Rand v . New Hampton School CV-99-134-JD 04/24/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Patricia Rand
v. Civil N o . 99-134-JD
Opinion N o . 2000 DNH 100
New Hampton School
O R D E R
The plaintiff, Patricia Rand, was an employee of the
defendant, New Hampton School (the “School”). After the School
declined to renew Rand’s employment contract, Rand sued the
School under the Age Discrimination in Employment Act (ADEA), 29
U.S.C.A. §§ 621-634 (1999), and New Hampshire common law. The
School moves for partial summary judgment on Rand’s ADEA claim
only (Count I of the complaint), and Rand objects.
Background
The School is a private boarding and day college preparatory
school located in New Hampton, New Hampshire. Jeffrey Beedy has
been Headmaster of the School since 1992. Beedy has the ultimate
authority for hiring, promoting, and discharging employees.
Beedy hired Rand in 1993 as a secretary in the Admissions
department. At the time she was hired, Rand was fifty-three
years old.
2
Rand was hired on a yearly contract basis. She was promoted
several times, and in 1995, she was promoted to hold both the
positions of Director of Admissions and Director of Financial
Aid. Beedy gave Rand’s work high praise, and on one occasion, he
expressed his happiness that she would remain at the School for
many years.
In early May of 1997, Rand was informed by two School
administrators, Alan Crocker and Jill Duncan, that Beedy wanted
to hire another person to work in Admissions. Rand was initially
told that the new employee would provide her with additional
support. Instead, Beedy had decided to hire a new person to lead
the Admissions office, but Rand was not told this. The School
contends that Beedy wanted to hire someone who would lead the
Admissions department and the School “to the next level,” while
still utilizing Rand’s skills and experience. Beedy felt that
Rand was not able to take the School “to the next level.” In
particular, Beedy wanted a leader in Admissions who could
diversify the School’s student body and take better advantage of
technology and automation. Rand claims that the School
improperly assumed she could not keep up with technological
developments because of her age.
Later in May of 1997, Rand met with Beedy and Crocker and
was told that the new employee would be designated Head of
3
Admissions. She was informed that she would retain the title of
Director of Admissions, and her salary and office would not
change. In June of 1997, the School hired Andrew Churchill, age
2 7 , to be the Head of Admissions. Churchill had four years of
experience in school admissions and two years of experience with
financial aid. Despite the difference in their ages, Rand and
Churchill had similar amounts of relevant work experience.
On July 2 5 , 1997, Rand’s employment contract was renewed
effective July 1 , 1997, through June 3 0 , 1998. The contract
retained her job title of Director of Admissions, and Rand
received a salary increase. However, Churchill’s job duties put
him in charge of Admissions, and Rand was functionally his
subordinate. Churchill was unaware that Rand was supposed to
retain the title of Director of Admissions, and Beedy represented
in a report to the School’s Board of Trustees that Rand had a new
role as a senior admissions associate.
The working relationship between Rand and Churchill quickly
chilled. The parties dispute the source of the conflict. Rand
claims it stemmed from Churchill’s discomfort with her age,
experience, and long-standing success at the School. At any
rate, it is undisputed that Churchill and Rand had difficulty
working together. In January of 1998, Churchill wrote a negative
performance evaluation of Rand. None of Rand’s previous
4
evaluations had been negative.
Churchill and Rand both discussed their problems working
together with Beedy. In April of 1998, Beedy decided not to
renew Rand’s employment contract, and Churchill informed Rand of
this decision. At that time, Rand was age 5 7 . Shortly
thereafter, Crocker told Rand the School wanted to give her a
retirement party as well as a rocking chair or some other parting
gift. Rand indicated she did not want any of these things
because she was not retiring. The School later sent her a
rocking chair.
Standard of Review
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 a matter of law.” Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See DeNovellis v . Shalala, 124 F.3d 298, 306 (1st Cir. 1997)
(citing Celotex Corp. v . Catrett,
477 U.S. 317, 323 (1986)). The
record evidence is taken in the light most favorable to the
nonmoving party, indulging all reasonable inferences in her
5
favor. See Fernandes v . Costa Bros. Masonry, Inc., 199 F.3d 572,
577 (1st Cir. 1999). An issue of fact is genuine if there is
sufficient evidence to permit a rational fact-finder, considering
the evidence in the light most favorable to the nonmoving party,
to find for either party. See Medina-Munoz v . R.J. Reynolds
Tobacco Co.,
896 F.2d 5 , 8 (1st Cir. 1990).
In response to a properly supported motion for summary
judgment, the nonmoving party bears the burden to show a genuine
issue for trial by presenting significant material evidence in
support of the claim. See Tardie v . Rehabilitation Hosp., 168
F.3d 538, 541 (1st Cir. 1999). “If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted. Even in cases where elusive concepts such as
motive or intent are at issue, summary judgment may be
appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation.”
Medina-Munoz,
896 F.2d at 8 (internal quotations and citations
omitted). Summary judgment will not be granted as long as a
reasonable jury could return a verdict in favor of the nonmoving
party. Anderson v . Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986).
6
Discussion
Rand claims that the School’s decision not to renew her
contract was unlawfully motivated by age discrimination. The
School contends that it is entitled to summary judgment because
Rand has failed to present direct evidence of age discrimination,
has not successfully made out a prima facie case of age
discrimination, and cannot prove that the School’s alleged
legitimate reasons for its actions are pretext or that the School
was motivated by discriminatory animus. Rand challenges all of
these arguments.
I. Burden of Proof
The parties dispute which legal framework should govern the
court’s analysis. There are two such frameworks available to the
court in a disparate treatment case such as this one, the mixed-motive analysis and the pretext analysis. See Fernandes, 199
F.3d at 579-81.1 Where direct evidence shows that an employer
was substantially motivated by discriminatory animus in making a
challenged employment decision, the court employs the mixed-motive analysis set forth in Price Waterhouse v . Hopkins, 490
1
The court cites to Title VII and ADEA cases without
distinction because the same burden-shifting frameworks apply in
both types of cases. See Smith v . F.W. Morse & Co., 76 F.3d 413,
421 n.4 (1st Cir. 1996).
7
U.S. 228 (1989). See Fernandes,
199 F.3d at 580; Smith,
76 F.3d
at 421. In all other cases, the court uses the familiar pretext
analysis from McDonnell Douglas Corp. v . Green,
411 U.S. 792
(1973). See Fernandes,
199 F.3d at 580. Therefore, the court
first considers whether Rand has presented sufficient direct
evidence to warrant use of the mixed-motive analysis.2
Determining what qualifies as direct evidence can be
difficult. See, e.g., Dominguez-Cruz v . Suttle Caribe, Inc., 202
F.3d 424, 429 (1st Cir. 2000) (reserving judgment on direct
evidence issue and using McDonnell Douglas standard). The First
Circuit has not settled on a standard for addressing this
question. See Fernandes,
199 F.3d at 582-83 (discussing other
circuits’ positions but declining to decide). However, the court
is guided by some benchmarks. For example, “stray remarks” made
in the workplace by employees who lack the authority to make
2
Rand cites Cardona Jimenez v . Bancomerico de Puerto Rico,
174 F.3d 36 (1st Cir. 1999), for the proposition that when a
plaintiff has direct evidence of discriminatory animus, the case
should proceed directly to the jury. See
id. at 4 0 . While this
rule might apply “in cases concerning the legitimacy of
employment practices acknowledged to be the basis for the adverse
employment decision,” in most cases, including the present one,
the employer offers another legitimate reason for the adverse
employment decision, thereby requiring a mixed-motive analysis.
Griffiths v . Cigna Corp.,
988 F.2d 457, 470 n.12 (3d Cir. 1993),
overruled on other grounds, Miller v . Cigna Corp.,
47 F.3d 586
(3d Cir. 1995).
8
employment decisions, or remarks made outside the context of an
employment decision, do not constitute direct evidence of animus.
See Ayala-Gerena v . Bristol Myers-Squibb Co., 95 F.3d 8 6 , 96 (1st
Cir. 1996); see also Shorette v . Rite Aid of Maine, Inc.,
155
F.3d 8 , 13 (1st Cir. 1998). Direct evidence must be more closely
linked to the adverse employment decision. See Shorette,
155
F.3d at 13-14; Ayala-Gerena,
95 F.3d at 96-97. Furthermore, “a
statement that plausibly can be interpreted two different ways —
one discriminatory and the other benign — does not directly
reflect illegal animus and, thus, does not constitute direct
evidence.” Fernandes,
199 F.3d at 583.
Rand presents the following as direct evidence of the
School’s discriminatory animus. First, she argues that Crocker
and Duncan both admitted that Churchill’s problems with Rand
stemmed from his insecurities about age.3 Assuming, for now,
3
The parties point to the following deposition excerpts:
Q. Do you believe that Mr. Churchill felt threatened at
all by M s . Rand’s age and experience?
A. I believe he felt insecure by the situation.
Q. What do you mean by that?
A. He’s young and I believe he came in wanting to make a
good impression and wanting to be well-liked and that
the more he did, the less successful he was and the
less people liked him and the more insecure he got.
Q. Do you believe the fact that he was young and M s . Rand
was older played a part in any of this insecurity?
A. I don’t think that it had so much to do with either one
9
that Churchill was involved in the School’s decision not to renew
Rand’s contract, the evidence Rand submits to support Churchill’s
alleged insecurities is inconclusive and does not directly show
illegal motivation connected with the decision to terminate Rand.
Rand also argues that Crocker’s offers to her of a
retirement party and a rocking chair are direct evidence of
discriminatory animus. These gestures are ambiguous, as they can
be interpreted plausibly to represent the School’s good wishes
of their ages as it did the relationships. Pat had
great relationships built within the school and with
the external community with parents, with kids, with
consultants and I think that’s what he was insecure
about.
Q. Do you believe age played some role in his feeling of
insecurity in coming to New Hampton School?
A. No.
Q. Do you feel that he felt threatened at all by M s .
Rand’s age?
A. Not by her age.
Duncan Dep. at 68-70.
A. Mr. Crocker explained to me why he felt [Churchill] was
intimidated by m e . When I went to Alan [Crocker] at
one point for some guidance, some support and was told
that, yeah, he was intimidated by m e , but anyone would
be at his age who’s coming in and was asked to run a
department where the previous director who was older
and had success, had several successful years, he would
be intimidated.
Rand Dep. at 8 0 .
10
and appreciation for Rand’s contributions. Without more, Rand
does not present direct evidence that the School discriminated
against her. Therefore, the court applies the McDonnell Douglas
pretext analysis.
II. Application of McDonnell Douglas standard
Under this analysis, the plaintiff must first establish a
prima facie case. See Cruz-Ramos v . Puerto Rico Sun Oil Co., 202
F.3d 381, 384 (1st Cir. 2000). “Establishment of a prima facie
case creates a presumption of unlawful discrimination.”
Rodriguez-Cuervos v . Wal-Mart Stores, Inc.,
181 F.3d 1 5 , 19 (1st
Cir. 1999). To rebut this presumption, the employer has the
burden of articulating a legitimate, nondiscriminatory reason for
taking the challenged employment action. See Cruz-Ramos,
202
F.3d at 384; Rodriguez-Cuervos,
181 F.3d at 1 9 . “If the employer
meets its burden, the presumption of discrimination vanishes.”
Brennan v . GTE Gov’t Sys. Corp.,
150 F.3d 2 1 , 26 (1st Cir. 1998).
Then, the plaintiff must “show both that the employer’s
‘proffered reason is a sham, and that discriminatory animus
sparked [its] actions.’” See Cruz-Ramos,
202 F.3d at 384
(quoting Conward v . Cambridge Sch. Comm.,
171 F.3d 1 2 , 19 (1st
Cir. 1999)). At the summary judgment stage, the defendant could
prevail only if the plaintiff “failed to adduce sufficient
11
evidence from which a rational factfinder could return a verdict
in [her] favor, without resorting to conclusory allegations,
improbable inferences, and unsupported speculation.” Shorette,
155 F.3d at 12 (internal citations and quotations omitted).
A. Prima Facie Case
The School contests Rand’s showing on one element of the
prima facie case only, that the School replaced Rand with a
“person with roughly equivalent job qualifications.”4 Hidalgo v .
Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir.
1997) (citing Goldman v . First Nat’l Bank of Boston,
985 F.2d
1113 (1st Cir. 1993)). “[I]n a nonreduction in force scenario,
it is enough for the plaintiff to show that the employer sought
some form of replacement performance, which would demonstrate its
continued need for the same services and skills.” Hidalgo,
120
F.3d at 332-33 (internal quotations omitted). A replacement does
not have to be formally designated a replacement. See
id. at 333
(citing Loeb v . Textron, Inc.,
600 F.2d 1003, 1013 (1st Cir.
1979)). A plaintiff can meet her burden on this element, at
4
This version of this prima facie element applies in
nonreduction in force cases. The parties have not argued, and
the record does not indicate, that this case involves a reduction
in force. Therefore, the court assumes that this a nonreduction
in force case.
12
least in a nonreduction in force case, by showing that her job
duties were absorbed by the defendant’s employees after her
employment was terminated. See Hidalgo, 120 F.3d at 334 (citing
Kale v . Combined Ins. C o . of Am.,
861 F.2d 746, 760 (1st Cir.
1988)). 5 The School admits that Rand’s duties were absorbed by
existing employees after her departure. Therefore, Rand has met
her burden of presenting a prima facie case of age
discrimination. See id. at 334 (citations omitted) (prima facie
burden is not onerous).
B. Pretext / Discriminatory Animus
The School has articulated a legitimate, non-discriminatory
reason for declining to renew Rand’s contract — namely, that her
working relationship with her supervisor, Churchill, deteriorated
due to a personality conflict. To survive summary judgment, Rand
must raise a genuine issue of fact that she received disparate
treatment on the basis of age. See Dominguez-Cruz, 202 F.3d at
430-31; Thomas v . Eastman Kodak Co.,
183 F.3d 3 8 , 58 (1st Cir.
5
The School cites Cruz-Ramos to argue that no “replacement”
occurs when existing employees absorb the duties of a discharged
employee. However, Cruz-Ramos and the case it cites are both
reduction in force cases, which operate under a slightly
different prima facie case. See Cruz-Ramos, 202 F.3d at 384;
LeBlanc v . Great Am. Ins. Co.,
6 F.3d 836, 8 4 2 , 846 (1st Cir.
1993).
13
1999), cert. denied, 120 S . C t . 1174 (2000).
The First Circuit has long held that to avoid summary
judgment at the third stage of the McDonnell Douglas analysis,
the plaintiff “must adduce minimally sufficient evidence of
pretext and discriminatory animus.” Goldman, 985 F.2d at 1117;
see also Dominguez-Cruz,
202 F.3d at 430. The First Circuit has
also held that the plaintiff does not necessarily have to provide
separate proof of pretext and discriminatory animus. See Thomas,
183 F.3d at 57-58, 6 2 . The same evidence may be used to prove
both, “provided that the evidence is adequate to enable a
rational factfinder reasonably to infer that unlawful
discrimination was a determinative factor in the adverse
employment action.”
Id. at 57 (quoting Rodriguez-Cuervos,
181
F.3d at 22 n . 5 ) . “[T]he focus should be on the ultimate issue:
whether, viewing the aggregate package of proof offered by the
plaintiff and taking all inferences in the plaintiff’s favor, the
plaintiff has raised a genuine issue of fact as to whether the
termination of the plaintiff’s employment was motivated by age
discrimination.” Dominguez-Cruz,
202 F.3d at 431 (internal
quotations omitted).
Rand does not dispute that she and Churchill had a
personality conflict, or that the School fired her because of
this conflict. Instead, she argues that the personality conflict
14
itself was tainted by Churchill’s discriminatory animus, and
therefore the School cannot rely on the personality conflict as a
legitimate reason for not renewing her contract.
Rand’s argument is similar to the plaintiff’s argument in
Thomas. See Thomas, 183 F.3d at 5 8 . In that case, the
plaintiff’s supervisor allegedly discriminated on the basis of
race by giving the plaintiff negative work evaluations. The
employer then fired the plaintiff based on those evaluations.
The employer’s discrimination lay not in the decision to fire,
but in the supervisor’s actions that led to the decision to fire.
See
id. Rand and Churchill, her supervisor, had a personality
conflict that led to Rand’s firing. If the personality conflict
grew out of Churchill’s discriminatory animus, then the School’s
reliance on that conflict makes the firing discriminatory.
Furthermore, the First Circuit stated in Thomas that an
employer does not have to discriminate consciously; it is enough
if it does so “because of unthinking stereotypes or bias.” Id.
(citations omitted). Therefore, if the supervisor in Thomas
issued performance evaluations that were tainted by
discriminatory stereotype or bias, then her actions were
discriminatory, even if she was unaware of the illegal influence
on her actions. See
id. Similarly, if Churchill unknowingly
wrote his negative performance evaluation of Rand based in part
15
on his bias or stereotypes about older people, or if he
unwittingly worsened their working relationship by exercising
negative stereotypes based on age, and these actions led to
Rand’s firing, then the firing was discriminatory.6
Accordingly, it is relevant whether the personality conflict
between Rand and Churchill was caused by Churchill’s stereotypes
or biases concerning older people, as Rand claims. To support
her claim, Rand points to evidence that Churchill acted
unprofessionally towards her, showing disregard for her
abilities.7 This inappropriate behavior could suggest to a
6
Furthermore, the record presents a factual question
concerning the level of Churchill’s involvement in the decision
not to renew Rand’s contract. While it is undisputed that Beedy
had final authority to make such decisions, the record shows that
Churchill may have personally influenced Beedy’s decision to fire
Rand. See, e.g., Crocker Dep. at 89 (“The decision when [Rand]
wasn’t going to be renewed, which was Jeff [Beedy] and Andy’s
[Churchill’s], was really that they weren’t working together.”).
7
Rand points to the following excerpt from her own
deposition to demonstrate Churchill’s unprofessional behavior:
Q. How would [Churchill] react when you showed that you
had a relationship or rapport with consultants?
A. He chose not to allow me to go to conferences.
...
Q. How would [Churchill] react when you showed you had a
relationship or rapport with families that indicated to
you that he was threatened?
A. He would get angry and then it would come out in his
behavior towards m e .
Rand. Dep. at 105.
16
factfinder that Churchill did not respond neutrally to Rand. See
id. at 6 4 . Rand claims that Crocker and Duncan acknowledged
Churchill’s age-based insecurities, as discussed above in the
context of direct evidence. While this evidence is not strong
enough to constitute direct evidence of discriminatory animus on
Churchill’s part, it is probative of the role age played in
Churchill’s perceptions o f , and behavior towards, Rand.
Rand also points to Churchill’s negative evaluation of her
work performance, in contrast to previous positive evaluations.
Supervisors who unwittingly fall victim to stereotyping may give
employees unduly harsh performance evaluations, especially in
environments where there is only one employee who fits into a
particular stereotyped category. See Thomas, 183 F.3d at 6 1 . On
the other hand, when an employee’s evaluations decline under a
new supervisor, it could simply indicate that the new supervisor
operates by higher standards. See
id. at 6 2 ; Rodriguez-Cuervos,
181 F.3d at 2 0 . Rand does not point to evidence indicating that
Churchill treated her differently from younger employees or
evaluated her performance more strictly than he did others. See,
e.g., Thomas,
183 F.3d at 62 (comparing supervisor’s grades of
plaintiff’s performance with grades of other employees).
However, the record does show that Beedy highly praised Rand’s
performance in the years prior to Churchill’s arrival at the
17
School, and that Rand was considered a strong asset to the School
by administrators, as well as parents and consultants that she
dealt with on the job.8
Taking the facts before the court in the light most
favorable to Rand, it is conceivable that a factfinder could find
that the personality conflict between Rand and Churchill was
caused substantially by Churchill’s discriminatory conduct and
animus towards Rand. Therefore, Rand has raised a genuine issue
of fact concerning the legitimacy of the School’s reason for
discharging her. Furthermore, Rand has raised a genuine issue of
fact that the School’s decision to terminate Rand was predicated
8
The School argues that because the same person (Beedy) both
hired and fired Rand, the court should strongly infer that the
School did not discriminate by firing Rand. See LeBlanc, 6 F.3d
at 847 (citations omitted). However, approximately five years
passed between the commencement and termination of Rand’s
employment. The School’s administrators could well have changed
their perception of Rand based on age during that time. More
importantly, Churchill was not involved in Rand’s hiring, and
there is evidence to indicate he may have been involved in the
decision to terminate her, even if he did not have the ultimate
authority to do s o . Under these facts, it is inappropriate to
place strong emphasis on Beedy’s role in both hiring and firing
Rand. Similarly, while the fact that Rand was already age 53
when she was hired is probative, the School has not cited First
Circuit case law to support a strong inference against
discrimination in firing just because Rand was a member of the
protected class when she was hired.
18
on a personality conflict caused by age-based animus by Rand’s
supervisor. Therefore, Rand has raised sufficient issues to
defeat summary judgment.
Conclusion
For the foregoing reasons, the defendant’s motion for
partial summary judgment (document n o . 13) is denied.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
April 2 4 , 2000
cc: Lauren S . Irwin, Esquire
Jennifer Shea Moeckell, Esquire
19
