Connell v. Bank of Boston

• Decision Date: 08 June 1990
• Docket Number: No. 90-1160,90-1160
• Citation: 924 F.2d 1169
• Parties: 54 Fair Empl.Prac.Cas. 1583, 55 Empl. Prac. Dec. P 40,545, 59 USLW 2543 Thomas B. CONNELL, Plaintiff, Appellant, v. BANK OF BOSTON and John S. Ingalls, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1169

924 F.2d 1169

54 Fair Empl.Prac.Cas. 1583,

55 Empl. Prac. Dec. P 40,545, 59 USLW 2543

Thomas B. CONNELL, Plaintiff, Appellant, v. BANK OF BOSTON and John S. Ingalls, Defendants, Appellees.

No. 90-1160.

United States Court of Appeals, First Circuit.

Heard June 8, 1990.

Decided Jan. 28, 1991.

Edward M. Perry with whom Perkins, Smith & Cohen, Boston, Mass., were on brief, for plaintiff, appellant.

Scott C. Moriearty with whom Marianne Meacham and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendants, appellees.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRES, ^* District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal in an age discrimination case by plaintiff-appellant Thomas B. Connell from a summary judgment in favor of plaintiff's employer the Bank of Boston, and John S. Ingalls, the bank official who discharged plaintiff.

The complaint had five counts: Count I alleged that plaintiff was discharged effective June 30, 1986, because of his age in violation of 29 U.S.C. Sec. 623; Mass.Gen.L. ch. 149, Sec. 24A, and Mass.Gen.L. ch. 151B; Count II alleged discrimination based on retaliation; Count III alleged willful age discrimination in violation of 29 U.S.C. Sec. 626(d) ¹ (1976); Count IV alleged breach of implied contract for fringe and pension benefits; and Count V alleged the intentional infliction of emotional distress.

The district court found that "the plaintiff has not presented evidence which would permit a jury to conclude that the abolition of his job flowed from other than legitimate business considerations." It therefore granted summary judgment on Counts I, II and III. It dismissed Counts IV and V on the basis of "persuasive authority." No appeal has been taken from the dismissal of Counts IV and V.

STANDARD OF REVIEW

A. Summary Judgment Generally

Fed.R.Civ.P. 56(c) is the starting point. It provides in pertinent part:

The judgment sought shall be rendered forthwith if 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.

The words "genuine issue of material fact" have been judicially refined and defined:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). This teaching was reiterated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Id. at 322, 106 S.Ct. at 2552. See also Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1st Cir.1990); Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1106 (1st Cir.1989).

B. Summary Judgment In An ADEA Case

In the absence of direct evidence of age discrimination, as is the case here, an ADEA plaintiff in a discharge case must clear two hurdles. He must first produce evidence establishing a prima facie case. This hurdle has several requirements. Plaintiff must show:

1. He was within the protected age group, that is 40-70 years of age; ²

2. He was performing his job at a level that met his employer's legitimate expectation; and

3. He was replaced by someone with roughly similar qualifications.

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8-9 (1st Cir.1990); Loeb v. Textron, Inc., 600 F.2d 1003, 1011 (1st Cir.1979).

If a prima facie case is made, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for plaintiff's discharge. The articulation of such a reason nullifies the inference raised by the prima facie case. See Medina-Munoz, 896 F.2d at 9; Menard v. First Sec. Services Corp., 848 F.2d 281, 285 (1st Cir.1988). Plaintiff must then clear the second hurdle by showing that the employer's articulated reasons were only a pretext for age discrimination. The plaintiff is required to "do more than simply refute or cast doubt," on the employer's rationale. He must "also show a discriminatory animus based on age." ³ Medina-Munoz, 896 F.2d at 9. The key question becomes whether the employer fired plaintiff because of his age. Id. We do not second-guess the business decisions of an employer. Rossy v. Roche Products, Inc., 880 F.2d 621, 625 (1st Cir.1989).

With these principles as our guide, we now turn to the facts, viewing them in the light most favorable to the plaintiff, the party opposing the motion, and indulging all inferences favorable to him. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988).

THE FACTS

A. Prima Facie Case

Plaintiff was forty-seven years old when he was discharged by the Bank. This puts him within the age category covered by the We turn to the next requirement, that he was performing his job at a level that met the Bank's legitimate expectations. Plaintiff started working for the Bank in 1963 as a teller in the Branch Division. He remained in this division for fourteen years, serving as head note teller at the Kenmore Square branch for seven years and teller-in-charge at the South Boston branch for more than two years. His job evaluations during his time as a teller can fairly be described as fair to good. There is no indication that he was considered an outstanding employee. We need not go into the details of plaintiff's work evaluations during his time as teller because it is the appraisals of his work in the Municipal Finance Unit of the Public Finance Division, where he was employed when he was discharged, that are pertinent.

ADEA. 29 U.S.C. Sec. 631(a). He thus has met the first requirement for a prima facie case.

In 1977 plaintiff was transferred, presumably at his own request because of better promotion opportunities, to the Municipal Finance Unit. He became an officer of the Bank in 1978 and an assistant vice-president in 1982. His performance as an officer was rated as competent. The officers' job performances were rated in accord with a scale: 1 (Unsatisfactory); 2 (Fair); 3 (Competent); 4 (Commendable); and 5 (Distinguished). In an Officer Performance Appraisal dated November 2, 1981, he received an overall performance rating of 3 (Competent). This was followed by an Officer Performance Appraisal dated November 23, 1982, of 4-. The next Officer Performance Appraisal, dated November 28, 1983, gave him an overall performance rating of 3+. He received the same score on the appraisal of November 2, 1984. Plaintiff received a 3 rating in the next appraisal dated September 11, 1985. This is the last job evaluation appraisal in the record. ⁴ Viewing the facts in the light most favorable to plaintiff, we find that he has met the second requirement for a prima facie case: he was performing at a level that met the Bank's legitimate expectations; he was never rated less than a competent bank officer.

The final requirement for making a prima facie case is that he was replaced by someone with qualifications similar to his own. This is perhaps arguable, since the Municipal Finance Unit in which plaintiff served was disbanded. However, plaintiff presented evidence that after the date of plaintiff's termination, June 30, 1986, two people, both younger than plaintiff, were hired and placed in the Public Merchant Banking Unit which ostensibly took on the functions of the Municipal Finance Unit. Viewing the record most favorably to plaintiff, we believe he sufficiently established the third prong of a prima facie case. ⁵ The Bank, in any event, as described below, countered by articulating a legitimate non-discriminatory reason for his discharge. By so doing, the Bank nullified any discriminatory inference raised by the prima facie case and left as the sole dispositive question, the following: Has plaintiff raised a genuine factual issue concerning whether the Bank's articulated reason was but a pretext for age discrimination?

B. The Bank's Articulated Reasons for Plaintiff's Discharge

On February 3, 1986, John S. Ingalls, age 36, was appointed managing director of the Public Finance Division of the Bank. Shortly after Ingalls took command, Carol Stevens Eno, the manager of the Municipal Finance Unit in which plaintiff worked, recommended to Ingalls that the unit be abolished because of its failure In his affidavit and deposition, Ingalls gave two principal reasons for plaintiff's discharge. After receiving Eno's recommendation, Ingalls eliminated the Municipal Finance Unit and set up a new one, the Municipal Financial Advisory Sources Unit. He also made other organizational changes. Five municipal account officers were involved in the elimination of the unit in which plaintiff worked: Kelvin Brooks, Allan Totsi, Gerald Mecca, Stephen Knight and the plaintiff. Ingalls compared the relative performance of each and found Connell to be the weakest. Plaintiff disputes this, but the performance ratings bear Ingalls out except as to Mecca, who had the same rating as plaintiff but more favorable comments. Ingalls also knew that Eno did not have a favorable view of plaintiff's work. Plaintiff had disagreed with Eno's latest appraisal of his work and refused to agree to...