DocketNumber： 91-2334
Filed Date： 6/8/1992
Status： Precedential
Modified Date： 9/21/2015
June 8, 1992 [NOT FOR PUBLICATION]
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No. 91-2334
CONRAD GRAHAM,
Plaintiff, Appellant,
v.
GORHAM SCHOOL DISTRICT,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Norman H. Stahl, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Roney,* Senior Circuit Judge,
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and Pieras,** District Judge.
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Shawn J. Sullivan, with whom Cook & Molan, P.A., was on
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brief, for appellant.
Eleanor H. MacLellan, with whom Sulloway Hollis & Soden was
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on brief, for appellee.
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*Of the Eleventh Circuit, sitting by designation.
**Of the District of Puerto Rico, sitting by designation.
Per Curiam. This is a failure-to-hire suit brought
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pursuant to the federal Age Discrimination in Employment Act
(ADEA), 29 U.S.c. 621-634 (1988). The district court granted
summary judgment in the defendant's favor. The plaintiff
appeals. We affirm.
The court below premised its order on a finding that
plaintiff "offered no evidence to suggest that defendant's
proffered justification for not hiring him is, in fact, an effort
on defendant's part to disguise a discriminatory animus," thus
failing to create a triable issue on the question of pretext.1
The plaintiff's attempt to cast doubt upon this finding as a
matter of fact is jejune. When, as here, the focus is on what we
have termed "the ultimate question," that is, "whether, on all
the evidence of record, a rational factfinder could conclude that
age was a determining factor in the employer's decision [to fire
the employee]," Mesnick v. General Elec. Co., 950 F.2d 816, 825
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(1st Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3689 (U.S.
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March 9, 1992), the plaintiff must produce some probative
evidence of a particularized discriminatory animus in order to
survive summary judgment. Id. at 825-26. The evidence produced
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must be sufficiently sturdy so that "a rational jury could infer,
without the most tenuous insinuation," that the employer's
professed reason for firing the plaintiff "was actually a pretext
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1The lower court found that the plaintiff had established a
prima facie case. We question one component of that finding but,
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for purposes of this opinion, we assume arguendo, favorably to
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plaintiff, that the court was correct.
2
for age discrimination." Id. at 826 (emphasis in original). The
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record before us contains no such accumulation of probative
evidence. The scraps to which the plaintiff alludes, taken in
the light most congenial to his cause, are less weighty than the
evidence we have ruled inadequate in a series of other,
comparable cases.2 See, e.g., id.; Medina-Munoz v. R.J.
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Reynolds Tobacco Co., 896 F.2d 5, 9-10 (1st Cir. 1990); Menzel v.
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Western Auto Supply Co., 848 F.2d 327, 329-30 (1st Cir. 1988);
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Dea v. Look, 810 F.2d 12, 15 (1st Cir. 1987).
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The plaintiff also argues that it was unnecessary for
him to produce direct or circumstantial evidence of
discriminatory animus, asseverating that such animus can be
inferred from a showing of pretext, without more. This argument,
however, flies in the teeth of settled circuit precedent. See,
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e.g., Mesnick, supra; Medina-Munoz, supra; Menzel, supra; Dea,
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supra; see also Connell v. Bank of Boston, 924 F.2d 1169, 1175
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(1st Cir.), cert. denied, 111 S. Ct. 2828 (1991). The course
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that plaintiff proposes is simply not open to us. We have held,
with echolalic regularity, that in a multi-panel circuit, newly
constituted panels are bound by prior panel decisions closely in
point. See, e.g., Fournier v. Best Western Treasure Island
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Resort, ___ F.2d ___, ___ (1st Cir. 1992) [No. 91-2174, slip op.
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at 4]; Metcalf & Eddy, Inc. v. P.R.A.S.A., 945 F.2d 10, 12 (1st
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Cir. 1991), cert. granted, 112 S. Ct. 1290 (1992); United States
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2Indeed, plaintiff's counsel admitted as much at oral
argument.
3
v. Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert. denied, 112 S.
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Ct. 441 (1991); Kotler v. American Tobacco Co., 926 F.2d 1217,
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1223 (1st Cir. 1990), petition for cert. filed, 59 U.S.L.W. 3674
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(U.S. March 19, 1991); Jusino v. Zayas, 875 F.2d 986, 993 (1st
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Cir. 1989); Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.), cert.
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denied, 479 U.S. 888, (1986). "The orderly development of the
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law, the need for stability, the value of results being
predictable over time, and the importance of evenhanded justice
all counsel continued fidelity to this principle." Metcalf &
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Eddy, 945 F.2d at 12.3 We adhere to stare decisis here.
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We need go no further. Because we, like the district
court, are unable to find in this record any evidence fairly
probative of age discrimination, and because we are both unable
and unwilling to alter clear circuit precedent, we must affirm
the judgment below. The ADEA, after all, "does not stop a
company from discharging an employee for any reason (fair or
unfair) or for no reason, so long as the decision to fire does
not stem from the person's age." Freeman v. Package Machinery
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Co., 865 F.2d 1331, 1341 (1st Cir. 1988). By the same token, the
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ADEA does not prohibit an employer from refusing to hire or
promote an applicant
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3There are, of course, certain narrowly defined exceptions
to the principle, such as when a panel opinion is undercut by
controlling authority subsequently announced, or when such an
opinion must yield to "the most persuasive showing of collateral
authority." Metcalf & Eddy, 945 F.2d at 13. None of these
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exceptions apply to the case at hand.
4
for any reason (fair or unfair) or for no reason, so long as age
does not creep into the calculus.
Affirmed.
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5
52 Fair empl.prac.cas. 253, 52 Empl. Prac. Dec. P 39,659 ... , 896 F.2d 5 ( 1990 )
Joanne Kotler, Individually and as Administratrix, Etc. v. ... , 926 F.2d 1217 ( 1990 )
Allen P. DEA, Plaintiff, Appellant, v. Christopher S. LOOK, ... , 810 F.2d 12 ( 1987 )
Leonard Lacy v. Joseph Gardino, Superintendent, ... , 791 F.2d 980 ( 1986 )
Herbert MENZEL, Et Al., Plaintiffs, Appellants, v. WESTERN ... , 848 F.2d 327 ( 1988 )
Waddie Jusino v. Carmen Sonia Zayas, Etc. , 875 F.2d 986 ( 1989 )
Samuel Mesnick v. General Electric Company , 950 F.2d 816 ( 1991 )
49 Fair empl.prac.cas. 1139, 48 Empl. Prac. Dec. P 38,456, ... , 865 F.2d 1331 ( 1988 )
Thomas B. Connell v. Bank of Boston and John S. Ingalls , 924 F.2d 1169 ( 1991 )
Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer ... , 945 F.2d 10 ( 1991 )