Udo v. Tomes

• Decision Date: 07 February 1995
• Docket Number: No. 94-1931,94-1931
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1001, 66 Empl. Prac. Dec. P 43,607 Udo U. UDO, Plaintiff, Appellant, v. Henry TOMES, Commissioner for the Department of Mental Health, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 9

54 F.3d 9

67 Fair Empl.Prac.Cas. (BNA) 1001,

66 Empl. Prac. Dec. P 43,607

Udo U. UDO, Plaintiff, Appellant, v. Henry TOMES, Commissioner for the Department of Mental

Health, Defendant, Appellee.

No. 94-1931.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 1995.

Decided April 28, 1995.

John A. Birknes, Jr., New Bedford, MA, for appellant.

Deborah S. Steenland, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief, for appellee.

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

STAHL, Circuit Judge.

Plaintiff-appellant Dr. Udo U. Udo challenges his layoff from Taunton State Hospital ("Taunton"), which is operated by the Massachusetts Department of Mental Health ("DMH"). Udo claims that DMH laid him off because of age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 626(b), and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e. Udo also claims that defendant-appellee Henry Tomes, the Commissioner of DMH, in his individual capacity deprived him of his civil rights in violation of 42 U.S.C. Sec. 1983. The district court granted summary judgment to defendant, and Udo appeals. We affirm.

I. Background

In October 1990, the Massachusetts state legislature directed all state agencies, including DMH, to implement cost-saving measures to address underfunding in the Fiscal Year 1991 budget. DMH responded to this fiscal emergency with a plan that included significant staff reductions. In connection with its state-wide reduction in force, DMH eliminated the two Physician II positions at Taunton, one of which Udo held. At that time, DMH employed a total of nineteen Physician IIs in its various hospitals. Of those, Udo had the most seniority, having been employed since 1975. Udo was also the only Black and, at sixty-five, the oldest of the nineteen Physician IIs employed by DMH.

Tomes notified Udo by letter dated October 12, 1990, that his position at Taunton had been eliminated. In the letter, in accordance with procedures under which senior employees whose positions are eliminated can "bump" less senior employees, Tomes offered Udo certain bumping options. Tomes also notified Udo that he could request an exit interview with the DMH Equal Employment/Affirmative Action Office to determine if any affirmative action rights had been abridged. Although Udo requested such an interview, no interview was ever conducted. Udo elected to bump into the Physician II position at Metropolitan State Hospital, and, on October 26, 1990, Tomes sent Udo a letter indicating that he had been awarded that position.

After awarding Udo the Physician II position at Metropolitan State Hospital, DMH became aware that, as a result of a disciplinary action for malpractice, the Massachusetts Board of Registration in Medicine had, on October 17, 1990, restricted Udo's license to practice medicine to Taunton. Consequently, in a letter dated November 6, 1990, Tomes informed Udo, "Since your election to practice medicine at Metropolitan State Hospital is contrary to this disciplinary action, you are hereby laid-off effective November 17, 1990."

Udo, a member of the Massachusetts Nurses Association ("MNA"), challenged the elimination of his position and his layoff through the grievance process set out in the union's collective bargaining agreement, arguing that those actions violated the collective bargaining agreement and that they were discriminatory in terms of both age and race. ¹ The arbitrator found that Udo's layoff violated seniority provisions of the collective bargaining agreement and held that the "decision to lay off [Udo] was arbitrary, capricious and unreasonable and in violation of the contract." ² The arbitrator did not consider Udo's discrimination claims.

In April 1992, before his arbitration case was concluded, Udo became aware that Taunton had advertised a Physician II position with a posting date of April 16, 1992, and a closing date of April 24, 1992. On May 8, 1992, the MNA notified Taunton that Udo was eligible to be recalled to that position through the collective bargaining agreement, as the agreement provides for recall following layoff at any time within two years. DMH responded that it had rescinded that announcement and that the position was no longer available. Udo later found out that the position had been filled by an "03" physician. An 03 physician has the same duties as a Physician II, but does not come within the collective bargaining agreement.

In addition to challenging the elimination of his position and his layoff through his union, Udo filed the instant action. The district court granted defendant's motion for summary judgment, and Udo appeals.

II. Discussion

A. Standard of Review

As always, we review a district court's grant of summary judgment de novo and, like the district court, review the facts in the light most favorable to the nonmoving party. See, e.g., Lareau v. Page, 39 F.3d 384, 387 (1st Cir.1994). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

B. Age and Race Discrimination

1. The Legal Framework

In disparate-treatment cases, plaintiffs bear the ultimate burden of proving that they were the victims of intentional discrimination. St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, ---- - ----, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993). When plaintiffs are unable to offer direct proof of their employers' discriminatory animus--as is usually the case and was so here--we allocate the burden of producing evidence according to the now-familiar three-step framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). See, e.g., Hicks, --- U.S. at ----, 113 S.Ct. at 2746 (race discrimination); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.1993) (age discrimination), cert. denied, --- U.S. ----, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994).

Under the McDonnell Douglas framework, plaintiffs bear the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. In reduction-in-force cases, the plaintiff establishes the prima facie case by demonstrating that he or she (1) was a member of a protected class, (2) met the employer's legitimate job-performance expectations, (3) was laid off, and (4) that the employer either did not treat members of the protected class neutrally or retained persons not within the protected class in the same position. See LeBlanc, 6 F.3d at 842.

Once the plaintiff establishes a prima facie case, a presumption arises that the employer unlawfully discriminated against the plaintiff. Hicks, --- U.S. at ----, 113 S.Ct. at 2747; LeBlanc, 6 F.3d at 842. This presumption "places upon the defendant the burden of producing an explanation to rebut the prima facie case--i.e., the burden of 'producing evidence' that the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason.' " Hicks, --- U.S. at ----, 113 S.Ct. at 2747 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). While the burden of production shifts to the defendant during this second step, the burden of persuasion remains on the plaintiff. Hicks, --- U.S. at ----, 113 S.Ct. at 2747.

If the defendant "articulate[s] some legitimate, nondiscriminatory reason for the plaintiff's [layoff]," McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, then the presumption of discrimination established by the plaintiff's prima facie showing "drops out of the picture." Hicks, --- U.S. at ----, 113 S.Ct. at 2749. The burden of production then shifts back to the plaintiff, who is given an opportunity to show that the defendant's stated reason for laying off the plaintiff was a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. "The defendant's 'production' (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven 'that the defendant intentionally discriminated against [him].' " Hicks, --- U.S. at ----, 113 S.Ct. at 2749 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093) (alterations in Hicks ); see also LeBlanc, 6 F.3d at 843 (applying Hicks to age discrimination cases). Thus, once the employer articulates a legitimate, nondiscriminatory reason for laying off the plaintiff, to avoid summary judgment, the plaintiff must introduce sufficient evidence to support two findings: (1) that the employer's articulated reason for laying off the plaintiff is a pretext, and (2) that the true reason is discriminatory. Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995). While the plaintiff may rely on the same evidence to prove both pretext and discrimination, the evidence must be sufficient for a reasonable factfinder to infer that the employer's decision was motivated by discriminatory animus. Id.

2. Application

We shall assume, as the district court did, that Udo established a prima facie case under the McDonnell Douglas formulation for both age and race discrimination. As its reason for laying Udo off, DMH points to the restriction on Udo's medical license that made it impossible for him to bump to another hospital. ³ This reason satisfies DMH's burden of production and shifts the burden back to Udo to prove that DMH's proffered reason is a pretext for discrimination.

Even assuming arguendo that DMH's immediate seizure on the restriction on Udo's license was a pretext for some other...