Bresett v . Claremont CV-01-343-M 08/28/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Norman Bresett, Plaintiff

v. Civil N o . 01-343-M Opinion N o .

City of Claremont, Defendant

O R D E R

In February of 1999, the City of Claremont published a

newspaper advertisement informing the public that it was

accepting employment applications for positions as a skilled

laborer and truck driver. The advertisement provided that

qualified applicants should hold a current commercial driver’s

licence and have experience operating heavy equipment.

Plaintiff, Norman Bresett, has both and, within a week of the

publication of the advertisement, submitted a completed job

application. At the time, he was 61 years old.

Bresett was never given an interview and eventually learned

that the City had made offers to several other applicants, each

of whom was substantially younger than he and, according to Bresett, less qualified than h e . When Bresett inquired of City

officials as to why he was never even given an interview, he says

he received inconsistent and often factually inaccurate

explanations. Suspecting that he had been the victim of unlawful

discrimination, Bresett filed a two count complaint against the

City, alleging that it discriminated against him on the basis of

his age, in violation of the Age Discrimination and Employment

Act (“ADEA”),

, et seq., and New Hampshire’s Law

Against discrimination, N.H. Rev. Stat. Ann. ch. (“RSA”) 354-A.

The City denies any wrongdoing and moves for summary judgment.

Bresett objects.

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v . Smith,

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

2 ‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Intern’l Ass’n of

Machinists and Aerospace Workers v . Winship Green Nursing Center,

(1st Cir. 1996) (citations omitted).

Nevertheless, if the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

be granted.” Anderson v . Liberty Lobby, Inc.,

, 249-

50 (1986) (citations omitted). As the Court of Appeals for the

First Circuit has observed, “the evidence illustrating the

factual controversy cannot be conjectural or problematic; it must

have substance in the sense that it limns differing versions of

the truth which a factfinder must resolve at an ensuing trial.

Conclusory allegations, improbable inferences, and unsupported

speculation will not suffice.” Cadle C o . v . Hayes,

(1st Cir. 1997) (citations and internal quotation marks

omitted). See also Matsushita Elec. Indus. C o . v . Zenith Radio

Corp.,

(1986) (“Where the record taken as a

whole could not lead a rational trier of fact to find for the

3 non-moving party, there is no ‘genuine issue for trial.’”)

(citation omitted).

Discussion

I. The ADEA.

The ADEA makes it unlawful for any employer to “fail or

refuse to hire . . . any individual . . . because of such

individual’s age.”

(a)(1). In cases such as

this, where there is little or no overt evidence of age

discrimination, courts typically employ the burden-shifting

framework articulated by the Supreme Court in McDonnell Douglas

Corp. v . Green,

(1973). The Court of Appeals for

the First Circuit has summarized the McDonnell Douglas burden-

shifting paradigm as follows:

Under this formulation, a plaintiff opens with a prima facie showing of certain standardized elements suggestive of possible discrimination.

* * *

Establishment of the prescribed prima facie case creates a presumption that the employer engaged in impermissible age discrimination. However, to rebut this presumption, the employer need only “articulate a legitimate nondiscriminatory reason for the employee’s termination.” The employer’s obligation is simply one of production. “The

4 burden of persuasion remains [the employee’s] at all times.”

LeBlanc v . Great American Ins. Co.,

(1st Cir.

1993) (citations omitted).

Assuming the employee has established a prima facie case

suggestive of age discrimination, and provided the employer then

responds with a legitimate, nondiscriminatory reason for the

adverse employment action, the burden of persuasion reverts to

the plaintiff.

[Once] the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework -- with its presumptions and burdens -- is no longer relevant. To resurrect it later, after the trier of fact has determined that what was “produced” to meet the burden of production is not credible, flies in the face of our holding in Burdine that to rebut the presumption “the defendant need not persuade the court that it was actually motivated by the proffered reasons.” 450 U.S. at 254. The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture.

St. Mary’s Honor Center v . Hicks,

(1993).

S o , to survive summary judgment, the plaintiff must then produce

sufficient evidence to warrant the factual conclusion that the

5 reason articulated by the employer for the adverse employment

action was a mere pretext for unlawful age discrimination.

LeBlanc,

. And, in this circuit, the employee must

produce “not only minimally sufficient evidence of pretext, but

evidence that overall reasonably supports a finding of

discriminatory animus.”

(citation and internal

quotations omitted). The plaintiff “may not simply refute or

question the employer’s reasons. To defeat summary judgment at

this stage, a plaintiff must produce evidence that the real

reason for the employer’s actions was discrimination.” Gadson v .

Concord Hospital,

2 , 34 (1st Cir. 1992). In

appropriate circumstances, however, “[w]hen the prima facie case

is very strong and disbelief of the proffered reason provides

cause to believe that the employer was motivated by a

discriminatory purpose, proof of pretext [alone] ‘may’ be

sufficient.” Lattimore v . Polaroid Corp.,

(1st

Cir. 1996) (citing S t . Mary’s Honor Center,

)

(emphasis supplied). See generally Reeves v . Sanderson Plumbing

Products, Inc.,

(2000).

6 II. Plaintiff’s Evidence.

The City concedes that Bresett has established a prima facie

case of discrimination under the ADEA. See Defendant’s

memorandum (document n o . 15) at 1 4 . Consequently, the burden

shifts to the City to articulate a legitimate, non-discriminatory

basis for its decision not to interview (or hire) Bresett. On

that point, the City says its decision-makers (City Manager,

Robert Porter, and Director of the City’s Department of Public

Works, Peter Goewey) “formed a negative opinion of [Bresett],

entirely unrelated to his age.” Defendant’s memorandum at 1 5 .

Specifically, the City says: (1) prior to receiving Bresett’s job

application, both Porter and Goewey knew of him from the

community and neither had a favorable opinion of him or his work

ethic; (2) Porter had heard that Bresett had been discharged by a

previous employer for having stolen company property; (3) Porter

also believed Bresett was a smoker and, therefore, physically

unfit and felt that unfit people “tended to dislike the physical

demands of the skilled laborer position and, as a result,

developed poor attitudes toward their jobs” (improving morale in

the City’s employees was, according to the City, a priority); (4)

several years ago, Goewey had seen Bresett on a number of

7 occasions visiting a friend at the friend’s place of employment,

often speaking negatively about his then-current employer and

occasionally drinking alcoholic beverages on the premises; (5)

Bresett was not “aggressive” about obtaining employment with the

City, while other applicants repeatedly and consistently

expressed an interest in working for the City; and (6) only a few

months before deciding not to interview Bresett, Porter and

Goewey hired a 61 year-old applicant to work as a water treatment

plant operator, thus demonstrating that they bore no animus

against older workers.

Bresett labels each of the City’s proffered explanations an

after-the-fact rationalization, designed to conceal Porter’s and

Goewey’s true discriminatory animus. Although Bresett endeavors

to undermine each of the City’s stated reasons for not hiring

him, he is unable to point to any evidence suggesting that Porter

or Goewey did not truly believe the explanations they offered or,

perhaps more importantly, that they were actually motivated by an

unlawful age bias in deciding not to extend Bresett a job offer.

8 For example, Bresett admits that he was fired by a prior

employer for “alleged theft,” but points out that the employer

subsequently rehired him and, upon Bresett’s departure, provided

him with a positive recommendation. Consequently, he suggests

that the City should not have drawn any adverse inferences from

those events.

With regard to his health and fitness, Bresett admits that

he is a smoker (and does not deny that he is overweight), but

says that the City could have (and should have) implemented a no-

smoking policy if it were truly concerned that its employees be

physically fit. Bresett also points out that the City hired

George Miller, who is a smoker. From that, he says, “[a] jury

could conclude that either Mr. Goewey and[/or] M r . Porter knew

Mr. Miller smoked and offered him a job anyway or did not ask,

either of which demonstrates that Mr. Bresett’s smoking was not a

real reason for rejecting his application.” Plaintiff’s

objection at 1 2 . Finally, as to Goewey’s claim that he observed

Bresett complaining about a former employer and drinking beer at

one of his friend’s place of employment, Bresett points out that

9 those events happened nearly 20 years ago and suggests that they

are an unreasonable basis upon which to make a hiring decision.

Bresett also claims that some of the applicants interviewed

and/or actually extended job offers had less experience than he.

S o , for example, he says:

[O]ther applicants to whom the City extended offers had no qualifications whatsoever for the position or were considerably less qualified than Mr. Bresett. For instance, M r . Benware, age 4 1 , did not have a [commercial driver’s license] and left the “Skills, Qualifications, and Experience” section completely blank. Mr. Leavitt, age 3 7 , did not have a [commercial driver’s license], and his resume did not reflect that he had any experience with heavy equipment operation. Mr. Miller, age 3 5 , Mr. DeCoteau, age 3 7 , and Mr. Zullo, age 4 5 , had [commercial driver’s licenses] and indicated some experience with heavy equipment operation, but not as much as M r . Bresett listed. Nevertheless, they were given interviews and job offers and were significantly younger than M r . Bresett.

Plaintiff’s objection (document n o . 17) at 11 (emphasis in

original).

In response, the City offers legitimate reasons for having

interviewed and/or extended offers of employment to each of those

applicants. They include Porter’s and/or Goewey’s personal

10 knowledge of the applicant, superior applicable job experience or

skills, stable and long-lasting employment history, and superior

references from prior employers. See generally Defendant’s

memorandum at 8-10. For example, the City says that Daniel

Benware was interviewed and eventually hired as a skilled laborer

at least in part because his application revealed a stable

employment history - he worked for the same employer since

graduating from high school. Additionally, Goewey went to school

with him, knew his family members, and believed they all

possessed a strong work ethic. Goewey also knew that Benware was

active in the community (coaching youth sports) and, for that

reason, says he viewed Benware as a potentially valuable

employee. Accordingly, Benware was given an interview, at which

he impressed both Porter and Goewey with his confidence and

willingness to perform any duties listed in the job description

for skilled laborer. While Bresett argues that those are

unreasonable factors upon which to base a hiring decision, he has

not pointed to any evidence that would suggest that Porter or

Goewey did not rely on those factors when making their decision.

11 III. Plaintiff’s Legal Argument.

The crux of plaintiff’s argument against summary judgment is

that he has presented “compelling substantive evidence

demonstrating that the City’s articulated reasons [for not hiring

him] were simply a pretext for discrimination.” Plaintiff’s

objection at 1 . Additionally, he claims that he has presented

sufficient evidence to cast reasonable doubt on the City’s

proffered justifications for its actions and asserts that a “jury

may reject the legitimate business justification defense simply

because it finds that the defendant lacks credibility.”

As to plaintiff’s first point - that he has presented

“compelling substantive evidence” showing that the City’s stated

reasons for its actions are simply a pretext for age-based

discrimination - the court disagrees. While plaintiff might

legitimately question the fairness or reasonableness of the

City’s stated reasons for its conduct, he has not produced

evidence from which a reasonable trier of fact might properly

conclude that Porter or Goewey did not truly act for the reasons

they have offered. And, more to the point, nothing Bresett

12 offers even suggests that Porter or Goewey was motivated by an

unlawful age bias.

For example, while it might not be viewed as “fair” that

Goewey formed a negative opinion of Bresett nearly twenty years

ago when he overheard Bresett complaining about his employer and

observed him drinking beer while at a friend’s place of

employment, neither the ADEA nor New Hampshire’s Law Against

Discrimination prohibits employers from making hiring decisions

based upon such views. The same is obviously true with regard to

Goewey’s favorable opinion of Benware, based upon having attended

school with him, knowing his family members are hard-working, and

familiarity with his volunteer work in the community. Merely

questioning an employer’s reasons for its hiring decisions, or

suggesting that assessing more reliable factors would have

produced a different result, is simply insufficient to

demonstrate a pretext for discrimination. As the Court of

Appeals for the Seventh Circuit has explained:

It is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. Mister v . Illinois Cent. Gulf R.R. Co.,

(7th Cir. 1987) (“The employer need not have ‘good’ reasons, and a mistaken business decision

13 is not on that account a ‘pretext.’”). He must show that the explanation given is “a phony reason.” If the plaintiff shows that the reason given is not true, then he has shown pretext. Having done s o , the trier of fact is allowed to infer that the falsehood was meant to conceal illegal job discrimination.

Pignato v . American Trans. Air, Inc.,

(7th Cir.

1994) (emphasis in original). See also Vega v . Kodak Caribbean,

Ltd.,

(1st Cir. 1993) (“To prevail at this third

stage [of the McDonnell Douglas framework], the plaintiff must

ordinarily do more than impugn the legitimacy of the employer’s

asserted justification.”). Here, notwithstanding his assertions

to the contrary, Bresett has pointed to no evidence that i s ,

either directly or implicitly, supportive of his claim that the

City’s stated explanations for its decision not to interview him

are either untrue or a pretext for unlawful age-based

discrimination.

Bresett’s second argument - that a trier of fact might still

reasonably infer unlawful discrimination in this case - is based

largely upon the Supreme Court’s recent opinion in

There, the Court made clear that “it is permissible for the trier

of fact to infer the ultimate fact of discrimination from the

14 falsity of the employer’s explanation [for the adverse employment

action].”

(emphasis in original). The Court

went on to observe that:

Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.”

(citations omitted) (emphasis supplied). The Court did,

however, offer the following cautionary statement:

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.

15 Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.

(emphasis in original).

Ultimately, the Court concluded that because the plaintiff

in that case had established a prima facie case of

discrimination, and made a “substantial showing” that the

employer’s proffered justification for the adverse employment

action was false, and provided additional evidence of intentional

age-based discrimination, the court of appeals erred in

overturning a jury’s verdict in favor of the plaintiff.

.

This case i s , however, plainly distinguishable. Critically,

Bresett has failed to point to sufficient evidence to warrant the

conclusion that the City’s proffered justifications for its

actions are false. For example, with regard to his smoking,

Bresett suggests that it was not a real factor in the City’s

16 decision not to interview him. If an employee’s smoking habits

were of true concern to the City, says Bresett, it could have

implemented a no-smoking policy. It did not - a fact he says

demonstrates that applicants’ smoking habits did not actually

color the City’s perception of them. In further support of his

point, Bresett points out that the City hired George Miller, who

is a smoker. From that, he says a jury might reasonably infer

that Goewey and/or Porter lied when they said Bresett’s smoking

was a factor that weighed against him.

Bresett i s , however, incorrect. He has pointed to no

evidence from which a jury might reasonably draw such an

inference, particularly in light of the uncontroverted testimony

of Porter and Goewey, both of whom denied knowing that Miller was

a smoker when he was offered a position with the City. Any

conclusion that the City’s stated concern about Bresett’s smoking

and physical condition was false would be speculative.

While the City’s justifications for not interviewing (or

hiring) Bresett might be seen by some as unfair or unreasonable

o r , as Bresett suggests, “lacking in reliability,” plaintiff’s

17 objection at 1 4 , the record presented simply would not support

the conclusion that they are false. See, e.g., Williams v .

Raytheon Co.,

6 , 19 (1st Cir. 2000) (“Williams’ case is

a far cry from Reeves’. Williams made no showing, much less a

substantial showing, that the insubordination justification

[offered by his employer] was false.”). In other words, nothing

in the record suggests that Porter and/or Goewey acted for

reasons other than those offered. More importantly, there is no

evidence from which a trier of fact might reasonably infer that

their true motivation was an age-based discriminatory animus.

Employers are permitted to base their hiring decisions on any

number of factors and, unless they rely upon one or more of the

very few factors that are specifically proscribed by law (e.g.,

age, gender, race), employers need not have a solid evidentiary

basis for their hiring decisions, nor need those decisions be

reasonable, wise, rational, intelligent, or fair.

Absent sufficient evidence to warrant a reasonable

conclusion that the justifications proffered by the City are

false (or, of course, direct evidence supportive of his claim

that the City was motivated by an age-based animus), Bresett

18 cannot sustain his “ultimate burden of persuading the trier of

fact that the defendant intentionally discriminated against” him,

Texas Dept. of Community Affairs v . Burdine,

(1981), and, therefore, his complaint cannot survive the City’s

motion for summary judgment.

Conclusion

In order to survive summary judgment in the wake of the

City’s proffer of lawful justifications for its decision not to

interview (or hire) him, Bresett must point to sufficient

evidence to warrant a fact-finder’s conclusion that his age

“actually played a role in the [City’s] decisionmaking process

and had a determinative influence on the outcome.” Reeves,

(quoting Hazen Paper C o . v . Biggins,

(1993)). He may carry that burden in either of two ways.

First, he may point to direct evidence that is sufficient to

“permit a reasonable juror to find that [he] sustained his

ultimate burden of proving [the City] intentionally discriminated

against him on account of his [age].” Williams,

9 .

O r , in the absence of direct evidence of discrimination, he may

attempt to produce sufficient evidence to warrant the conclusion

19 that the City’s proffered explanations for its decision are

false. In appropriate circumstances, such a showing may be

sufficient to stave off summary judgment. Reeves,

(“[A] plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the employer

unlawfully discriminated.”).

This, however, is not such a case. First, Bresett has no

evidence that suggests, either directly or by implication, that

an age-based discriminatory animus motivated the City’s decision

not to hire him. He has also failed to point to sufficient

evidence to warrant the conclusion that the City’s stated, and

otherwise legally unobjectionable, reasons for its decision are

false. Absent such evidence, there is simply nothing from which

a properly instructed jury might reasonably conclude that, with

regard to his ADEA claim, Bresett has sustained his ultimate

burden of proof: to point to sufficient facts to warrant the

reasonable conclusion that the City intentionally discriminated

against him because of his age. As to Bresett’s ADEA claim,

therefore, defendant is entitled to judgment as a matter of law.

20 Finally, because Bresett bears the same burden of proof with

regard to his claim under New Hampshire’s Law Against

Discrimination, see Scarborough v . Arnold,

(1977);

N.H. Dept. of Corrections v . Butland, __ N.H. __,

(2002), defendant is entitled to judgment as a matter of law as

to that claim as well.

Accordingly, defendant’s motion for summary judgment

(document n o . 14) is granted. The Clerk of Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 2 8 , 2002

cc: Eleanor H. MacLellan, Esq. William R. Bagley, Jr., Esq.

21