Prescott v. Higgins

• Decision Date: 20 August 2008
• Docket Number: No. 07-2809.,07-2809.
• Citation: 538 F.3d 32
• Parties: Fitzroy PRESCOTT, Plaintiff, Appellant, v. David HIGGINS, Individually and in his capacity as Director of Central Fleet Maintenance, City of Boston Department of Public Works; City of Boston, Defendants, Appellees, Jerry Coughlin, Individually and in his capacity as Superintendent of Central Fleet Maintenance, City of Boston, Department of Public Works, Defendant.
• Court: U.S. Court of Appeals — First Circuit

538 F.3d 32

Fitzroy PRESCOTT, Plaintiff, Appellant, v. David HIGGINS, Individually and in his capacity as Director of Central Fleet Maintenance, City of Boston Department of Public Works; City of Boston, Defendants, Appellees Jerry Coughlin, Individually and in his capacity as Superintendent of Central Fleet Maintenance, City of Boston, Department of Public Works, Defendant.

No. 07-2809.

United States Court of Appeals, First Circuit.

Heard May 6, 2008.

Decided August 20, 2008.

Winston Kendall, for appellant.

Karen A. Glasgow, Senior Assistant Corporation Counsel, City of Boston Law Department, with whom William F. Sinnott, Corporation Counsel, was on brief for appellees City of Boston, et al.

Before LYNCH, Chief Judge, O'CONNOR,^* Associate Justice (Ret.), and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

Fitzroy Prescott, an African-American male, is a mechanic for the City of Boston ("the City") who applied for a position as General Foreman for the City's Public Works Department. The selection committee — made up of two white males, one white female, and one African-American male — unanimously chose Horace Ryder, a white male. Prescott filed suit against the City, and two city supervisors in their personal and professional capacities (collectively "the Defendants"), under various federal and state laws for racial discrimination, disability discrimination, tortious interference with contract, harassment creating a hostile work environment, and retaliation. Defendants filed for summary judgment, and Prescott cross-motioned for summary judgment. The district court granted the Defendants' motion for summary judgment and denied Prescott's cross-motion. Prescott appealed. After careful consideration, we affirm.

I. Background

We recite the facts in the light most favorable to the non-movant, here Prescott. See Ramos-Santiago v. United Parcel Serv., 524 F.3d 120, 122 (1st Cir. 2008). Prescott has been a city mechanic since 1984. In June 2002, the City posted a position for General Maintenance Mechanic Foreman, in Central Fleet Maintenance, Boston Public Works. Four city employees were interviewed for the position, including Prescott and Ryder. All four candidates were interviewed by four management-level supervisors in the Public Works Department: Jerry Coughlin (a white male), Maurice Smith (an African-American male), Kathy Kelley (a white female), and Prescott's supervisor, David Higgins (a white male). The interview focused on three main criteria: job knowledge, education, and experience.

During the interview, applicants were asked seven objective questions regarding the Commercial Motor Vehicle Safety Act Federal Out of Service Criteria, which delineates the federal standards for when vehicles are unsafe to drive. Prescott was unable to correctly answer any of the questions pertaining to the federal guidelines. Ryder answered all of the questions correctly. According to Prescott there were no questions during the interview that focused on education or instruction in the field of mechanics. He claims that there is no evidence that the City considered his performance evaluations. He contends that the interview process only rewarded those who could provide the "right" answers to the questions that were asked, questions he claims had no predictive ability for the likelihood of success as a General Foreman.

The selection committee determined that Prescott and two other white candidates were not qualified for the position. The only committee member who thought that Prescott was qualified for the position was Smith. Smith, however, ranked Prescott third out of the four candidates. The unanimous choice of the interview panel was Ryder. Ryder had ten more years of experience than the other candidates, and he also had more supervisory and administrative experience than them as well. Ryder had been the Acting General Foreman for six months before he was interviewed, and the panel determined that he had better job knowledge than the other candidates. The panel also determined that Ryder would have the least negative impact on work product because he was the one most familiar with the position.

Prescott filed a complaint with the Massachusetts Committee Against Discrimination ("MCAD") on October 10, 2002, alleging that he did not receive the promotion because of racial discrimination. Prescott does not claim, however, that anyone has ever made, or that he has ever heard, racist or derogatory comments about him or others. He did not make any claims pertaining to disability, retaliation, or lack of accommodation at the time. Prescott claims that he was more qualified than Ryder for the position and points to his nineteen years of experience as a mechanic and six years as a foreman. He also points to numerous certifications he has obtained during his time in the field. Prescott alleges that the City has made unsubstantiated claims that Ryder had supervisory experience. Prescott also alleges that Higgins was not concerned with the backgrounds of African-American employees or their schooling and that he simply did not promote African-American workers.

Prescott contends that the selection criteria used by Higgins resulted in a less than eighty percent success rate for African-American applicants and that the selection criteria have had a disparate impact on African-American applicants.

Prescott also alleges that he was not compensated for serving as Acting General Foreman in 2002 when, Maurice García, the then-General Foreman, was out on sick-leave. The difference in pay was $200 a week. Prescott filed a grievance with the union. Prescott also contends that he was required to work on a computer after he had eye surgery, and he was required to lift ten-pound items, which he was not supposed to do because of his surgery.

MCAD dismissed Prescott's complaint, finding a lack of probable cause. On appeal, the dismissal was affirmed by the MCAD investigation Commissioner. Prescott filed suit in Superior Court in Suffolk County on January 24, 2006, and Defendants removed the case to federal district court on February 10, 2006. On March 6, 2007, the defendants filed for summary judgment, and on March 20, 2007, Prescott filed a cross-motion for summary judgment. On August 27, 2007, the district court granted the Defendants' motion for summary judgment and denied Prescott's cross-motion. The district court also denied Prescott's motion to take judicial notice of facts from a pending case and his motion to alter or amend the judgment. Prescott now appeals.

II. Summary Judgment and Cross-Motion for Summary Judgment

A. Standard of Review

We review a motion for summary judgment de novo, construing the record in the light most favorable to the non-movant and resolving all reasonable inferences in that party's favor. See Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008). We may ignore "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (citing Rossy v. Roche Products, Inc., 880 F.2d 621, 624 (1st Cir.1989)). We will reverse only if, "after reviewing the facts and making all inferences in favor of the non-moving party [here, Prescott], the evidence on record is `sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'" Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008) (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995)).

"Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits." Thompson, 522 F.3d at 175 (citing Fed. R. Civ P. 56(c)). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." Id. (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (internal quotation marks omitted). "A fact is material if it has the potential of determining the outcome of the litigation." Maymí, 515 F.3d at 25. To defeat a motion for summary judgment, evidence offered by the non-movant "must be significantly probative of specific facts." Pérez v. Volvo Car Corp., 247 F.3d 303, 317 (1st Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

B. Discussion

Prescott appeals the district court's grant of summary judgment on discrimination claims for disparate treatment, disparate impact, compensation, hostile work environment, tortious interference with a contract, retaliation, and disability. He also challenges the district court's denial of his cross-motion for summary judgment. The familiar McDonnell Douglas framework governs Title VII, 42 U.S.C. § 1981, and Massachusetts General Laws, chapter 151B claims. See Villanueva v. Wellesley Coll., 930 F.2d 124, 127 & n. 2 (1st Cir. 1991). The problem Prescott faces is that he is unable to meet the prima facie burden that he is required to establish in the first step of McDonnell Douglas. Accordingly, all his discrimination claims must fail. We address each of his allegations in turn.

1. Disparate Treatment

A plaintiff makes out a claim of disparate treatment by showing that: (1) he is a member of a protected class; (2) he was qualified for the position he sought; (3) he was subjected to adverse employment action; and (4) the position remained open or was filled by someone else with similar qualifications. Kosereis v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir.2003) (citations omitted). It is undisputed that Prescott is a member of a protected class. For Prescott to survive the motion for summary judgment, then, he needed to present evidence that showed that Ryder's qualifications were similar to his own. See Gu v. Boston Police Dep't, 312 F.3d 6, 11 ...