Dea v. Look

• Decision Date: 28 January 1987
• Docket Number: No. 86-1751,86-1751
• Parties: 42 Fair Empl.Prac.Cas. (BNA) 1399, 42 Empl. Prac. Dec. P 36,838 Allen P. DEA, Plaintiff, Appellant, v. Christopher S. LOOK, Jr., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 12

810 F.2d 12

42 Fair Empl.Prac.Cas. (BNA) 1399,

42 Empl. Prac. Dec. P 36,838

Allen P. DEA, Plaintiff, Appellant, v. Christopher S. LOOK, Jr., et al., Defendants, Appellees.

No. 86-1751.

United States Court of Appeals First Circuit.

Argued Dec. 1, 1986.

Decided Jan. 28, 1987.

Robert A. Penney, Boston, Mass., for plaintiff, appellant.

Michael C. Gilman with whom Holtz and Gilman, P.C., Boston, Mass., was on brief for defendants, appellees.

Before CAMPBELL, Chief Judge, and COFFIN and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Allen Dea, plaintiff below, appeals from the district court's granting of summary judgment in favor of defendants. A former employee of the Martha's Vineyard Airport, Dea brought this action against the airport owners and operators, namely, Dukes County, Massachusetts; the county airport commission; past and present members of both entities; a former manager of the airport; and the treasurer of Dukes County. Dea alleged, inter alia, that he was fired because of his age, in violation of 29 U.S.C. §§ 621 et seq. (1982); that he was fired without due process of law, in violation of 42 U.S.C. § 1983 (1982); that defendants conspired to deprive him of due process; and that his discharge gave rise to various state law causes of action.

After the parties had conducted extensive discovery, the district court granted defendants' motion for summary judgment on the age discrimination claim, concluding that Dea had presented no evidence to rebut the defendants' explanation for the discharge. The court also granted summary judgment on the section 1983 claim. Having disposed of the federal claims, the district court declined to accept pendent jurisdiction over the state law claims and dismissed the remainder of the complaint. Dea now appeals from the summary judgment on the two federal claims. We affirm.

The material facts taken most favorably to Dea are as follows: Dea was employed as a maintenance supervisor at the Martha's Vineyard Airport. He was hired in October 1978 at the age of 53. Dea supervised four employees, Francis Bernard, Ray Phillips, Spencer Hilton and Kenneth Taylor. Occasionally, as part of their duties, Dea and his men would test the fuel in the aviation fuel trucks used by the aircraft at the airport. The fuel would be tested by drawing off a sample and visually checking for impurities. The sample was called "contaminated fuel," whether or not it actually was contaminated. The fuel samples were disposed of by placing them into large drums. According to Dea, a former airport manager told Dea and his men that they could use the discarded samples for other uses, and they began using the fuel in their personal vehicles.

In August 1980 it was discovered that approximately 9,000 gallons of aviation fuel, as well as some cash belonging to the airport could not be accounted for. An investigation was conducted by the Massachusetts State Police, during which Dea and his men stated that they were using the gasoline samples in their own vehicles, but that they thought they had permission to do so. According to Dea, one of the employees, Kenneth Taylor, also admitted using both the contaminated gasoline, and also "good" gasoline in his car. After the investigation, it was determined that it was impossible to know exactly how much gasoline was being used for proper purposes, and how much was improperly diverted because of the lack of adequate accounting and inventory controls.

Following the investigation, Dea and his men were suspended. On January 18, 1983 an administrative hearing was held by the airport commission, at which Dea was present and took part. Afterwards the airport commission terminated Dea and several of the men he supervised. Taylor, however, was not terminated, but rather was reinstated with back pay.

I. AGE DISCRIMINATION

The district court determined that Dea had made out a prima facie case of age discrimination by his showing that Taylor, who was age 32, was not fired, while the employees who were fired were all over 40 years of age. ¹ Under this court's decision in Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979), the district court concluded that defendants thus had a burden of production to articulate a valid reason for the firing so as to meet appellant's prima facie case of age discrimination. Id. at 1011. Defendants produced the affidavit of John S. Alley, Chairman of the Martha's Vineyard Airport Commission, stating that Dea had been fired because of his use of the aviation fuel, his improper instructions to those he supervised, and his withholding of information from the airport manager. Alley's affidavit explained that Taylor, the younger employee, was not fired because the commission had determined that Taylor took the fuel on only one occasion, left a note for the amount taken, and eventually made restitution for the amount taken.

Defendants having articulated a plausible, nondiscriminatory reason for treating Dea differently from the younger employee, the district court believed that Dea had the burden of showing that this reason was pretextual. The court concluded that Dea had offered nothing to show that defendants' reason was a pretext for age discrimination. Rather, Dea's own deposition confirmed that his firing arose from the gasoline dispute. In the deposition, Dea stated that he was terminated in an attempt to shift the blame for the airport gasoline scandal from management to the employees. When repeatedly pressed for further reasons for his firing, Dea said he knew of no other reasons, except perhaps the fact that there had been talk of unionizing at the airport. When further pressed, Dea said there were no other reasons for his firing. To be sure, Dea and defendants disagreed as to who was at fault for the misappropriation of the gasoline. But even if Dea convinced a jury that he was fired to protect higher-ups from blame in the gasoline scandal, this would not show age discrimination. It would merely provide another reason, totally unrelated to age, for his discharge.

Dea contends that summary judgment was improper because he would present evidence to show that the "contaminated" gasoline that Dea used was worthless "trash" and that a jury would never believe that "an individual could lose his job for taking trash." However, as we pointed out in Gray v. New England Telephone & Telegraph Co., 792 F.2d 251, 255 (1st Cir.1986), evidence contesting the factual underpinnings of the reason for the discharge proffered by the employer is insufficient, without more, to present a jury question. Plaintiff continues to carry the burden of showing discriminatory intent, and the relevant question is whether the given reason was a pretext for discrimination:

It is not enough for the plaintiff to show that the employer made an unwise business decision, or an unnecessary personnel move. Nor is it enough to show that the employer acted arbitrarily or with ill will. These facts, even if demonstrated, do not necessarily show that age was a motivating factor.

Id. (emphasis in original). Dea cannot meet his burden of proving "pretext" simply by refuting or questioning the defendants' articulated reason. White v. Vathally, 732 F.2d 1037, 1042 (1st Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984).

Merely casting doubt on the employer's articulated reason does not suffice to meet the plaintiff's burden of demonstrating discriminatory intent, for "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons" in the first place. To hold otherwise would impose on the defendant an almost impossible burden of proving "absence of discriminatory motive."

Id. at 1043 (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Here, after extensive discovery, at best all that appellant could present was evidence casting doubt on the correctness of the employer's proffered reason for the discharge. This was insufficient to prove pretext or discriminatory intent.

Dea asserts that--in the procedural posture of a motion for summary judgment--the court impermissibly weighed the evidence and judged the credibility of witnesses, when it decided that the affidavit of Alley met the defendants' burden of production, thus shifting the ultimate burden of proof back to appellant. However, as we held in Loeb, once a plaintiff has made out a prima facie case of age discrimination, the burden that shifts to defendants is one of production only: it is not a burden of proof.

We think it now clear that McDonnell Douglas leaves the burden of persuasion at all times with the plaintiff, and that the employer's burden to "articulate" a legitimate, nondiscriminatory reason is not a burden to persuade the trier that he was in fact motivated by that reason and not by a discriminatory one. Rather it is a burden of production--i.e., a burden to articulate or state a valid reason, following which the complainant must show that the reason so articulated or stated is a mere pretext or "cover-up" for what was in truth a discriminatory purpose.

Loeb, 600 F.2d at 1011-12. Thus it is clear that merely making out a prima facie case does not automatically save appellant from a summary judgment motion. "Indeed, the inference of discrimination created by the prima facie case is dispelled once the employer's reason is stated, until and unless the latter is shown to be a pretext." Id. at 1015. ²

Whether defendants have met their burden of production by articulating a sufficient reason is for the court, not a jury to decide. "In the unlikely event that there is a dispute over whether the employer has met his burden of production, it will be for the judge to decide whether defendant has stated a legitimate reason with such specificity as to require plaintiff to prove it to be a pretext."...