hardware repair technician. After
several promotions, in the fall of 2009, at age 47, Dunn assumed
the title of "Assistant Director of Distributed Computing," a group
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within BU’s Information Services & Technology ("IS&T") department.
In this job, Dunn supervised nine employees providing high-level
desktop computer services and support to faculty and staff.
Earlier in 2009, BU had hired Tracy Schroeder, age 38, as
the vice president of IS&T. Schroeder began making organizational
changes, including the merger of the distributed computing group
with another group within IS&T known as the "IT help center." The
purpose of that change, Schroeder explained, was to "improve the
efficiency of the department by bringing staff . . . who [were]
performing similar functions together in teams" and "to reduce the
fragmentation of the [department’s] presentation to the client
community," i.e., BU’s students, faculty, and staff. This merger
resulted in the elimination of the distributed computing group, and
the layoff of its director (and Dunn’s immediate supervisor),
Stephen Rosman, who was 59 years old at the time.
The merger also resulted in a title change for Dunn, who
became "manager of field support" for the IT help center in October
2009. Dunn retained the same salary and benefits, but lost
managerial responsibility over four employees, and viewed the title
change as a demotion. Within two months or so, however, those
employees were re-assigned to work under Dunn after their
supervisor quit. Dunn reported to Stacy Gianoulis, age 50, a
project director in the help center.
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In February 2010, as part of the continued restructuring
of the IS&T department, Dunn became "manager of desktop services-
field support," while Jill Beckman, who was then around 30 years
old, became "manager of desktop services-central support."
Beckman, who holds an undergraduate degree in music synthesis (a
major she described as "all about music and computers"), had
started working at BU in 2001, before she completed college. She
began as a "technical consultant" at University Computers, a BU-
operated computer store, diagnosing and repairing hardware and
software problems. In 2006, Beckman was promoted to the position
of "manager of technical services" at the store, so that its
technical consultants reported to her. During her time at
University Computers, Beckman worked with different "ticketing
systems" used to track service requests, contributing to the
development of two such systems (known as "Oompa" and "OneHelp").
In April 2010, Gianoulis called Dunn to apprise him of
some further upcoming organizational changes, including that, due
to overwork, the employee then serving as "manager of the service
desk" would have her title changed to "manager, accounts and
student services" and be relieved of her responsibilities over the
service desk itself. Gianoulis explained that this would open a
new "service desk manager" position, but that "he [was] really
looking for a younger person in that role." Dunn did not express
any interest in the new position, which, as he testified at his
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deposition, offered a "lesser grade [and] pay" than the job he had
at the time. Ultimately, BU hired a 35-year-old for the service
desk manager job.
A few weeks later, in early May 2010, Gianoulis submitted
a written proposal to Schroeder for reorganizing the desktop
services group. In addition to dividing the responsibilities of
the manager of the service desk, as just discussed, this proposal
combined the responsibilities of the "central support" position
held by Beckman and the "field support" position held by Dunn into
a single new position, "manager of the [d]esktop [s]ervices team."
Gianoulis explained that, while desktop services had initially been
divided into the "field support" and "central support" teams, "each
with its own manager, as we worked through the merger . . . [a]s
these two groups become more integrated and with the adoption of
OneHelp as our ticketing system it is clear there needs to be one
operational manager of the Desktop Services team to manage the day
to day support activities."
Gianoulis further proposed that the new manager of
desktop services position be given to Beckman, citing her "history
and performance of actively managing a support group" and
"knowledge of service management systems," as well as her role in
developing "OneHelp," the ticketing system. A job description for
the "manager of desktop services" position awarded to Beckman had
been completed in October 2009, but, contrary to written BU policy,
-5-
was never posted in its job listings (though Gianoulis did discuss
the written reorganization proposal with an employee in BU’s human
resources department, who said she had "no objections"). Nor did
Schroeder or Gianoulis consider any candidates for the job besides
Beckman.
Gianoulis also proposed that Dunn--who was 47 years old
at that point--would be laid off. The restructuring of the desktop
services group affected other older employees as well, though none
adversely: three employees in their 40s received promotions, while
a 56 year-old and a 60-year-old retained their jobs. Schroeder
approved Gianoulis’s proposal and, on May 25, 2010, Gianoulis
informed Dunn that his job was being eliminated due to
restructuring.
At his deposition in this case, Gianoulis testified that
Dunn "was never considered for" the manager of desktop services
position because Beckman "was already doing the role" in her prior
job as manager of desktop services-central support. Gianoulis
explained that, during Beckman’s time in that job, she "provided
desktop support to students, staff and faculty . . . in a high
volume environment." Dunn’s role as field support manager,
Gianoulis recalled, was more limited, "only supporting a select
group of administrative staff" and doing "a lot of vendor
negotiation," as well as "business applications support" for the
"select group of clients that he supported." Gianoulis added that
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Dunn had "told [him] specifically that he wasn’t interested in
desktop support, he was interested in Windows system management,"
which he considered "his area of expertise."
B.
In November 2010, Dunn filed a charge of discrimination
against BU with the Massachusetts Commission Against
Discrimination. He subsequently withdrew the charge and brought
suit against BU in Massachusetts Superior Court, claiming age
discrimination in violation of both the federal Age Discrimination
in Employment Act, 29 U.S.C. §§ 621 et seq., and its state-law
analog, Mass. Gen. Laws ch. 151B, § 4.1B. BU removed the case to
the district court, invoking its federal question jurisdiction. 28
U.S.C. § 1331.
In due course, BU filed a motion for summary judgment,
see Fed. R. Civ. P. 56, arguing that Dunn could not establish a
prima facie case of age discrimination under either federal or
state law and that, in any event, BU had legitimate,
nondiscriminatory reasons for laying off Dunn, who lacked evidence
that those reasons were pretextual. Dunn’s first response to BU’s
summary judgment motion was a motion seeking voluntary dismissal of
his ADEA claim with prejudice, see Fed. R. Civ. P. 41(a)(2), and
for the district court to decline to exercise supplemental
jurisdiction over the remaining state-law age discrimination claim,
see 28 U.S.C. § 1367(c)--relief which, if granted, would have
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resulted in remand of the case to the superior court. As the basis
for this motion, Dunn stated that "the standard on summary judgment
for discrimination claims arising under federal law is
significantly less liberal than the standard on summary judgment
for discrimination claims arising under state law." In a decision
that Dunn has not questioned on appeal, the district court
dismissed the ADEA claim, but refused to remand the chapter 151B
claim to state court, declaring that "such forum shopping is
clearly improper." Dunn v. Trs. of Boston Univ., No. 11-10672,
2013 WL 5235167, at *2 (D. Mass. Sept. 16, 2013).
After Dunn filed his opposition to BU’s summary judgment
motion, the district court heard oral argument on it and, as noted
at the outset, granted the motion, ruling that Dunn had not made
out a prima facie case that he was laid off because of his age.
Id. at *7. As a result, the district court did not reach BU’s
alternative argument that, even if Dunn could establish a prima
facie case of age discrimination, he could not demonstrate a
genuine issue as to whether BU’s stated reasons for laying him off
were pretextual. This appeal followed.
II.
Summary judgment is appropriate where "the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). "A dispute is genuine if the evidence about the fact is
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such that a reasonable jury could resolve the point in the favor of
the non-moving party. A fact is material if it has the potential
of determining the outcome of the litigation." Patco Constr. Co.
v. People’s United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012)
(quotation marks omitted).
We review the district court’s entry of summary judgment
de novo, "draw[ing] all reasonable inference in favor of the non-
moving party while ignoring conclusory allegations, improbable
inferences, and unsupported speculation." Alicea v. Machete Music,
744 F.3d 773, 778 (1st Cir. 2014) (quotation marks and bracketing
omitted). We are not wedded to the district court’s rationale, but
may affirm the entry of summary judgment on any ground supported by
the record. See, e.g., Boston Prop. Exch. Transfer Co. v.
Iantosca, 720 F.3d 1, 10 (1st Cir. 2013).
III.
"Generally, a plaintiff who is terminated from [his]
position establishes a prima facie case of discrimination by
producing evidence that [1] [he] is a member of a class protected
by [Mass. Gen. Laws] ch. 151B; [2] [he] performed [his] job at an
acceptable level; [3] [he] was terminated; and [4] [his] employer
sought to fill [his] position by hiring another individual with
qualifications similar to [his]." Sullivan v. Liberty Mut. Ins.
Co., 825 N.E.2d 522, 531 (Mass. 2005). As the Supreme Judicial
Court has explained, however, the "fourth element is nonsensical in
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a reduction in force case: the plaintiff is not replaced, nor does
[his] employer ‘seek to fill’ the position, for the very purpose of
a workforce reorganization is generally to reduce the number of
employees." Id.
In Sullivan, then, the Supreme Judicial Court
"consider[ed] how the fourth element of a prima facie case must be
varied so that a plaintiff who is laid off during a reduction in
force may establish a prima facie case of unlawful discrimination,"
id., holding that a plaintiff does so "by producing some evidence
that [his] layoff occurred in circumstances that would raise a
reasonable inference of unlawful discrimination." Id. at 533-34;
see also Woodward v. Emulex Corp., 714 F.3d 632, 637-38 (1st Cir.
2013) (explaining that "[w]here the employer does not replace the
plaintiff with a new employee . . . some evidence that the
employee’s layoff occurred under circumstances that would raise a
reasonable inference of discrimination is necessary to establish
the fourth prong" of a prima facie age discrimination case under
Massachusetts law).
Applying Sullivan, the district court ruled that Dunn had
failed to produce any such evidence. Dunn challenges this ruling
on two principal grounds. First, he argues that the transfer of
his responsibilities to the younger Beckman sufficed, in and of
itself, to establish a prima facie case of age discrimination,
regardless of the additional circumstances of his layoff. That is
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incorrect, as we explain below. Second, Dunn argues that the
circumstances of his layoff demonstrated a reasonable inference of
age discrimination in that (a) "Schroeder and Gianoulis deviated
from the standard application of University hiring policies and
procedures" in giving Beckman the manager of desktop services job,
(b) Dunn’s qualifications for that position were superior to those
of Beckman, and (c) Gianoulis stated to Dunn, in April 2010, that
Gianoulis was "really looking for a younger person" for a different
job, that of service desk manager. As discussed infra, we conclude
that, even if these facts suffice to make out a prima facie case
under Mass. Gen. Laws ch. 151B, § 4.1B, they fail to create a
genuine issue as to whether BU’s stated reasons for laying Dunn off
were pretexts for age discrimination.
A.
Dunn argues that "[t]he mere fact that an 18 year
difference existed between Dunn and Beckman should be sufficient
for Dunn to establish a prima facie case." In Sullivan, however,
the Supreme Judicial Court specifically declined to follow
decisions holding that a plaintiff challenging his layoff can
establish the fourth element of a prima facie case of
discrimination "by showing, in [an] age discrimination claim, that
an employee at least five years younger than [him] was retained."
825 N.E.2d at 532 (quotation marks omitted). The Supreme Judicial
Court "rejected that formulation, as such evidence is insufficient
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to establish a legally mandatory, rebuttable presumption of
unlawful discrimination." Id. (quotation marks omitted).
Emphasizing that "his entire job was given to Beckman,"
Dunn argues that he made out a prima facie case on the theory that
"the employer retained unprotected or younger workers in the same
position." It is true that, in Sullivan, the court acknowledged
that, "in some reduction in force cases, the fact that an employer
retained in the plaintiff’s same position an employee outside the
plaintiff’s protected class may indeed be sufficiently probative to
allow a factfinder to believe that the employer intentionally
discriminated against the plaintiff." Id. at 533. In a case that
Sullivan called a "satisfactory" model for Massachusetts law, id.
at 532, this court has endorsed the same view as a matter of
federal employment law. See Currier v. United Techs. Corp., 393
F.3d 246, 256 (1st Cir. 2004).
What Dunn fails to acknowledge, however, is that this
court has also (in another case cited approvingly in Sullivan, 825
N.E.2d at 532) expressly rejected the argument that an employer’s
"delegation of duties to other individuals not in [the plaintiff’s]
protected class amount[s] to retaining individuals in the same
position" so as to make out a prima facie case of discrimination
under either federal or Massachusetts law. Lewis v. City of
Boston, 321 F.3d 207, 216 (1st Cir. 2003). As this court
explained, "[m]erely demonstrating that, as a result of the
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reduction in force, the employer consolidated positions or
allocated duties of discharged employees to other existing
employees does not itself raise a reasonable inference that the
employer harbored discriminatory animus toward any one employee."1
Id. Here, then, the fact that BU reorganized the desktop services
group by consolidating the field and central support manager jobs
into a single position, and awarding that position to an employee
less than 40 years old instead of to Dunn, does not raise a
reasonable inference that the basis for that decision was Dunn’s
age (any more than it would suggest, since Beckman is a woman and
Dunn is not, that the basis for that decision was Dunn’s sex).
Despite Dunn’s suggestion to the contrary, it makes no
difference that, while his position was eliminated in the
reorganization, "the functions that Dunn performed were not."
Indeed, by definition, a reduction-in-force accomplished by
consolidating positions and reallocating duties results in the
1
Dunn seems to suggest that this case does not present a true
"consolidation" or "reallocation," either because "Beckman was not
doing any part of Dunn’s job as desktop services manager"
previously, or because "Dunn’s job functions were not dispersed
among several different employees" but given entirely to Beckman.
We fail to see how either of those facts is essential to a
"consolidation" or "reallocation" as this court described those
concepts in Lewis, and Dunn does not explain further. It suffices
to say, then, that we find Lewis instructive because the
reorganization at issue here quite closely resembles the
reorganization at issue there. 321 F.3d at 212 (noting that the
defendant decided "to eliminate the [plaintiff’s] position and to
spread [his] duties to other positions," including a "new position,
which consolidated the bulk of [the plaintiff’s] duties with
[other] responsibilities" of a different existing position).
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elimination of one or more positions, rather than in the
elimination of their functions. Again, this court held in Lewis
that "an employee must come forward with something more then
evidence of the inevitable transfer of his or her responsibilities
to existing employees" to make out a prima facie case of a
discriminatory layoff. See id.
Dunn maintains that such a transfer demonstrates "the
continuing need for the work that the employee was performing prior
to his termination"--a fact which, he says, this court deemed
"sufficient to make out a prima facie case of discrimination" in
its decisions in Rodriguez-Torres v. Caribbean Forms Mfr. Inc., 399
F.3d 52 (1st Cir. 2005) and Hidalgo v. Overseas Condado Ins.
Agencies, Inc., 120 F.3d 328 (1st Cir. 1997). Dunn’s reliance on
those cases is misplaced. In relevant part, they recognize simply
that an employer’s continuing need for the plaintiff’s services can
establish the fourth element of a prima facie case of
discriminatory termination, i.e., that he or she was replaced, even
if the employer does not in fact hire a replacement. See
Rodriguez-Torres, 399 F.3d at 59; Hidalgo, 120 F.3d at 332-33.
As already noted, though, the requirement that a
plaintiff prove his "replacement" as part of his prima facie
showing of discriminatory termination "is nonsensical in a
reduction in force case," where "the plaintiff is not replaced"
since "the very purpose of a workforce reorganization is generally
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to reduce the number of employees."2 Sullivan, 825 N.E.2d at 531;
see also Woodward, 714 F.3d at 638 ("The fourth prong [of the prima
facie case standard for discriminatory termination claims] does not
apply to a reduction-in-force case . . . where the employer does
not replace the plaintiff with a new employee."). Dunn is wrong,
then, that BU’s "continuing need" for someone to perform his
duties, as evinced by the fact of their reassignment to Beckman,
establishes a prima facie case that he was terminated due to his
age. The district court was correct that, for Dunn to make out
such a case, he had to come forward with evidence beyond the mere
fact that BU laid him off and reassigned his responsibilities to an
employee younger than 40. See Sullivan, 825 N.E.2d at 531.
B.
Dunn also argues that, even putting that fact aside, he
produced additional "evidence that [his] layoff occurred in
circumstances that would raise a reasonable inference of unlawful
discrimination" so as to make out a prima facie case that he was
terminated due to his age. Id. at 533-34. If a plaintiff
successfully establishes a prima facie case of employment
discrimination, the defendant must respond "by articulating a
lawful reason for its employment decision and producing credible
evidence that the reason or reasons advanced were the real
2
Indeed, both Rodriguez-Torres, 399 F.3d at 59 n.5, and
Hidalgo, 120 F.3d at 334 n.5, specifically noted that they did not
involve reductions-in-force.
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reasons." Id. at 538 (quotation marks and bracketing omitted); see
also, e.g., Woodward, 714 F.3d at 638 (quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). The defendant’s "burden
at this stage is one of production and not persuasion; it need not
prove that the reasons were nondiscriminatory." Sullivan, 825
N.E.2d at 538 (quotation marks omitted); see also Woodward, 714
F.3d at 638. If the employer meets its burden of production,
"[t]he burden returns to [the plaintiff] to establish that the
basis of [the defendant’s] decision was unlawful discrimination by
'adducing evidence that the reasons given by [the defendant] for
its actions were mere pretexts to hide such discrimination.'"
Sullivan, 825 N.E.2d at 550 (quoting Lewis, 321 F.3d at 214).
The district court did not decide whether BU had
articulated a nondiscriminatory reason for terminating Dunn or, if
so, whether Dunn had responded with evidence that the stated reason
was a pretext for age discrimination. Instead, the district court
ruled that Dunn, relying on his mistaken theory that the
reassignment of his duties to an employee under 40 could itself
establish a prima facie case of age discrimination, had not come
forward with additional evidence on that point, i.e., that his
layoff occurred in circumstances that would raise an inference of
unlawful discrimination. We need not decide whether that ruling
was correct. Again, we may affirm on any basis supported by the
record. See Boston Prop. Exch. Transfer Co., 720 F.3d at 10.
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Because, in trying to demonstrate pretext to the district court,
Dunn relied on the same evidence he used to try to make a prima
facie case, we can simply assess whether that evidence demonstrates
a genuine issue of pretext without assessing whether the same
evidence demonstrates a prima facie case. Cf. Lewis, 321 F.3d at
216-17 (rejecting the argument that plaintiff had shown a prima
facie case of a discriminatory layoff by showing the reassignment
of his duties to nonprotected employees, then proceeding to rule
that, even had he made out a prima facie case, the record lacked
evidence that the employer’s explanation for the layoff was a
pretext for discrimination). Here, the record is devoid of
evidence that BU’s stated reasons for laying off Dunn are pretext
for discriminating against him due to his age.
To start with, BU has articulated legitimate reasons,
with support in the record, both for eliminating Dunn’s job, as its
duties were consolidated with those of Beckman’s to create the
manager of desktop services position, and for awarding that
position to Beckman, rather than to Dunn. As Gianoulis explained
in proposing these changes, the increasing integration of the field
and central support divisions of the desktop services group called
for their consolidation under a single manager. See Alvarado-
Santos v. Dep’t of Health of P.R., 619 F.3d 126, 132 (1st Cir.
2010) (recognizing that "greater uniformity and efficiency" are
legitimate reasons for consolidating managerial responsibilities).
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Gianoulis also explained that the desktop services job should go to
Beckman in light of her "history and performance of actively
managing a support group" and "knowledge of service management
systems." Those reasons are also facially legitimate. See, e.g.,
Sullivan, 825 N.E.2d at 538 (ruling that, in deciding which
employees to lay off, an employer can "determine which of [them]
would best meet its ongoing business needs," including by
considering their "particular expertise").
The question becomes, then, whether the record contains
"'evidence sufficient to support a jury verdict that it was more
likely than not that the[se] articulated reason[s] [were] a pretext
for unlawful discrimination.'" Woodward, 714 F.3d at 638 (quoting
Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309
(Mass. 1997) (further quotation marks omitted)). In the district
court, Dunn argued that he had demonstrated a genuine issue as to
pretext on three grounds: (1) Beckman’s alleged lack of
qualifications for the manager of desktop services job; (2) the
"deviat[ion] from the standard application of University hiring
policies and procedures" in awarding that job to Beckman; and (3)
Gianoulis’s statement to Dunn, in April 2010, that Gianoulis was
"really looking for a younger person" for the position of service
desk manager. For the reasons set forth below, we reject these
arguments.
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First, Dunn asserts that "Beckman’s credentials were not
even remotely what was qualified" for the manager of desktop
services job created as a result of the consolidation. Dunn’s only
record support for this assertion, however, is the fact that,
previously, "Beckman worked in the IT Help Center as a break-fix
technical services manager doing the same type of basic 'break-fix'
hardware repair work that Dunn had performed upon his graduation
from college." This argument, however, focuses on Beckman’s
responsibilities for BU when she first started working there--upon,
and even prior to, her graduation from college3--to the exclusion
of the additional responsibilities she took on as she was promoted
to manager of technical services, in 2006, and manager of desktop
services-central support, in February 2010.
Moreover, while performing those jobs, Beckman developed
the "history and performance of actively managing a support group"
and "knowledge of service management systems," including ticketing
systems, that Gianoulis, in recommending Beckman to be manager of
3
Dunn denigrates the jobs that Beckman held prior to working
at BU as "a waitress at a country club, a clerk in a liquor store,
and as a development associate at [her college] seeking donations
from alumni." We fail to see how the jobs that Beckman held prior
to working at BU (when, again, she was still in college) cast doubt
on her qualifications to assume the role of desktop services
manager some eight years later. Cf. Somers v. Converged Access,
Inc., 911 N.E.2d 739, 752 (Mass. 2009) (reasoning that differences
in employee’s college experiences are insufficient to establish
differences in their qualifications "when many years have passed
since their graduation and each had substantial work experience" in
the relevant field).
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desktop services, had identified as important to the position.4
Indeed, as Gianoulis later explained, Beckman "was already doing
the role" of desktop services manager during her stint as central
support manager, where she "provided desktop support to students,
staff and faculty . . . in a high volume environment." Dunn, in
his role as field support manager, had been providing those
services to a more limited client base and, in any event, had
specifically told Gianoulis that "he wasn’t interested in desktop
support."5
Based on these undisputed facts, no reasonable jury could
find, as Dunn urges, that "the stark disparity in [his] credentials
and Beckman’s credentials was so manifest that the only way Beckman
could have been selected for the [manager of desktop services] job
was if age played an impermissible role." As this court has
4
Dunn asserts that Beckman’s "use of a ticketing system was
limited to basic tracking of orders . . . and not a sophisticated
enterprise-level, large scale IT service management model." But
that assertion finds no support in the record. Dunn relies solely
upon the deposition testimony of Rosman (his former boss in the
distributed computing group) as to the type of ticketing system
that Rosman "would think" or "imagine" was in use in the BU
computer store during Beckman’s time there. Speculation, of
course, is of no use on summary judgment, see, e.g., Rivera Colón
v. Mills, 635 F.3d 9, 12 (1st Cir. 2011), and, in any event,
Rosman’s testimony--like Dunn’s argument in general--speaks only to
Beckman’s time at the computer store.
5
Dunn says in his reply brief that he "disputes" having said
that, but does not point to anything of evidentiary quality (e.g.,
his own testimony denying Gianoulis’s account). "[A] party may not
generate a trial-worthy dispute at summary judgment merely by
presenting unsubstantiated allegations in its memoranda." Nieves
v. Univ. of P.R., 7 F.3d 270, 280 (1st Cir. 1993).
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instructed, a plaintiff cannot make pretext a trialworthy issue by
"essentially relying on his personal belief that he was more
qualified" for a job that his employer gave to someone outside of
the protected class. Vega-Colon v. Wyeth Pharms., 625 F.3d 22, 28
(1st Cir. 2010) (citing Shorette v. Rite Aid of Me., Inc., 155 F.3d
8, 15 (1st Cir. 1998)); see also Somers, 911 N.E.2d at 752 (ruling
that plaintiff could not demonstrate pretext for the defendant’s
hiring decision simply by "pointing to his resume and claiming that
he had similar experience" to the non-protected employee who was
hired).
Second, Dunn relies on the fact that "Schroeder and
Gianoulis deviated from the standard application of University
hiring policies and procedures" in selecting Beckman to be the
manager of desktop services. As Dunn points out, this court has
recognized that "[d]eviation from established policy or practice
may be evidence of pretext." Brennan v. GTE Gov’t Sys. Corp., 150
F.3d 21, 29 (1st Cir. 1998) (applying both federal and
Massachusetts age discrimination law).
So far as we can tell, however, the only "deviation from
established policy" that happened in this case was that the job
description for the manager of desktop services position was never
posted in the university job listings.6 And we simply cannot see
6
Dunn also emphasizes that Schroeder and Gianoulis did not
"review any resumes" or "conduct any interviews," but he points to
nothing in the record suggesting that BU had any policy imposing
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any logical connection between that omission and the question
before us, i.e., whether a rational jury could find that BU’s
stated reasons for giving the job to Beckman rather than to Dunn
are in fact pretext for discriminating against Dunn on account of
his age. Cf. Vega-Colon, 625 F.3d at 28 (observing that the "inner
workings" of defendant’s hiring process "are not relevant, so long
as [plaintiff’s] status was not a motivating or substantial factor
in [the] decision not to hire him").
Dunn offers only that "a reasonable jury could infer that
[his] supervisors did not follow through with established hiring
procedures because they knew that Beckman would not be qualified
for the job." Insofar as this assertion does not simply rehash
Dunn’s attack on Beckman’s qualifications, it fails to explain how
following "established hiring procedures" would have thwarted the
plan to give the manager of desktop services job to Beckman.
Indeed, the only record evidence on this point is that Gianoulis
shared that plan with a representative from the university’s human
resources department, who voiced "no concerns" with it. More
importantly, we fail to see how an attempt to circumvent a job
posting procedure in order to hire a supposedly less qualified
person suggests ageist motivations, in any event. We are left,
then, with the sort of "criticisms of [an employer’s] decision
those requirements, particularly when giving a new job to someone
who was already working there.
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making process" attendant to a reduction-in-force that "fail to
reveal any hidden animus" as a matter of Massachusetts law.
Sullivan, 825 N.E.2d at 542.
Finally, Dunn relies on "ageist statements by Dunn’s
supervisors from which a reasonable jury could conclude that [his]
age played a role in his termination." In support of this
argument, Dunn asserts that "Schroeder and Gianoulis wanted to
project a 'new' youthful image from what they viewed as the
'client-facing' portions of the IT Help Center, and to them [Dunn]
was purportedly 'resistant' to technological change, not
sufficiently forward-looking, and wanted to just 'recreate' the
past." The places in the record that Dunn cites in support of this
assertion, however, do not support much of it--they contain nothing
that could be construed as an expression, or even a betrayal, of
any desire to project a "new, youthful image," as to "client-facing
portions of the IT Help Center" or otherwise.
It was only in explaining why introducing a ticketing
system "was a real uphill battle for [Dunn] and his team" that
Gianoulis cited "[r]esistance to change . . . . [T]hey had been
doing things a long time along the way without a ticketing system."
And it was only in describing his reaction to Dunn’s proposal for
reorganizing the department that Gianoulis testified that Dunn
"wanted to recreate the past. He wanted to go back to the overhead
and the structure that we had" (in response to which, Gianoulis
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recalled, he had "told [Dunn] to stop focusing on the past . . . .
[T]his is a time of change, you’ve got to move forward").
Under Massachusetts law, such "[r]emarks that are
facially ambiguous and may reflect managerial concerns regarding an
employee who declines to adapt to changed business practices,
rather than [the manager’s] preference for more youthful workers,"
cannot provide the evidentiary fuel for an age discrimination
claim. Sullivan, 825 N.E.2d at 536-37 n.24; see also Thomas v.
Sears, Roebuck & Co., 144 F.3d 31, 33-34 & n.1 (1st Cir. 1998)
(ruling that supervisor’s comments that the plaintiff "had been
around too long" and "wasn’t able to change," made in response to
his "outspoken . . . disagreement with [defendant’s] change in
business policy," were not "a coded allusion cloaking age
discrimination" and thus made "no showing that" the defendant’s
stated reason for terminating the plaintiff during a restructuring
was pretextual under Massachusetts law).
Dunn also heavily relies on his own testimony that
Gianoulis, while discussing the creation of a new "service desk
manager" position in April 2010, said "he [was] really looking for
a younger person in that role." This comment also does not suffice
to demonstrate a genuine issue as to whether BU’s stated reasons
for reassigning the duties of Dunn’s job to Beckman as the new
manager of desktop services--a position different from the service
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desk manager job that Gianoulis was discussing with Dunn7--are mere
pretext for age discrimination.
As this court has explained, "[w]hile evidence of age-
related comments may be sufficient to support an inference of
pretext and discriminatory animus" behind a plaintiff’s
termination, that inference does not follow where the plaintiff
"fail[s] to adduce sufficient evidence that the remarks were both
temporally and causally related to [the defendant’s] decision to
discharge him." Melendez v. Autogermana, Inc., 622 F.3d 46, 54
(1st Cir. 2010) (emphasis added). Here, although Gianoulis stated
his preference for "a younger person" for the service desk manager
job just a few weeks before making the decision to eliminate Dunn’s
position, Dunn has not pointed to any evidence suggesting that
Gianoulis also preferred a "younger person" for the desktop
services manager position that he later awarded to Beckman, or even
that he preferred younger workers generally.
To the contrary, it is undisputed that, in carrying out
the May 2010 reorganization, Gianoulis promoted three employees in
their 40s, and retained others who were 56 and 60 years old; Dunn
7
Aside from what appears to be an organizational chart, which
is reproduced in print to small to read, Dunn does not point to
anything in the record supporting his assertion that these
positions "are comparable in terms of seniority." To the contrary,
as noted above, Dunn himself testified that the service desk
manager position was at a "lesser grade [and] pay" than the job he
held prior to his discharge--which, of course, was combined with
Beckman’s then-existing job to create the manager of desktop
services position.
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was the only employee over 40 who suffered any adverse consequences
in the 2010 reorganization.8 So no rational trier of fact could
take Gianoulis’s statement that he was "looking for someone
younger" for the service desk manager position in April 2010 as an
indication that his stated reasons for subsequently reassigning
Dunn’s duties to Beckman and terminating him were pretext for
discriminating against Dunn because he was older than 40--when, as
part of the same reorganization, all other employees age 40 or
older were either retained or promoted. See Torrech-Hernandez v.
Gen. Elec. Co., 519 F.3d 41, 55-56 & n.11 (1st Cir. 2008)
(rejecting plaintiff’s argument that his supervisor’s comment
reflecting a negative "feeling toward older employees in general"
created a triable issue as to pretext, in light of supervisor’s
promotion of other older employees to similar positions).
IV.
For the foregoing reasons, we affirm the district court’s
entry of summary judgment for BU.
8
Dunn asserts that "[a]ll of the new desktop services group
employee hires were under the age of 40," citing to what appears to
be a spreadsheet listing the names, birth years, dates of hire, and
positions of employees in that group as of an unspecified time.
While this exhibit indeed shows that all employees hired into the
group since March 2009 were under 40, all of them were hired into
non-managerial positions, and, moreover, Dunn points to no evidence
suggesting that anyone 40 or older even applied for any of those
jobs. By itself, then (which is how Dunn has presented it), the
list fails to provide any support for Dunn’s age discrimination
claim. See Woodward, 714 F.3d at 639-40
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