Dunn v. Trs. of Bos. Univ.

• Decision Date: 30 July 2014
• Docket Number: No. 13–2272.,13–2272.
• Parties: Michael DUNN, Plaintiff, Appellant, v. TRUSTEES OF BOSTON UNIVERSITY, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

761 F.3d 63

Michael DUNN, Plaintiff, Appellant,

v.TRUSTEES OF BOSTON UNIVERSITY, Defendants, Appellees.

No. 13–2272.

United States Court of Appeals, First Circuit.

July 30, 2014.

Lana Sullivan, with whom Ronald M. Davids was on brief, for plaintiff-appellant.

Lawrence S. Elswit for defendants-appellants.

Before HOWARD, THOMPSON, Circuit Judges and LAPLANTE,^* District Judge.

LAPLANTE, District Judge.

Michael Dunn appeals the entry of summary judgment against him on his claim that his former employer, Boston University (“BU”), discharged him because of his age in violation of the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch. 151B, § 4.1B. The district court ruled that Dunn had failed to make out a prima facie case of age discrimination. Without ruling on the sufficiency of Dunn's prima facie showing we affirm. Even assuming that Dunn made that prima facie showing, he failed to demonstrate a genuine issue of material fact as to whether BU's stated reasons for discharging him, as part of a reorganization of its information technology department, were pretextual.

I.

A.

We set forth the facts in the light most favorable to Dunn. See, e.g., Ponte v. Steelcase, Inc., 741 F.3d 310, 313 (1st Cir.2014). After receiving a bachelor's degree in computer engineering, in 1987, Dunn worked for a year or so as a hardware support specialist before becoming a systems administrator and, later, the manager of the computer support center, for a Massachusetts company with 1,500 employees. In 1992, Dunn began working for BU, as a computer hardware repair technician. After several promotions, in the fall of 2009, at age 47, Dunn assumed the title of “Assistant Director of Distributed Computing,” a group within BU's Information Services & Technology (“IS & T”) department. In this job, Dunn supervised nine employees providing high-level desktop computer services and support to faculty and staff.

Earlier in 2009, BU had hired Tracy Schroeder, age 38, as the vice president of IS & T. Schroeder began making organizational changes, including the merger of the distributed computing group with another group within IS & T known as the “IT help center.” The purpose of that change, Schroeder explained, was to “improve the efficiency of the department by bringing staff ... who [were] performing similar functions together in teams” and “to reduce the fragmentation of the [department's] presentation to the client community,” i.e., BU's students, faculty, and staff. This merger resulted in the elimination of the distributed computing group, and the layoff of its director (and Dunn's immediate supervisor), Stephen Rosman, who was 59 years old at the time.

The merger also resulted in a title change for Dunn, who became “manager of field support” for the IT help center in October 2009. Dunn retained the same salary and benefits, but lost managerial responsibility over four employees, and viewed the title change as a demotion. Within two months or so, however, those employees were re-assigned to work under Dunn after their supervisor quit. Dunn reported to Stacy Gianoulis, age 50, a project director in the help center.

In February 2010, as part of the continued restructuring of the IS & T department, Dunn became “manager of desktop services-field support,” while Jill Beckman, who was then around 30 years old, became “manager of desktop services-central support.” Beckman, who holds an undergraduate degree in music synthesis (a major she described as “all about music and computers”), had started working at BU in 2001, before she completed college. She began as a “technical consultant” at University Computers, a BU-operated computer store, diagnosing and repairing hardware and software problems. In 2006, Beckman was promoted to the position of “manager of technical services” at the store, so that its technical consultants reported to her. During her time at University Computers, Beckman worked with different “ticketing systems” used to track service requests, contributing to the development of two such systems (known as “Oompa” and “OneHelp”).

In April 2010, Gianoulis called Dunn to apprise him of some further upcoming organizational changes, including that, due to overwork, the employee then serving as “manager of the service desk” would have her title changed to “manager, accounts and student services” and be relieved of her responsibilities over the service desk itself. Gianoulis explained that this would open a new “service desk manager” position, but that “he [was] really looking for a younger person in that role.” Dunn did not express any interest in the new position, which, as he testified at his deposition, offered a “lesser grade [and] pay” than the job he had at the time. Ultimately, BU hired a 35–year–old for the service desk manager job.

A few weeks later, in early May 2010, Gianoulis submitted a written proposal to Schroeder for reorganizing the desktop services group. In addition to dividing the responsibilities of the manager of the service desk, as just discussed, this proposal combined the responsibilities of the “central support” position held by Beckman and the “field support” position held by Dunn into a single new position, “manager of the [d]esktop [s]ervices team.” Gianoulis explained that, while desktop services had initially been divided into the “field support” and “central support” teams, “each with its own manager, as we worked through the merger ... [a]s these two groups become more integrated and with the adoption of OneHelp as our ticketing system it is clear there needs to be one operational manager of the Desktop Services team to manage the day to day support activities.”

Gianoulis further proposed that the new manager of desktop services position be given to Beckman, citing her “history and performance of actively managing a support group” and “knowledge of service management systems,” as well as her role in developing “OneHelp,” the ticketing system. A job description for the “manager of desktop services” position awarded to Beckman had been completed in October 2009, but, contrary to written BU policy, was never posted in its job listings (though Gianoulis did discuss the written reorganization proposal with an employee in BU's human resources department, who said she had “no objections”). Nor did Schroeder or Gianoulis consider any candidates for the job besides Beckman.

Gianoulis also proposed that Dunn—who was 47 years old at that point—would be laid off. The restructuring of the desktop services group affected other older employees as well, though none adversely: three employees in their 40s received promotions, while a 56 year-old and a 60–year–old retained their jobs. Schroeder approved Gianoulis's proposal and, on May 25, 2010, Gianoulis informed Dunn that his job was being eliminated due to restructuring.

At his deposition in this case, Gianoulis testified that Dunn “was never considered for” the manager of desktop services position because Beckman “was already doing the role” in her prior job as manager of desktop services-central support. Gianoulis explained that, during Beckman's time in that job, she “provided desktop support to students, staff and faculty ... in a high volume environment.” Dunn's role as field support manager, Gianoulis recalled, was more limited, “only supporting a select group of administrative staff” and doing “a lot of vendor negotiation,” as well as “business applications support” for the “select group of clients that he supported.” Gianoulis added that Dunn had “told [him] specifically that he wasn't interested in desktop support, he was interested in Windows system management,” which he considered “his area of expertise.”

B.

In November 2010, Dunn filed a charge of discrimination against BU with the Massachusetts Commission Against Discrimination. He subsequently withdrew the charge and brought suit against BU in Massachusetts Superior Court, claiming age discrimination in violation of both the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and its state-law analog, Mass. Gen. Laws ch. 151B, § 4.1B. BU removed the case to the district court, invoking its federal question jurisdiction. 28 U.S.C. § 1331.

In due course, BU filed a motion for summary judgment, seeFed.R.Civ.P. 56, arguing that Dunn could not establish a prima facie case of age discrimination under either federal or state law and that, in any event, BU had legitimate, nondiscriminatory reasons for laying off Dunn, who lacked evidence that those reasons were pretextual. Dunn's first response to BU's summary judgment motion was a motion seeking voluntary dismissal of his ADEA claim with prejudice, see Fed.R.Civ.P. 41(a)(2), and for the district court to decline to exercise supplemental jurisdiction over the remaining state-law age discrimination claim, see28 U.S.C. § 1367(c)—relief which, if granted, would have resulted in remand of the case to the superior court. As the basis for this motion, Dunn stated that “the standard on summary judgment for discrimination claims arising under federal law is significantly less liberal than the standard on summary judgment for discrimination claims arising under state law.” In a decision that Dunn has not questioned on appeal, the district court dismissed the ADEA claim, but refused to remand the chapter 151B claim to state court, declaring that “such forum shopping is clearly improper.” Dunn v. Trs. of Boston Univ., No. 11–10672, 2013 WL 5235167, at *2 (D.Mass. Sept. 16, 2013).

After Dunn filed his opposition to BU's summary judgment motion, the district court heard oral argument on it and, as noted at the outset, granted the motion, ruling that Dunn had not made out a prima facie case that he was laid off because of his age. Id. at *7. As a result, the district court did not reach BU's alternative argument that, even if Dunn could establish a prima facie case of age discrimination, he could not demonstrate a genuineissue as...