Petitti v. New England Tel. & Tel. Co.

• Decision Date: 07 February 1990
• Docket Number: No. 89-1804,89-1804
• Citation: 909 F.2d 28
• Parties: 54 Fair Empl.Prac.Cas. 142, 54 Empl. Prac. Dec. P 40,108 Robert P. PETITTI, Plaintiff, Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

909 F.2d 28

54 Fair Empl.Prac.Cas. 142,

54 Empl. Prac. Dec. P 40,108

Robert P. PETITTI, Plaintiff, Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, Defendant, Appellee.

No. 89-1804.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 1990.

Decided July 23, 1990.

Jeffrey Petrucelly, with whom Petrucelly & Nadler, P.C., was on brief, for plaintiff, appellant.

William J. McDonald, with whom Michael A. Morrison was on brief, for defendant, appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

Robert Petitti ("Petitti") appeals from the decision of the United States District Court for the District of Massachusetts granting two summary judgments in favor of appellee the New England Telephone Company ("NET"). Petitti brought this action alleging sexual discrimination and retaliation under Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000e, et seq. ¹

FACTS

Robert Petitti was first employed by NET in September, 1969 as a Level 1 Computer Systems Analyst in the Accounting Department. From 1969 to 1983, he held various Level 1 positions as well as various Level 2 positions on a temporary or "acting" basis. His job performance evaluations ("PEP") from 1977 to 1983 reflect mixed reviews. His performance in the acting Level 2 positions was reputed basically satisfactory and at times he was even found eligible for full promotion treatment.

In 1981, Petitti was found promotable, but his supervisor commented that he needed to be more flexible with co-workers, to organize and to plan his time better and to learn not to interrupt others. As of January, 1982, Petitti was determined ineligible for promotion because of his personal difficulties with both co-workers and supervisors.

At that point, appellant had already expressed his dissatisfaction with the fact that he had not been promoted and that he had been held as an acting employee for four years, contrary to company policy. Petitti complained to NET that its affirmative action plan, which had established a policy to promote more qualified women to higher level positions, was creating a blockage of white males at Level 2. This, Petitti alleged, impermissibly prevented him from becoming a permanent Level 2 employee.

In May, 1982, Petitti became an acting senior systems analyst and was transferred to the Time Share Administration Systems project. That month an interim evaluation prepared by Nancy Knowlton, who was the project manager at the time, rated him at "partial treatment" for promotion because of alleged difficulties in dealing with personnel. Two months later he was selected and recommended by the same project manager to become a permanent senior systems analyst on that project, but a written notation on the document states it was cancelled. At about this time, Petitti visited a psychiatrist due to the alleged pressures and the discrimination confronting him at work.

In December, 1982, after continuous requests and complaints, Petitti was transferred back to his permanent Level 1 management post as a systems analyst and was asked to take a seven week medical leave. While on leave, in February, 1983, Petitti entered NET premises using a false name and gained access to computer files showing seniority dates for other employees. After he returned to work with NET, in his next evaluation, dated March, 1983, he was again rated not promotable. This evaluation included a lengthy description of examples of alleged insubordination.

In March, 1983, Petitti filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), and in October, 1985, he filed suit in the district court, alleging discrimination and retaliation. ² In November, 1987, after discovery was completed, appellant filed a Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure Rule 56 with respect to both of his claims. The trial court bifurcated the claims, and at that time NET moved for summary judgment on the discrimination claim and later filed another request for summary judgment on the retaliation claim. Appellant's oppositions to NET's motion for summary judgment were filed on different dates and the documents and evidence attached thereto are not the same. As such, the records before the district court vary for each motion. On July 6, 1989, the trial court entered judgments as to all claims, granting NET's requests. On appeal the two judgments will be dealt with seriatim.

STANDARD OF REVIEW

Both denial and grants of summary judgment are reviewed de novo. E.g., Idaho v. Hodel, 814 F.2d 1288, 1292 (9th Cir.1987), cert. denied, 484 U.S. 854, 108 S.Ct. 159, 98 L.Ed.2d 114 (1987). 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 matter of law." Fed.R.Civ.P. 56(c). Essentially, the inquiry to determine whether there is a genuine issue as to a material fact is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986); see Lipsett v. University of Puerto Rico, 864 F.2d When intent is an issue, we have held that our review "will be most searching" since these questions are most suited for jury determinations. Rossy v. Roche Products Inc., 880 F.2d 621, 624 (1st Cir.1989). Nonetheless, we will not refuse to affirm, even in such cases, when the non-movant rests merely upon unsupported allegations and speculations. See Mendez v. Belton, 739 F.2d 15, 20 (1st Cir.1984). Therefore, the courts examining the evidence must insist that the party opposing summary judgment go beyond the pleadings, and by his or her "own affidavits, or by the 'depositions, answers to interrogatories, and admission on file' designate specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Lipsett v. University of Puerto Rico, 864 F.2d at 895 (quoting Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)).

                881, 886 (1st Cir.1988).  In assessing the evidence, we will review the material presented in the light most favorable to the non-movant, and we must "indulge all inferences favorable to that party."    See Lipsett v. University of Puerto Rico, 864 F.2d at 886;  Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1106 (1st Cir.1989).  We will reverse a grant of summary judgment if there are any factual issues that need to be resolved before the legal issues can be addressed.  Lipsett v. University of Puerto Rico, 864 F.2d at 895
                

DISCUSSION

I. Title VII Claims

Title VII provides a cause of action for both discrimination and retaliation cases. ³ See Pullman-Standard v. Swint, 456 U.S. 273, 285-86 n. 15, 102 S.Ct. 1781, 1788 n. 15, 72 L.Ed.2d 66 (1982). The seminal case on this matter, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), establishes the order of proof in both discrimination and retaliation cases for situations, like the instant case, where direct evidence of discrimination is lacking.

At firsthand, plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. When plaintiff succeeds in so doing, the burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employees' rejection." Id. at 802, 93 S.Ct. at 1824; see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1983). The existence of an affirmative action plan has been recognized as a nondiscriminatory rationale for an employer's decision. Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1980). We have established that even upon motion for summary judgment the employer's burden, however, is not one of persuasion as "the burden of persuasion on the ultimate issue of intent remains with the plaintiff at all times." Lipsett v. University of Puerto Rico, 864 F.2d at 899.

On appeal our role is not to second-guess the business decisions of an employer, nor to impose our subjective judgments of which person would best fulfill the responsibilities of a certain job. Rossy v. Roche Products, 880 F.2d 621, 625 (1st Cir.1989). As such, after the employer has proffered the nondiscriminatory rationale, plaintiff has the burden to persuade the court that these reasons were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Loeb v. Textron Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir.1979).

In Lipsett this court discussed the application of the McDonnell Douglas framework

                in the context of a request for summary judgment on a sexual discrimination claim.  There, we established that once plaintiff has the burden of proving pretext to discriminate, it becomes an issue of intent.  A summary judgment will be rejected "when the plaintiff can point to specific facts" giving rise to an inference of a discriminatory intent.  Lipsett v. University of Puerto Rico, 864 F.2d at 895.    Intent to discriminate is a question of fact and we must leave this determination to the jury.  See Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982)
                

A. Discrimination Claim

Appellant claims he demonstrated that, within the statutory period, he was promotable and that adverse employment decisions were made against him because of his sex. ⁴ The trial court found, however, that the uncontroverted evidence showed that during the "[statutory] period from July 1982 to March 1983 [Petitti] was rated ineligible for promotion." Accordingly, the district court concluded that Petitti had not established a prima facie case of discrimination...