Fernandes v. Costa Brothers Masonry, 99-1692

• Citation: 199 F.3d 572
• Decision Date: 02 November 1999
• Docket Number: No. 99-1692,99-1692
• Parties: (1st Cir. 1999) HENRY JOHN FERNANDES, ET AL., Plaintiffs, Appellants, v. COSTA BROTHERS MASONRY, INC., Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 572

199 F.3d 572 (1st Cir. 1999)

HENRY JOHN FERNANDES, ET AL., Plaintiffs, Appellants, v. COSTA BROTHERS MASONRY, INC., Defendant, Appellee.

No. 99-1692.

United States Court of Appeals, for the First Circuit.

Heard Nov. 2, 1999.

Decided December 29, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Renee J. Bushey, with whom Michael A. Feinberg and Feinberg, Charnas & Birmingham, P.C. were on brief, for appellants.

Richard W. Gleeson, with whom Gleeson & Corcoran was on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

SELYA, Circuit Judge.

Henry John Fernandes, Richard H. Gilbert, and Benjamin G. Rose, all dark-skinned Cape Verdeans,¹ sued their quondam employer, Costa Brothers Masonry, Inc. (Costa Bros.), alleging a discriminatory failure to rehire. They now appeal from an order granting summary judgment against them. Their appeal requires us to explore how courts charged with resolving discrimination cases should choose between pretext analysis (an approach first limned in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) and mixed-motive analysis (an alternative approach limned later in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion)). We conclude, as did the district court, that the evidence thus far adduced does not trigger mixed-motive analysis. We also conclude, however, that under a properly performed pretext analysis, the appellants' case should have survived. Consequently, we vacate the judgment and remand for further proceedings.

I. THE FACTS

As the summary judgment standard demands, we take the facts in the light most hospitable to the appellants, indulging all reasonable inferences in their favor. See Conward v. Cambridge Sch. Comm., 171 F.3d 12, 17 (1st Cir. 1999). Mindful of this coign of vantage, we deliberately omit from our narrative versions of certain conversations and events that conflict with the appellants' accounts.

In 1995, Stone Building Company secured a contract to construct a new high school in Mashpee, Massachusetts. It engaged Costa Bros. as the masonry subcontractor. Because the job was publicly funded, contractors and subcontractors were told that they had to conform to specific equal employment opportunity (EEO) rules and to issue weekly EEO summaries documenting the number of hours worked by minority employees.

A Portuguese immigrant, Domingos DaCosta, owns Costa Bros. On November 13, 1995, he retained Sebastian Ceribelli, a Brazilian, as the masonry foreman for the Mashpee project. DaCosta and Ceribelli then hired a number of masons and laborers to work on the job. Those engaged on November 27 included five masons -- the appellants and two white males, George Choquette and George Medeiros -- and a dark-skinned Cape Verdean laborer, Glenn Spinola. These six men worked as a team until December 7, when Ceribelli laid off all six due to winter weather conditions and lack of heat in the workplace. He vowed that he would recall them when the heating quandary had been solved. Other workers were laid off at roughly the same time (although some, unlike the appellants, were assigned to ongoing Costa Bros. projects elsewhere).

On or about December 13, Costa Bros. resumed work on the Mashpee project. It recalled some masons (but not the appellants). Gilbert visited the job site the following week and asked Ceribelli when he would be rehired. Ceribelli responded, "The way things are going now . . . I wouldn't count on it."

Rose sojourned to the site the next Saturday. He noticed masons working there and queried DaCosta about this circumstance. DaCosta replied, "We're doing a little fixing up here." Rose then asked, "Are we going to get called back?" DaCosta responded, "We're going to close in" -- a comment that Rose reasonably took to mean that the building would be enclosed in order to create a heated space in which masons could work.

Having heard nothing further, Rose checked back two weeks later. He saw that the job site was fully heated and asked DaCosta, "Aren't we coming back?" DaCosta replied cryptically, "Well, I got my men." When Rose inquired about what had happened to the plan to recruit residents and minorities, DaCosta stated, "I don't need minorities, and I don't need no residents on this job. I got my men." Rose complained that DaCosta had "twelve new faces" working on the project, but DaCosta abruptly terminated the conversation.

In point of fact, Costa Bros. recalled a total of eighteen workmen (masons and laborers) between December 13 and January 25, and hired ten new ones in that span (none of whom had worked previously for Costa Bros.). All twenty-eight were white males.²

Fernandes returned to the job site on numerous occasions in December and January. Each time, DaCosta told him that there was no work available but to come back again. After several weeks, Fernandes asked Ceribelli why he and the other Cape Verdeans had not been recalled. Ceribelli replied that Costa Bros. "had only hired a few minorities because of local pressure."

On January 30, DaCosta, James Byrne (the clerk of the works), and a representative of the general contractor met with Fernandes, Raoul Galvin (a civil rights activist), and others from the local community regarding Costa Bros.'s compliance with EEO requirements. Galvin noted that Costa Bros. had hired more workers, all of whom were white, but that it had no minorities working at the site. He implored DaCosta to rehire Fernandes because "whatever was going on at the time would stop if he at least put one of [the Cape Verdeans] back to work." DaCosta indicated that he would honor this request.

Fernandes reported for duty the following Monday but was informed that there was no work available. This experience was repeated several times. Costa Bros. finally restored Fernandes to the payroll on March 26, albeit as a laborer rather than as a mason. On the same day, Ceribelli warned him to "watch out" because DaCosta was "going to be on [his] back." This prediction proved prophetic: according to Fernandes, DaCosta "followed [him] around," constantly "hollering and screaming" at him.

When Fernandes reported for work the next morning, DaCosta instructed him to get an "F block" (or so he thought). Fernandes was unsure what an "F block" was and asked DaCosta (who, as matters turned out, had wanted a standard "half block"). After castigating Fernandes for his ignorance, DaCosta declared that he was "tired of . . . what's going on between you guys," and voiced the opinion that "[y]ou guys are trying to hurt me." He then proclaimed: "I don't have to hire you locals or Cape Verdean people. This is my business. It belongs to me." At that juncture, DaCosta fired Fernandes.

II. TRAVEL OF THE CASE

After pursuing administrative remedies, see 42 U.S.C. § 2000e-5(e); Mass. Gen. Laws ch. 151B, § 5, the appellants sued. In their complaint, they alleged discrimination on the basis of race and color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and its state-law analogue, Mass. Gen. Laws ch. 151B, § 4(1). Costa Bros. denied the material allegations of the complaint, and the parties spent the next year conducting pretrial discovery. From the record and the briefs, it appears that the appellants' original claim was constructively amended to include discrimination predicated on national origin, and the case went forward on that assumption.

In due course, Costa Bros. moved for summary judgment, see Fed. R. Civ. P. 56, and the appellants filed an opposition. The district court heard oral argument, took the matter under advisement, and thereafter granted the motion as to all claims. In its unpublished rescript, the court characterized DaCosta's statement that "I don't need minorities . . . on this job" as a stray remark, insufficient to trigger mixed-motive analysis. Although the court catalogued DaCosta's comment that "I don't have to hire you locals or Cape Verdean people" in its recitation of the facts, it did not mention this comment thereafter.

Undertaking pretext analysis, the court focused on two white masons who had been hired in January 1996 -- Piper and Winters. The court ruled that the Piper hiring did not assist the appellants because Piper had special skills and they could not establish that their qualifications were equivalent to his. As to Winters, the court accepted Costa Bros.'s explanation that it had hired him on the recommendation of another employee, characterizing what had happened as cronyism rather than discrimination. The court never discussed whether the record sufficed to support a finding that this explanation was pretextual, nor did it explore the numerous other employment decisions that Costa Bros. made in the December-January time frame. This appeal followed.

III. DISCUSSION

The appellants asseverate that the district court erred in choosing a legal framework and that, even if the court marched down an acceptable analytic path, it did not stay on track. We consider these arguments in sequence, pausing first to frame the choice-of-approach issue. We then briefly address the appellants' state-law claim.

A. The Available Analytic Methods.

A plaintiff alleging disparate treatment under Title VII may proceed on a mixed-motive approach or on a pretext approach. For purposes of this case, it is important to understand the basic difference between these two modalities.

Mixed-motive analysis applies when the evidence shows that an employer considered both a proscribed factor (say, race) and one or more legitimate factors (say, competence) in making a challenged employment decision. See Price Waterhouse, 490 U.S. at 241-42. In that scenario, the plaintiff is not obliged to separate...