Shorette v. Rite Aid of Maine, Inc.

Decision Date29 July 1998
Docket NumberNo. 98-1005,98-1005
Citation155 F.3d 8
Parties78 Fair Empl.Prac.Cas. (BNA) 736, 74 Empl. Prac. Dec. P 45,576 Peter W. SHORETTE, Sr., Plaintiff, Appellant, v. RITE AID OF MAINE, INC., Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Arthur J. Greif, with whom Charles E. Gilbert III and Gilbert Law Offices, P.A. were on brief for appellant.

Anne M. Carney, with whom Jonathan W. Brogan and Norman, Hanson & DeTroy were on brief for appellee.

Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and STAHL, Circuit Judge.

CYR, Senior Circuit Judge.

Peter W. Shorette, Sr., appeals from the district court judgment which dismissed his age discrimination claim against his former employer, Rite Aid of Maine, Inc. ("Rite Aid"). We affirm.

I BACKGROUND

For nearly thirty years Shorette worked as a store manager for LaVerdiere Drug Stores ("LaVerdiere"). In 1994, Rite Aid, a LaVerdiere competitor, constructed a new store across the street from the LaVerdiere store which Shorette managed in Fairfield, Maine. Later that year Rite Aid acquired LaVerdiere, and converted all seventy-four LaVerdiere stores into Rite Aid stores. Shorette, then 60 years of age, was receiving an annual salary of $31,000 at the time, whereas Rite Aid store managers received roughly $25,000. Unlike LaVerdiere store managers, moreover, all Rite Aid store managers were provided in-store computer systems with which to perform various managerial functions, such as inventory and payroll. After the LaVerdiere takeover, Rite Aid advised all former LaVerdiere managers that it would retain them as managers, and train them on the Rite Aid computer system. Since the Fairfield store which Shorette managed was next door to the newly constructed Rite Aid store, and therefore redundant, it was slated for closure. Before the Fairfield store closed, however, Rite Aid brought in a temporary computer setup in order to provide Shorette and his staff with six days of in-store training. Thereafter, Rite Aid transferred Shorette's staff to the new Rite Aid store, leaving Shorette alone to man the old store until it was closed one month later. Finally, during this interim period Shorette and other former LaVerdiere managers attended a one-day computer training class.

After the old store closed, Rite Aid transferred Shorette to its Augusta store as an "assistant manager" or "manager trainee" until such time as a new managership became available. During this period, Shorette continued to receive his $31,000 annual salary, while the Augusta store manager, Charles Pattershall, instructed him on how to perform managerial tasks on the computer. After three months, however, Pattershall reported to Rite Aid District Manager Thurston Gilman that Shorette had been able to make little progress. In December 1994, Gilman met with Shorette and informed him that computer proficiency was an essential function for all Rite Aid store managers. Although Pattershall resumed the training effort with Shorette, he reported little headway.

One month later Gilman transferred Shorette to the Rite Aid store in Waterville, whose manager, Wayne Cyrway, was a former LaVerdiere store manager who had proven especially adept at training store managers on the Rite Aid computer system. After initially observing that Shorette had poor computer skills, Cyrway determined to start "from scratch," and provided Shorette with one-on-one, in-store computer training for up to twenty hours weekly. Over the In April 1995, Lucier informed Cyrway that Rite Aid had decided to discontinue training Shorette for a store managership due to Shorette's continued inability to learn the Rite Aid computer system. Lucier asked Cyrway if he would be willing to take Shorette on at the Augusta store as his key cashier, a lower-paying position which required less computer proficiency. Cyrway agreed. The next day Lucier met with Shorette to inform him that Rite Aid could not "afford" to retain him any longer as an assistant manager. After he was given the choice of resigning or being demoted to key cashier, Shorette elected to resign.

next three months, James Lucier, the Rite Aid human resources manager, checked with Cyrway, who reported that Shorette seemed unable to absorb and retain the rudimentary concepts of computer operation.

In due course Shorette filed a five-count complaint against Rite Aid in Maine superior court, which Rite Aid removed to federal district court. The complaint alleged, inter alia, that Rite Aid deliberately forced Shorette to resign because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. After discovery had been completed, Rite Aid successfully moved for summary judgment on all counts and Shorette appealed. 1

II DISCUSSION

Shorette contends that he adduced adequate evidence to generate a trialworthy issue as to whether Rite Aid forced him to resign because of his age in violation of the ADEA. 2 At all times ADEA plaintiffs bear the burden of proving that their employer discriminated against them on account of their age. See Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir.1997); Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 723 (1st Cir.1994). Hence, at the summary judgment stage Rite Aid could prevail only if Shorette failed to adduce sufficient evidence from which a rational factfinder could return a verdict in his favor, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 116 (1st Cir.1998), without resorting to "conclusory allegations, improbable inferences, and unsupported speculation," Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

Absent direct evidence of discriminatory intent, an ADEA plaintiff may present circumstantial evidence pursuant to the familiar three-stage, burden-shifting paradigm. See Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995). At the first stage, the plaintiff employee must make a prima facie demonstration that he: "(1) was at least forty years of age, (2) met the employer's legitimate job performance expectations, (3) experienced adverse employment action, and (4) was replaced by a person with roughly equivalent job qualifications." Hidalgo, 120 F.3d at 332 (citation omitted). 3 Once established, the prima facie case raises a presumption that the employer was motivated by discriminatory animus. Id. at 334. The burden of production then shifts to the employer to articulate--though not to prove--a legitimate nondiscriminatory basis for its employment decision. Id. Once the

                employer meets its limited burden of production, the presumption of discrimination generated by the prima facie case is stricken from the calculus, and the burden returns to the employee to prove not only (1) that the reason the employer articulated for the challenged employment action was a pretext or sham, but (2) that its real reason was the employee's age.  Id. at 335.   Thus, "[i]n pursuing [the third-stage] inquiry, we focus on whether the employer believed that its proffered reason was credible.  That is, [plaintiff] must do more than cast doubt on the rationale proffered by the employer, the 'evidence must be of such strength and quality as to permit a reasonable finding that the ... [termination] was obviously or manifestly unsupported.' "  Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir.1997) (emphasis added) (citations omitted)
                

A. Direct Evidence of Discriminatory Animus

Shorette maintains that various remarks by Rite Aid managers amounted to direct evidence of Rite Aid's age-based animus. First, around the time Rite Aid acquired LaVerdiere, Shorette's district manager, Roland Hughes, asked Shorette how old he was and when he planned to retire. Assuming as much, this is not only a textbook example of an isolated remark which demonstrates nothing, but Shorette was not able to state whether Hughes made the statement before or after the Rite Aid takeover. Consequently, it is impossible to impute the remark to Rite Aid. Moreover, even assuming the remark was made after the Rite Aid takeover, Shorette adduced no evidence that Hughes had authority to determine whether Shorette was to be retained by Rite Aid, nor that Hughes played any role in the decision to demote Shorette to key cashier. See Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 6 n. 8 (1st Cir.1998) (noting that "stray remarks in the workplace ..., statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself" normally are insufficient to prove employer's discriminatory animus) (citation omitted); Medina-Munoz, 896 F.2d at 10.

Second, Wayne Cyrway twice advised Shorette and his wife: "[Y]ou have a perfect case of age discrimination, and you'd be crazy not to pursue it." Shorette insists that these statements support a rational inference that Cyrway had been privy to Rite Aid's decisionmaking processes and enabled Cyrway to acquire some undisclosed information regarding the alleged discriminatory rationale which motivated Rite Aid to demote Shorette. We conclude, however, that Shorette adduced insufficient evidence to permit the attribution of Cyrway's remarks to Rite Aid.

In Connell v. Bank of Boston, 924 F.2d 1169 (1st Cir.1991), a bank officer attested that the defendant bank had intended to eliminate more senior employees than younger employees during a planned reduction-in-force. We identified three reasons for holding the evidence insufficient to withstand the bank's motion for summary judgment. First, the plaintiff had adduced no evidence that the affiant had participated in the bank's decisionmaking process with respect to the reduction-in-force. Second, the plaintiff offered no other specific evidence as to how the affiant might have learned the true intent of the bank's decisionmakers....

To continue reading

Request your trial
100 cases
  • Richardson v. Mabus
    • United States
    • U.S. District Court — District of Maine
    • 24 Agosto 2016
    ...him for the supervisory position. In short, Mr. Richard falls far short of a showing of pretext. See, e.g. , Shorette v. Rite Aid of Me., Inc., 155 F.3d 8, 13 (1st Cir.1998) (asking the plaintiff "how old he was and when he planned to retire" was "a textbook example of an isolated remark wh......
  • Sellers v. U.S. Dept. of Defense
    • United States
    • U.S. District Court — District of Rhode Island
    • 16 Julio 2009
    ...of reprimand. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir.1998). It is fundamental that "[a] claim of disparate treatment based on comparative evidence must rest on proof that ......
  • Alberti v. Univ. of Puerto Rico
    • United States
    • U.S. District Court — District of Puerto Rico
    • 13 Octubre 2011
    ...but also that its true reason was Plaintiff's national origin. Rodríguez–Cuervos, 181 F.3d at 19, citing Shorette v. Rite Aid, 155 F.3d 8, 12 (1st Cir.1998). The record has extensive documentary and testimonial evidence in support of the reasons provided by the UPR to terminate Alberti. Doc......
  • Mandavilli v. Maldonado
    • United States
    • U.S. District Court — District of Puerto Rico
    • 22 Febrero 1999
    ...bears the ultimate burden of proving that the adverse employment action was taken on account of age. See Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 12 (1st Cir.1998) (citing Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir.1997)); Sanchez v. Puerto Rico Oil ......
  • Request a trial to view additional results
3 books & journal articles
  • Pre-Trial Procedures and Documents
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 2 - Practice
    • 1 Mayo 2023
    ...inquiries regarding plaintiff’s retirement plans in an age discrimination case were “stray remarks”). Shorette v. Rite Aid of Maine , 155 F.3d 8, 13 (1st Cir. 1998) (finding that asking the plaintiff “how old he was and when he planned to retire” was “a textbook example of an isolated remar......
  • Age discrimination
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • 30 Abril 2014
    ...§630(f)), so as to be excepted from coverage of Act, 110 A.L.R. Fed. 490. Federal Circuits First: Shorette v. Rite Aid of Maine, Inc. , 155 F.3d 8, 12 (1st Cir. 1998). Second: Scaria v. Rubin , 117 F.3d 652, 654 (2d Cir. 1997). Fourth: Burns v. AAF-McQuay, Inc. , 96 F.3d 728, 731 (4th Cir. ......
  • The implications of psychological research related to unconscious discrimination and implicit bias in proving intentional discrimination.
    • United States
    • Missouri Law Review Vol. 73 No. 1, January 2008
    • 1 Enero 2008
    ...v. Hopkins, 490 U.S. 228 (1989); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). (145.) See, e.g., Shorette v. Rite Aid of Me., Inc., 155 F.3d 8, 13 (1st Cir. 1998) (discriminatory statements related to the decisional process may be sufficient to prove an employer's alleged discriminatory......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT