183 F.3d 38 (1st Cir. 1999), 98-2231, Thomas v. Eastman Kodak Co.

Docket Nº:98-2231.
Citation:183 F.3d 38
Party Name:MYRTLE THOMAS, Plaintiff, Appellant, v. EASTMAN KODAK COMPANY, Defendant, Appellee.
Case Date:July 15, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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183 F.3d 38 (1st Cir. 1999)

MYRTLE THOMAS, Plaintiff, Appellant,


EASTMAN KODAK COMPANY, Defendant, Appellee.

No. 98-2231.

United States Court of Appeals, First Circuit

July 15, 1999

Heard Nov. 3, 1998.


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Marisa A. Campagna, with whom the Law Offices of Marisa A. Campagna were on brief, for appellant.

Michael A. Fitzhugh, with whom Jon M. Nelson and Fitzhugh & Associates were on brief, for appellee.

Before Lynch, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

LYNCH, Circuit Judge.

In 1993, Myrtle Thomas, the only black Customer Service Representative in Eastman Kodak's Wellesley, Massachusetts office, was laid off. Thomas responded with a race discrimination suit against Kodak under Title VII, 42 U.S.C. §§ 2000e to e-17, arguing that Kodak's layoff decision was discriminatory because it resulted from a ranking process that relied on racially biased performance appraisals prepared in 1990, 1991, and 1992. Kodak made two arguments in its motion for summary judgment: first, that Thomas's claim was time-barred because the performance appraisals were conducted outside of Title VII's statutory limitation period, and second, that Thomas failed in any event to present enough evidence of racial animus to support a disparate treatment claim. The district court disagreed with the first point but agreed with Kodak's second argument and granted summary judgment. Both issues are before us on appeal.

We decide both in favor of Thomas. We find Thomas's claim to be timely because the discriminatory appraisals that she is challenging first caused her concrete harm when they led to her layoff in 1993. Because we also find that she has presented enough evidence to support her claim that the performance appraisals were racially biased, we reverse the district court's grant of summary judgment and remand for further proceedings.

After thirty-five years of litigation under Title VII, cases can still present new wrinkles. This is one such case. Because it raises a number of important issues -- some new and some familiar but difficult -- we preview the key holdings.

First, when an employer utilizes scores from past performance appraisals in an objective formula to determine who will be laid off, and the laid-off employee suffered no earlier concrete harms from those appraisals, the accrual date for the limitations period is the date of the notice of layoff, not the date of the performance appraisals.

Second, once there is sufficient evidence to create a material issue of fact that the employer's articulated reason for an adverse employment action is a pretext, there is no requirement that a plaintiff always produce direct evidence to demonstrate that the real reason was discriminatory.

Third, Title VII's prohibition against "disparate treatment because of race" extends both to employer acts based on conscious racial animus and to employer decisions that are based on stereotyped thinking or other forms of less conscious bias.

Fourth, under the McDonnell Douglas/Burdine framework, a court may not enter summary judgment for an employer based upon a non-discriminatory reason not articulated by the employer but identified sua sponte by the district court.


In reviewing a grant of summary judgment, we consider the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor. See Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir. 1998). Given the subtlety of the questions before

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us, we outline Thomas's experiences at Kodak in some detail.

Thomas was a long-term Kodak employee. She first began working for the company in 1974. In 1980, after working for six years in clerical and administrative positions in Kodak's Rochester, New York facility, she was promoted to Customer Support Representative ("CSR") within the Office Imaging Division and transferred to Kodak's office in Wellesley, Massachusetts.

Along with five other CSRs working out of the Wellesley office, Thomas supported customers in an assigned territory who owned Kodak copiers and other Kodak equipment. She helped salespeople perform installations, trained customers in the use and maintenance of Kodak equipment, facilitated communication between customers and sales and service personnel, and provided other forms of marketing support.

Thomas generally performed her job well. Kodak managers who supervised Thomas during her first ten years as a CSR in the Wellesley office reported variously that they were never dissatisfied with her performance, that they were "delighted" with Thomas, that her work was "excellent" and "far superior" to that of some of the other CSRs, that she was "very much on top of things," and that she was "the perfect support person."

Co-workers and customers expressed similar sentiments. A sales representative who worked with Thomas sent a memorandum to Thomas's supervisor praising her "continuous professionalism," "very high level of commitment," and "total dedication." The sales representative later noted that he was particularly impressed with the way a certain customer "really went out of his way" to emphasize his satisfaction with Thomas's support. Another customer who contacted Kodak after Thomas's layoff described Thomas as "an irreplaceable part of the Kodak team" and explained that Thomas was the primary reason for his selection of Kodak copiers over copiers from other companies. The customer concluded: "In my many contacts with company representatives, I have not met anyone of the class and caliber of Myrtle Thomas."

Because of her high level of performance, Thomas received awards and bonuses from Kodak. In 1989, the company also changed Thomas's grade from K4 to K6, which resulted in a salary increase. According to Kodak's job description, the K6 grade was limited to CSRs who were "making an outstanding contribution to the support activities," defined as "servicing the largest and/or most sensitive accounts, developing and giving individualized presentations and/or demonstrations, and training new CSRs." Thomas received at least eight other salary increases during her years as a CSR. At the time of the 1993 layoff, Thomas was the fourth most senior CSR in the Wellesley office and earned the third highest salary.

The Kodak compensation plan stated that "[t]he company's goal for [its] pay program is to reward each individual's job performance appropriately" and to ensure that "[p]eople with higher performance will, over time, be paid more than average performers." The company made use of annual performance appraisals in order to reach this goal. According to the compensation plan, performance appraisals were also used for a number of other purposes, including:

A. Evaluating and documenting the performance of each individual in comparison with performance expectations for the job.

B. Providing individuals with constructive feedback.

C. Identifying the guidance and training that can help individuals be as successful as their ability permits.


D. Determining who should be promoted, transferred, demoted, terminated, laid off, and re-employed.

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To conduct an appraisal, the supervisor who directed an employee's day-to-day activities filled out an appraisal form. The form contained a section pertaining to "basic performance measures," which included categories for quality of results, quantity of results, job skills, and teamwork. Another section pertained to "additional performance measures," including dependability, versatility, communications, and leadership. The form required the supervisor to give the employee a rating from 1 to 7 for each applicable category, as well as an overall rating.1 A separate section of the appraisal form contained space for the supervisor's comments on the evaluated categories, a description of any developmental opportunities, a description of matters discussed during the post-appraisal interview with the employee, and both supervisor and employee signatures. Each appraisal was also reviewed and signed by the appraiser's supervisor. The appraiser and the appraiser's supervisor were together responsible for the appraisal's accuracy, consistency, and conformance to company policy, including a policy favoring fair and objective evaluations, conducted "without regard to non-job-related criteria such as[] race."

Kodak intended the appraisal scores to be on a curve, company-wide. The compensation plan suggested that "performance appraisal ratings for large groups of people (approximately 100 or more) [should] average around the middle of the rating scale," but acknowledged that factors such as the amount of turnover and the percentage of long-term employees could influence the distribution of ratings in any given group, particularly groups with a small number of employees. The compensation plan suggested that appraisers attempt to validate their distribution of appraisal ratings by rank-ordering employees in the same grade and job category. After the rank ordering was complete, supervisors would finalize the preliminary ratings to agree with the rank-order results. However, these rank orderings were not discussed with employees. Supervisors were told that "[a]ppraisals verified through this process [should be] communicated by referencing performance relative to job expectations with no reference to the rank-order process."

Thomas's appraisals for 1988 and 1989 show that she was performing at a high level. In 1988, when she was responsible...

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