Shorette v. Rite Aid

USCA1 Opinion UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 98-1005 PETER W. SHORETTE, SR., Plaintiff, Appellant, v. RITE AID OF MAINE, INC., Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] Before Torruella, Chief Judge, Cyr, Senior Circuit Judge, and Stahl, Circuit Judge. Arthur J. Greif, with whom Charles E. Gilbert III and Gilbert Law Offices, P.A. were on brief for appellant. Anne M. Carney, with whom Jonathan W. Brogan and Norman, Hanson & DeTroy were on brief for appellee. September 14, 1998 CYR, Senior Circuit Judge. Peter W. Shorette, Sr., appeals from the district court judgment which dismissed his age discrimination claim against his former employer, Rite Aid of Maine, Inc. ("Rite Aid"). We affirm. I BACKGROUND For nearly thirty years Shorette worked as a store manager for LaVerdiere Drug Stores ("LaVerdiere"). In 1994, Rite Aid, a LaVerdiere competitor, constructed a new store across the street from the LaVerdiere store which Shorette managed in Fairfield, Maine. Later that year Rite Aid acquired LaVerdiere, and converted all seventy-four LaVerdiere stores into Rite Aid stores. Shorette, then 60 years of age, was receiving an annual salary of $31,000 at the time, whereas Rite Aid store managers received roughly $25,000. Unlike LaVerdiere store managers, moreover, all Rite Aid store managers were provided in-store computer systems with which to perform various managerial functions, such as inventory and payroll. After the LaVerdiere takeover, Rite Aid advised all former LaVerdiere managers that it would retain them as managers, and train them on the Rite Aid computer system. Since the Fairfield store which Shorette managed was next door to the newly constructed Rite Aid store, and therefore redundant, it was slated for closure. Before the Fairfield store closed, however, Rite Aid brought in a temporary computer setup in order to provide Shorette and his staff with six days of in-store training. Thereafter, Rite Aid transferred Shorette's staff to the new Rite Aid store, leaving Shorette alone to man the old store until it was closed one month later. Finally, during this interim period Shorette and other former LaVerdiere managers attended a one-day computer training class. After the old store closed, Rite Aid transferred Shorette to its Augusta store as an "assistant manager" or "manager trainee" until such time as a new managership became available. During this period, Shorette continued to receive his $31,000 annual salary, while the Augusta store manager, Charles Pattershall, instructed him on how to perform managerial tasks on the computer. After three months, however, Pattershall reported to Rite Aid District Manager Thurston Gilman that Shorette had been able to make little progress. In December 1994, Gilman met with Shorette and informed him that computer proficiency was an essential function for all Rite Aid store managers. Although Pattershall resumed the training effort with Shorette, he reported little headway. One month later Gilman transferred Shorette to the Rite Aid store in Waterville, whose manager, Wayne Cyrway, was a former LaVerdiere store manager who had proven especially adept at training store managers on the Rite Aid computer system. After initially observing that Shorette had poor computer skills, Cyrway determined to start "from scratch," and provided Shorette with one- on-one, in-store computer training for up to twenty hours weekly. Over the next three months, James Lucier, the Rite Aid human resources manager, checked with Cyrway, who reported that Shorette seemed unable to absorb and retain the rudimentary concepts of computer operation. In April 1995, Lucier informed Cyrway that Rite Aid had decided to discontinue training Shorette for a store managership due to Shorette's continued inability to learn the Rite Aid computer system. Lucier asked Cyrway if he would be willing to take Shorette on at the Augusta store as his key cashier, a lower- paying position which required less computer proficiency. Cyrway agreed. The next day Lucier met with Shorette to inform him that Rite Aid could not "afford" to retain him any longer as an assistant manager. After he was given the choice of resigning or being demoted to key cashier, Shorette elected to resign. In due course Shorette filed a five-count complaint against Rite Aid in Maine superior court, which Rite Aid removed to federal district court. The complaint alleged, inter alia, that Rite Aid deliberately forced Shorette to resign because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq.. After discovery had been completed, Rite Aid successfully moved for summary judgment on all counts and Shorette appealed. II DISCUSSION Shorette contends that he adduced adequate evidence to generate a trialworthy issue as to whether Rite Aid forced him to resign because of his age in violation of the ADEA. At all times ADEA plaintiffs bear the burden of proving that their employer discriminated against them on account of their age. See Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir. 1997); Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 723 (1st Cir. 1994). Hence, at the summary judgment stage Rite Aid could prevail only if Shorette failed to adduce sufficient evidence from which a rational factfinder could return a verdict in his favor, seeCelotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 116 (1st Cir. 1998), without resorting to "conclusory allegations, improbable inferences, and unsupported speculation," Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Absent direct evidence of discriminatory intent, an ADEA plaintiff may present circumstantial evidence pursuant to the familiar three-stage, burden-shifting paradigm. See Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995). At the first stage, the plaintiff employee must make a prima faciedemonstration that he: "(1) was at least forty years of age, (2) met the employer's legitimate job performance expectations, (3) experienced adverse employment action, and (4) was replaced by a person with roughly equivalent job qualifications." Hidalgo, 120 F.3d at 332 (citation omitted). Once established, the prima faciecase raises a presumption that the employer was motivated by discriminatory animus. Id. at 334. The burden of production then shifts to the employer to articulate ÄÄ though not to prove ÄÄ a legitimate nondiscriminatory basis for its employment decision. Id. Once the employer meets its limited burden of production, the presumption of discrimination generated by the prima facie case is stricken from the calculus, and the burden returns to the employee to prove not only (1) that the reason the employer articulated for the challenged employment action was a pretext or sham, but (2) that its real reason was the employee's age. Id. at 335. Thus, "[i]n pursuing [the third-stage] inquiry, we focus on whether the employer believed that its proffered reason was credible. That is, [plaintiff] must do more than cast doubt on the rationale proffered by the employer, the 'evidence must be of such strength and quality as to permit a reasonable finding that the . . . [termination] was obviously or manifestly unsupported.'" Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997) (emphasis added) (citations omitted). A. Direct Evidence of Discriminatory Animus Shorette maintains that various remarks by Rite Aid managers amounted to direct evidence of Rite Aid's age-based animus. First, around the time Rite Aid acquired LaVerdiere, Shorette's district manager, Roland Hughes, asked Shorette how old he was and when he planned to retire. Assuming as much, this is not only a textbook example of an isolated remark which demonstrates nothing, but Shorette was not able to state whether Hughes made the statement before or after the Rite Aid takeover. Consequently, it is impossible to impute the remark to Rite Aid. Moreover, even assuming the remark was made after the Rite Aid takeover, Shorette adduced no evidence that Hughes had authority to determine whether Shorette was to be retained by Rite Aid, nor that Hughes played any role in the decision to demote Shorette to key cashier. See Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 6 n.8 (1st Cir. 1998) (noting that "stray remarks in the workplace . . . , statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself" normally are insufficient to prove employer's discriminatory animus) (citation omitted); Medina-Munoz, 896 F.2d at 10. Second, Wayne Cyrway twice advised Shorette and his wife: "[Y]ou have a perfect case of age discrimination, and you'd be crazy not to pursue it." Shorette insists that these statements support a rational inference that Cyrway had been privy to Rite Aid's decisionmaking processes and enabled Cyrway to acquire some undisclosed information regarding the alleged discriminatory rationale which motivated Rite Aid to demote Shorette. We conclude, however, that Shorette adduced insufficient evidence to permit the attribution of Cyrway's remarks to Rite Aid. In Connell v. Bank of Boston, 924 F.2d 1169 (1st Cir. 1991), a bank officer attested that the defendant bank had intended to eliminate more senior employees than younger employees during a planned reduction-in-force. We identified three reasons for holding the evidence insufficient to withstand the bank's motion for summary judgment. First, the plaintiff had adduced no evidence that the affiant had participated in the bank's decisionmaking process with respect to the reduction-in-force. Second, the plaintiff offered no other specific evidence as to how the affiant might have learned the true intent of the bank's decisionmakers. Finally, in contravention of Federal Rule of Evidence 701, the affiant, a lay witness, testified to his personal opinion on the ultimate legal issue in the case ÄÄ whether the bank acted with discriminatory intent. Id. at 1177-78 & n.7. The remark attributed to Cyrway is similarly flawed. Cyrway repeatedly disavowed any participation in Rite Aid's decisions to employ or discharge store managers, and in its decision to demote Shorette. As one might expect, the individual store managers had authority over their respective stores and staffs, but made neither company-wide policy nor employment decisions regarding other store managers. Instead, Cyrway simply reported Shorette's progress, then learned of Rite Aid management decisions after the fact. Thus, absent any evidentiary basis for inferring that Cyrway took part in meetings or discussions at a decisionmaking level, Shorette would have the jury indulge in speculation. See Hidalgo, 120 F.3d at 338 (in proving an ADEA claim, "[o]ptimistic conjecture . . . or hopeful surmise will not suffice"); Medina-Munoz, 896 F.2d at 8. Even viewed most favorably to Shorette, however, this evidence strongly suggests that Cyrway's remarks simply represented an uninformed lay judgment that Shorette might be able to present a circumstantial case of discriminatory animus. Absent any suggestion or evidence that he was an expert on employment discrimination claims, Cyrway's lay opinion as to whether the circumstantial evidence suggested that Rite Aid harbored a discriminatory animus ÄÄ the ultimate legal issue in the case ÄÄ in all likelihood would have been inadmissible at trial. See Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 681 (1st Cir. 1994) (noting that, "[u]nder [Federal] Rule [of Civil Procedure] 56(e), affidavits supporting or opposing summary judgment must set forth facts that would be admissible inevidence") (emphasis added). B. Indirect Evidence of Discriminatory Animus Absent direct evidence of discriminatory intent, Shorette was forced to resort to circumstantial evidence. For present purposes we assume arguendo (albeit dubiously) that Shorette established a prima facie case. Further, Rite Aid plainly articulated a nondiscriminatory reason for demoting Shorette: his inability to achieve adequate computer proficiency. Thus, we focus on whether Shorette adduced sufficient evidence from which a rational factfinder could have inferred both that Rite Aid's articulated reason was a pretext, i.e., "obviously or manifestly unsupported," Ruiz, 124 F.3d at 248, and that its real reason for demoting Shorette was an age-based animus. See Hidalgo, 120 F.3d at 335. The patchwork of circumstantial evidence presented by Shorette fails to limn pretext, let alone discriminatory intent. On the other hand, the principal witnesses for Rite Aid ÄÄ Pattershall and Cyrway ÄÄ described in great detail Shorette's inability to develop even minimal computer proficiency after six months of intensive on-site training, and hence his inability to perform core job functions required of all Rite Aid store managers. Nor did Shorette adduce competent evidence to rebut these assessments of his computer aptitude. Although Shorette disputed these assessments, his personal opinion regarding his own job qualifications is not sufficiently probative on the issue of pretext. See Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) ("The inquiry into pretext centers upon the employer's beliefs, and not the employee's own perceptions of his performance."); Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 441 (7th Cir. 1996) ("It is well settled, however, that a plaintiff's own opinions about her work performance or qualifications do not sufficiently cast doubt on the legitimacy of her employer's proffered reasons for its employment actions."); Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996) ("'It is the perception of the decision maker which is relevant,' not the self-assessment of the plaintiff.") (citation omitted); Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1039 (10th Cir. 1993) (same). The record contains no evidence whatsoever that Rite Aid ever believed that Shorette had acquired adequate computer skills. Shorette nevertheless attempts to bootstrap by relating every instance in which he believes he received less favorable treatment than other former LaVerdiere store managers. For example, he contends that (1) Rite Aid sabotaged his computer training from the outset by installing an obsolete computer in the Fairfield store, while equipping other former LaVerdiere stores with new computer systems; (2) he was the only LaVerdiere store manager over age 60, and the only one who was "demoted" to assistant manager; (3) the demotion violated Rite Aid's policy of not hiring an assistant manager until it had a specific store managership available; and (4) Rite Aid did not provide him with a permanent engraved name tag, even though its policy was to provide them to managers and assistant managers. These contentions are unavailing, however, since the challenged actions are entirely compatible with the nondiscriminatory rationale offered by Rite Aid. See Goldmanv. First Nat'l Bank of Boston, 985 F.2d 1113, 1120 (1st Cir. 1993) (noting that ADEA plaintiff could not rely solely on employer conduct for which there was an age-neutral explanation). First, Rite Aid slated the Fairfield store for closure because it was located right next to its newly constructed Rite Aid outlet, for which Rite Aid had hired a manager prior to the LaVerdiere takeover. Thus, Rite Aid reasonably could not be expected to install a new computer in a store scheduled to close within a matter of weeks. In all events, whatever probative force this evidence may have is greatly outweighed by the subsequent transfer of Shorette to the Rite Aid stores in Augusta and Waterville, where he was provided with more than six monthstraining on a new computer system. Second, notwithstanding the record citations in Shorette's appellate brief, see Fed. R. App. P. 28(a)(4), he failed to adduce competent evidence that he was either the only former LaVerdiere store manager whose store was closed after the takeover, or the only one Rite Aid temporarily "demoted" to assistant manager. Rather, Shorette testified that he was "the only one [viz., LaVerdiere store manager] in the Waterville area that was 60 years old or older" who was demoted. (Emphasis added.) This tiny statistical sampling proves too little, however. See, e.g., LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 849 (1st Cir. 1993) (noting that, in disparate-treatment ADEA case, "'a small statistical sample carries little or no probative force to show [age] discrimination'") (citation omitted); see also DeNovellis v. Shalala, 135 F.3d 58, 65 (1st Cir. 1998) (same). Nor is there other evidence of pertinent company-wide statistics. Third, the alleged Rite Aid policy of hiring manager trainees only when a specific store-managership opened up is a red herring, since the LaVerdiere takeover presented an entirely different scenario: the need to close one store and thereby eliminate one store-managership. That is to say, Shorette was not "hired" as an assistant manager, but merely reassigned on a temporary basis due to the Fairfield-store closure. Shorette adduced no evidence of any company policy for dealing with that distinct eventuality, nor is it in any sense unreasonable or suspect that Rite Aid would assign a displaced store manager to an assistant-managership on a temporary basis until another store- managership became available. Fourth, even assuming that the failure to provide Shorette with a name tag could support an attenuated inference that Rite Aid knew ab initio (i.e., before Shorette's inability to develop the required computer skills became known) that it planned eventually to force him out of the company because of his age, such a lapse is equally consistent with a nondiscriminatory intent. For example, because the Fairfield store was closing, and Shorette was about to embark on a transitory reassignment, it would be entirely reasonable to defer the issuance of a permanent name tag until Shorette once again could be appointed a permanent manager. Indeed, more fundamentally Shorette presented no evidence from which it might be inferred that the failure to issue him a name tag during the LaVerdiere takeover was anything other than an oversight, much less an intentional discriminatory act. Shorette points also to evidence that Rite Aid contemporaneously hired younger persons as store managers (e.g., the manager of its new Fairfield Rite Aid store), or as manager trainees in the Augusta store. Importantly, however, Rite Aid had hired the manager of its new Fairfield Rite Aid before the LaVerdiere takeover, and plainly was under no obligation to offer that store-managership to Shorette. See Pages-Cahue v. Iberia Lineas Aereas de Espana, 82 F.3d 533, 538-39 (1st Cir. 1996) (employers have no obligation under ADEA to dismiss younger worker so as to create job opening for older plaintiff). Shorette's anecdotal evidence that Rite Aid hired two manager trainees after the LaVerdiere takeover is flawed as well. That these two manager trainees were in their 20's and 30's reveals nothing statistically meaningful about Rite Aid's company-wide hiring practices. For all the record discloses, these two trainees may have been the only young persons Rite Aid hired during this period. See Goldman, 985 F.2d at 1119 (such anecdotal evidence does not give rise to an inference that older employees were "disproportionately affected" by an employer's actions, "much less that age discrimination motivated their dismissal"); see alsoLeBlanc, 6 F.3d at 848-49 (noting various flaws and lapses in ADEA plaintiff's sketchy statistical information). Nor did Shorette attempt to show that either of the manager trainees went on to become a store manager, thereby displacing him, see supra note 3, nor adduce any evidence that either trainee was either equally or less proficient than Shorette in operating the Rite Aid computer system, thus equally or less qualified for a store-manager position. See Testerman v. EDS Tech. Prods. Corp., 98 F.3d 297, 305 (7th Cir. 1996) (noting that such evidence might be probative of pretext); Hidalgo, 120 F.3d at 332 (noting that fourth prong of prima facie case requires plaintiff to prove that "[he] was replaced by a person with roughly equivalent job qualifications"). Finally, Shorette argues that Rite Aid failed to abide by its established policy contemporaneously to document trainees' deficiencies in formal Trainee Progress Reports, and instead had Pattershall and Cyrway write up their assessments of his computer skills as informal notes after Shorette brought suit. See, e.g., Futrell v. J.I. Case, 38 F.3d 342, 349 (7th Cir. 1994) (employer's failure to follow contemporaneous procedure, and later attempts to make it falsely appear that its reasons predated its employment action, may be evidence of discriminatory intent). From this premise, Shorette would have a factfinder infer that Rite Aid, after the fact, manufactured its allegation that he lacked the requisite computer skills. The record fails to bear out Shorette's premise. Rather, Shorette's counsel asked Rite Aid District Manager Gilman whether "Rite Aid has a formal warning notice and corrective review," to which Gilman replied: "Yes." Gilman then admitted that the only documentation he had seen concerning Shorette's computer training were the "notes" of Pattershall and Cyrway. When pressed by Shorette's counsel to deny that Pattershall and Cyrway prepared these notes after Shorette filed suit, Gilman responded that he did not know when the notes were prepared. Thus, the record fails to disclose whether Rite Aid's so-called "formal warning notice and corrective review" procedure was mandated in all instances, or even in such cases as Shorette's. More importantly, the mere suggestion to Gilman that the Pattershall and Cyrway "notes" were not made contemporaneously with Shorette's training is no substitute for evidence that the notes were produced after Shorette filed suit. Thus, once again Shorette would have the factfinder rely upon "unsupported speculation." See Medina-Munoz, 896 F.2d at 8. III CONCLUSION As Shorette failed to adduce either direct or circumstantial evidence which would enable a rational jury to find in his favor, the district court judgment must be affirmed; coststo appellee. SO ORDERED.