Summary
ruling on motion for summary judgment
Summary of this case from Adams v. Massachusetts Dep't of RevenueOpinion
CIVIL ACTION NO. 02-12498-DPW
August 11, 2003
MEMORANDUM AND ORDER
Plaintiff Robert Heard brings this suit against Massachusetts Rehabilitation Commission ("MRC"), alleging race and age discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and Mass. Gen. Laws ch. 151B. Before me is defendant's motion for summary judgment which, for the reasons set forth more fully below, I will grant.
I. BACKGROUND
A. Factual History Heard is a fifty — five year old African-American male. In 1992, he was hired by the MRC as an Assistant Deputy Commissioner ("ADC") of Administration and Finance in the federally — funded Disability Determination Services Division. Like the other two ADCs at the MRC, Heard was hired at the M-VI grade level. In and around 1997, the MRC wrote to the Personnel Administrator of the state Human Resources Department ("HRD"), requesting that the grade level of all three ADCs, including plaintiff, be reclassified to M-VII. Defendant contends that at that time, the HRD reclassified one ADC, failing to elevate plaintiff and one other ADC. Plaintiff suggests that he alone was passed over for promotion, while the two non-minority ADCs were reclassified. Acknowledging the disparity in treatment, defendant sought to amend the situation by promoting Heard and the other ADC retroactively. Heard asserts that despite defendant's reparations, he will continue to suffer financial loss in calculating his retirement as a result of the initial disparity in treatment.
In plaintiff's Fed.R.Civ.P. 56.1 statement of undisputed facts, he fails explicitly to address several factual findings adduced by defendant in its 56.1 statement. Accordingly, where plaintiff has not specifically contested defendant's proffered facts, I am assuming that he has conceded defendant's account. See Fed.R.Civ.P. 56.1.
On May 22, 2000, the MRC requested that the HRD authorize the creation of a Deputy Commissioner ("DC") of Administration and Finance for the MRC. This position was to be paid out of federal Vocational Rehabilitation ("VR") funds. In early August of 2000, the MRC posted the position internally and externally pursuant to applicable procedure. Heard was one of approximately forty people who responded. He contends that his qualifications for the new DC position were his undergraduate and graduate degrees in business administration, his thirty plus years of professional experience in both the private and public sectors in disciplines outlined in the DC job posting, and his position with MRC as ADC of Administration and Finance. The defendant concedes that Heard is a highly valued MRC employee, whose evaluations had always rated him as meeting or exceeding expectations.
In October of 2000, the MRC put the posted DC position on hold. Notifying the applicants through a standard form mailing, the MRC explained that the delay was due to concerns regarding the recent 1.7 million dollar cutback in federal VR funding. After the DC job had remained on hold for close to one year, without reopening the application process, the MRC promoted Claire Ghiloni to the position, drawing her salary from state as opposed to federal funds. Before her promotion, Ghiloni was the Director of MRC's Statewide Employment Services Department, a state-funded position. Her new position as DC was to encompass aspects of her old job, while adding a research and development function to identify and pursue alternative funding sources for the MRC. At the time of her hire as DC, Ghiloni was forty-six years old. She is the first and only female to be appointed to the highest level of MRC senior management.
B. The Contentions of the Parties
Heard contends that defendant denied him equal opportunity to compete for the DC position, and in doing so discriminated against him on the basis of race and age, in violation of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e, and Mass. Gen. Laws ch. 151B. In addition, Heard presents a secondary claim, asserting that defendant's failure to promote him at the same time as his two Caucasian ADC counterparts constitutes race discrimination under 42 U.S.C. § 2000e and Mass. Gen. Laws ch. 151B.
In his complaint, plaintiff also brought a claim pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 251 621, et seq.. However, plaintiff subsequently acknowledged that the ADEA charge is barred by the Eleventh Amendment. See generally Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir. 1983); see Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
Defendant has moved for summary judgment on the basis that (1) Heard has not established a prima facie case of age discrimination, and (2) no jury could reasonably infer racial discrimination against Heard from the MRC's exercise of business judgment.
II. DISCUSSION
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), a motion for summary judgment will only be granted where "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Clarifying this terminology, the Supreme Court has noted that a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Moreover, a fact is "material" if it "might affect the outcome of the suit under governing law." Id.
It is important to emphasize that in opposing a motion for summary judgment, the non-moving party cannot rest on mere conjecture, but must proffer substantive evidence that would enable a reasonable juror to find in its favor. Anderson, 477 U.S. at 256; LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993). Thus, even in employment discrimination cases, "where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz, 896 F.2d at 8; LeBlanc, 6 F.3d at 841-42; Feliciano De La Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
B. The Legal Framework
Plaintiff's claims under 42 U.S.C. § 2000e and Mass. Gen. Laws ch. 151B are governed by the familiar burden-shifting framework delineated in McDonnell Douglas Corp. v. Green, as applicable to cases involving allegations of disparate treatment. McDonnell Douglas, 411 U.S. 792, 802-05 (1973); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 514-15 (1993) (refining theMcDonnell Douglas analysis); see also Terry v. Elec. Data Sys. Corp., 940 F. Supp. 378, 381 (D. Mass. 1996). While McDonnell Douglas involved a purported violation of 42 U.S.C. § 2000e, the Supreme Judicial Court of Massachusetts has adapted the three part test to employment discrimination claims arising under Mass. Gen. Laws ch. 151B. Wheelock Coll. v. Mass. Comm'n Against Discrimination, 371 Mass. 130, 135 (1976);see Abramian v. President and Fellows of Harvard Coll., 432 Mass. 107, 116-18 (2000) (applying the McDonnell Douglas paradigm).
The Supreme Court has identified two forms of employment discrimination: disparate treatment and disparate impact. The two theories of liability are distinguishable on the basis of discriminatory intent. Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977); Caron v. Scott Paper Co., 834 F. Supp. 33, 36 (D. Me. 1993). In disparate treatment cases, "the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Int'l Brotherhood, 431 U.S. at 335 n. 15;see, e.g., Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265-266 (1977). In contrast, disparate impact cases involve "employment practices that are facially neutral in their treatment of different groups but . . . in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory." Id.; see, e.g. Griggs v. Duke Power Co., 401 U.S. 424, 430-32 (1971).
Under the first phase of the McDonnell Douglas analysis, the plaintiff bears the burden of establishing a prima facie case of discrimination.McDonnell Douglas, 411 U.S. at 802; Terry 940 F. Supp. at 382 n. 3;Abramian, 432 Mass. at 116. As articulated by the Supreme Court, this obligation is "not onerous," but merely requires a plaintiff to make a showing as to four basic elements. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). For claims of race or age discrimination under 42 U.S.C. § 2000e and Mass. Gen. Laws ch. 151B, a plaintiff must demonstrate that (1) he is within a protected class; (2) he applied for and was qualified for the position that the employer was seeking to fill; (3) despite his qualifications he was rejected; and (4) after his rejection, the position was filled by a person of plaintiff's qualifications, not within the protected class. Rossy v. Roche Prods., 880 F.2d 621, 624 (1st Cir. 1989) citing McDonnell Douglas, 411 U.S. at 802; Abramian, 432 Mass. at 116; Panias v. Lynn Pub. Schools, 2003 WL 1955165, at *5 (D. Mass.). With respect to claims of age discrimination under Mass. Gen. Laws ch. 151B, in order to satisfy element (4), a plaintiff must demonstrate that the difference in age between plaintiff and the individual hired by the employer is no less five years. Knight v. Avon Prods., Inc., 438 Mass. 413, 424 (2003) (finding that an age disparity of less than five years is "too insignificant to support a prima facie case of age discrimination.");see also Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000) (articulating five year requirement in claims arising under Title VII.)
The required elements of the prima facie showing will necessarily vary depending on the facts of the case. McDonnell Douglas, 411 U.S. at 802 n. 13; Abramian, 432 Mass. at 116; see Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994) ("The prima facie case requirement embodies a concept, not a mechanical exercise. Though its contours generally follow the McDonnell Douglas model, a prima facie case must be custom-tailored to fit both the particular animus (e.g., age discrimination, sex discrimination, race discrimination) and the particular type of employment decision involved (e.g., failure to hire, failure to promote, failure to retain).")
If the plaintiff succeeds in making a prima facie showing of race or age discrimination, the onus shifts to the defendant to articulate a legitimate non-discriminatory reason why plaintiff suffered the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Panias 2003 WL 1955165, at *5. In order to meet this burden, "defendants need not persuade the court that they were actually motivated by the proffered reason. It is sufficient if their evidence raises a genuine issue of fact as to whether they purposely discriminated against the plaintiff." Keyes v. Sec'y of the Navy, 853 F.2d 1016, 1023 (1st Cir. 1998); Nunnally v. Dept. of Pub. Welfare, 1989 WL 47369, at *23 (D. Mass.). In other words, the defendant's burden is one of production, not persuasion. As noted by First Circuit, in rebutting plaintiff's prima facie case of discrimination, a defendant "need only produce enough competent evidence, taken as true, to enable a rational factfinder to conclude that there existed a nondiscriminatory reason for the challenged employment action." Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997).
Where the defendant has satisfied its burden of production, the presumption of discrimination afforded by the prima facie showing drops out, leaving the plaintiff with the burden of proffering evidence to establish that defendant's non-discriminatory justification is mere pretext, cloaking discriminatory animus. McDonnell Douglas, 411 U.S. at 804; Panias, 2003 WL 1955165, at *5. "[T]he burden on plaintiff at this point in the McDonnell Douglas analysis is heavy." Dow v. Donovan, 150 F. Supp.2d 249, 264 (D. Mass. 2001). Specifically, under part three of the McDonnell Douglas test, a plaintiff cannot simply deny the credibility of defendant's explanation, but must submit enough concrete evidence to support a reasonable juror's finding that he was indeed the victim of intentional discrimination. McDonnell Douglas, 411 U.S. at 804-05; Mesnick, 950 F.2d at 824; Feliciano, 218 F.3d at 6; Panias, 2003 WL 1955165, at *5. "[T]he plaintiff cannot avoid summary judgment if the record is devoid of adequate direct or circumstantial evidence of discriminatory intent."LeBlanc, 6 F.3d at 843; Panias, 2003 WL 1955165, at *5.
C. Application of McDonnell Douglas Framework
1. Prima Facie Showing
With respect to Heard's federal and state claims of race discrimination based on the alleged failure to fully entertain plaintiff's application for DC, defendant concedes that Heard has satisfied his initial burden under the McDonnell Douglas test. In particular, Heard has made a prima facie showing that (1) he is a member of a racial minority; (2) he applied and was qualified for the position of DC; (3) in spite of his qualifications, he was denied the position; and (4) the job was offered to and accepted by Ghiloni, a Caucasian applicant whose qualifications are parable to plaintiff's.
Regarding Heard's claim of age discrimination under Mass. Gen. Laws ch. 151B, defendant appears to concede that he has established a prima facie case as to criteria (1)-(3) of the four-part inquiry. With respect to element (4), defendant initially argued that based on Heard's complaint, it is not readily apparent that the age difference between Ghiloni and Heard is greater than five years, the differential necessary to make a prima facie showing. See Knight, 438 Mass. at 424. However, Heard by affidavit has specified his date of birth as June 15, 1948. It follows that he was approximately fifty-three years old at the time he was denied the position of DC. Since Ghiloni was forty-six years old when she assumed that position, the age disparity between plaintiff and Ghiloni is sufficient to support a prima facie case under criterion (4).
2. MRC's Justification
In an effort to satisfy its burden of production under part two of theMcDonnell Douglas framework, defendant argues that in denying Heard consideration for the desired DC position, it was merely exercising business judgment. Specifically, defendant contends that the employment opportunity was put on hold due to a 1.7 million dollar cutback in federal VR funds, the source from which the DC's salary, as initially posted, was to be drawn. After that position had remained on hold for upwards of one year, Ghiloni, a state-funded employee, proposed that she be promoted to DC without any reliance on federal funding. Because hiring Ghiloni would not require defendant to tap into the VR funds, it awarded her the promotion. Moreover, defendant contends that Ghiloni could be promoted without replacement from her pre-existing state funded position, with no more than an upgrade in salary. In contrast, if the MRC had hired Heard or another federally-funded employee, it would have had to draw an additional full salary out of state funds. In post-hearing submissions, the defendant has responded to plaintiff's argument of administrative irregularity, pressed at the motion hearing, by arguing that the process of promoting Ghiloni from within was consistent with the state's personnel policies.
Defendant's stated rationale is supported by "competent evidence" in the form of an affidavits from Richard F. Arcangeli, General Counsel for the MRC. Ruiz, 124 F.3d at 248. Arcangeli's first sworn statement corroborates the various elements of defendant's explanation, substantiating the claim that defendant's appointment of Ghiloni over Heard was a function of business judgment, not discriminatory animus, and that the process was an accepted one for internal transfer and promotion within the state-funded portion of the agency. As recognized by the First Circuit in Smith v. F.W. Morse and Co., Inc.,
There is little doubt that an employer, consistent with its business judgment, may eliminate positions during the course of a downsizing without violating Title VII even though those positions are held by members of protected groups . . . This is merely a reflection of a central theme that permeates the relevant jurisprudence:
insofar as Title VII is concerned, an employer can hire or fire one employee instead of another for any reason, fair or unfair, provided that the employer's choice is not driven by race, gender, pregnancy, or some other protected characteristic.Smith, 76 F.3d 413, 422 (1st Cir. 1996); Weston-Smith v. Cooley Dickinson Hosp., 153 F. Supp.2d 62, 71 (D. Mass. 2001). Thus, in offering a legitimate, non-discriminatory reason for denying Heard the employment opportunity, and substantiating the proffered justification with admissible evidence, defendant has easily met its burden of production under part two of the McDonnell Douglas test.
3. Pretext
Because defendant has "cleared the modest hurdle" of articulating a non-discriminatory motive for its adverse employment action, the burden is shifted back to Heard to introduce evidence that would allow a reasonable juror to find that defendant's justification is mere pretext masking intentional discrimination. Smith, 76 F.3d at 421; Feliciano, 218 F.3d at 6.
It is significant to mention that there is no single prescribed method through which a plaintiff may demonstrate pretext. See Mesnick, 950 F.2d at 824 ("[t]here are many veins of circumstantial evidence that may be mined by a plaintiff to this end.") In McDonnell Douglas, the Supreme Court alluded to several different kinds of evidence that a plaintiff might introduce in an effort to satisfy his burden, including facts as to the defendant's treatment of the plaintiff during his prior term of employment. McDonnell Douglas, 411 U.S. at 804. Moreover, the First Circuit has stated that a plaintiff could endeavor to "show that discriminatory comments were made by the key decisionmaker or those in a position to influence." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000). In cases involving discrimination charges arising out of an employer's dismissal of an employee, the United States District Court for the District of Massachusetts has highlighted that "the favored and most probative means of proving pretextual discharge is to demonstrate that similarly situated white employees were treated differently." Williams v. Frank, 757 F. Supp. 112, 118 (D. Mass. 1991); McDonnell Douglas, 411 U.S. at 804.
Given the fact that Heard was not the sole victim of the contested adverse employment action, but one of forty people denied consideration for the position of DC, any allegation that defendant's justification was a guise for intentional discrimination against him is problematic. "It is boilerplate, in disparate treatment cases, that the absence of any showing that the plaintiff was treated differently from similarly situated employees requires a finding for the defendant" in a motion for summary judgment.Thomas v. Digital Equip. Corp., 702 F. Supp. 22, 25 (D. Mass. 1988),aff'd, 880 F.2d 1486 (1st Cir. 1989); Lawton v. State Mut. Life Assurance Co. of Am., 924 F. Supp. 331, 342 (D. Mass. 1996); Williams v. Frank, 757 F. Supp. at 118. Nevertheless, I will proceed to evaluate Heard's proffered evidence in support of the charge that defendant's reason was pretextual, masking intentional discrimination.
Heard does not propose that all of the applicants denied consideration were more than five years older than Ghiloni or members of minorities.
(i) Age Discrimination
With respect to the claim of age discrimination under Mass. Gen. Laws ch. 151B, Heard has proffered little competent evidence to substantiate his contention that defendant's explanation was pretext for discrimination based on age. In an effort to satisfy his burden at this stage of the McDonnell Douglas analysis, Heard states in his affidavit that he "believes" he was equally or better qualified than Ghiloni for the position of DC. Specifically, he asserts that Ghiloni occupied a lower grade than he and had less experience and seniority at the MRC. In evaluating the probative weight of these statements, I note at the outset that even if Heard was higher in grade than Ghiloni, with more seniority and experience working for the MRC, it does not automatically follow that he was better qualified for the position of DC. Indeed, while Heard proffers evidence respecting his education and employment history, he adduces no evidence regarding Ghiloni's credentials beyond her employment at MRC. Compare Weber v. Cmty. Teamwork, Inc., 1998 WL 1181785, at *3-6 (Mass.Super. June 25, 1998) (examining qualifications in terms of education and full employment history). In addition, he offers no other evidence to substantiate the argument that he was better qualified for the job than Ghiloni, rather he rests his argument solely on his own subjective opinion.
Moreover, even assuming arguendo that Heard was better qualified than Ghiloni, the First Circuit has emphasized that "courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employer's nondiscriminatory business decisions."Mesnick, 950 F.2d at 825; see Furnco Construct. Corp. v. Waters, 438 U.S. 567, 578 (1978); Feliciano, 218 F.3d at 8 (even where a rational trier of fact could infer that the defendant's adverse employment action was "unfair, . . . that proof is not sufficient to state a claim under\Title VII."); Loeb v. Textron, 600 F.2d 1003, 1012 n. 6 (1st Cir. 1979). Accordingly, evidence that Heard may have had somewhat better qualifications than Ghiloni has minimal probative value as to plaintiff's claim of age discrimination.
Though the First Circuit has recognized that "there is no mechanical formula" for determining whether a plaintiff has satisfied his obligation under prong three of McDonnell Douglas, Thomas v. Eastman Kodak Co., 183 F.3d 38, 57 (1st Cir. 1999), the question is ultimately "of the sufficiency of the plaintiff's evidence." Panias, 2003 WL 1955165, at *7. Because Heard has adduced no evidence to substantiate his claim beyond his sworn statement respecting his qualifications as compared to Ghiloni's, he has failed to shoulder his burden of proof. As a result, defendant is entitled to judgment as a matter of law as to plaintiff's claim of employment discrimination based on age. See Panias, 2003 WL 1955165, at *5; LeBlanc, 6 F.3d at 843.
(ii) Race Discrimination
a. Plaintiff's Qualifications v. Ghiloni's Qualifications As discussed above in the context of plaintiff's charge of age discrimination, plaintiff's sworn statement that he "believes" his qualifications were superior to those of Ghiloni carries little probative weight. This piece of proffered "evidence" is in itself insufficient to satisfy plaintiff's burden under step three of the McDonnell Douglas test as to plaintiff's claims of discrimination based on race.
b. Statistical Evidence In further effort to demonstrate that defendant's justification for the adverse employment action is mere pretext for intentional racial discrimination, plaintiff has made reference to the fact that there are no minority DCs at MRC. While defendant does not contest this statistical information, the First Circuit has stressed that
statistical evidence in a disparate treatment case, in and of itself, rarely suffices to rebut an employer's legitimate, nondiscriminatory rationale for its decision. This is because a company's overall employment statistics will, in at least many cases, have little direct bearing on the specific intentions of the employer . . . 'Without an indication of a connection between the statistics,' the practices of the employer, and the employee's case, statistics alone are likely to be inadequate.LeBlanc, 6 F.3d at 848 citing Gadson v. Concord Hosp., 966 F.2d 32, 35 (1st Cir. 1992); Soto v. Runyon, 13 F. Supp.2d 215, 223 (D. P.R. 1998);see also Lawton, 924 F. Supp. at 341 ("in an action for disparate treatment, as opposed to one for disparate impact, statistical data is of little probative value and may be inadmissible."); Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 184 n. 3 (questioning how statistical data tending to demonstrate a low percentage of blacks and females in upper — level positions is admissible in a case alleging disparate treatment: "We note that plaintiff brought the present suit not on a disparate impact theory, or as a class action, but in respect to what she envisioned to be disparate treatment. Thus, it is difficult to visualize how the data would have been admissible in this case"). In view of the fact that there has been only one DC, it difficult here to see how "statistical" evidence has any meaningful relevant to the plaintiff's case.
Moreover, in offering a discrete statistic, Heard adduces no evidence of the percentage of the minority members, if any, who sought a DC position and were rejected. See Mack, 871 F.2d at 184. Additionally, he provides no testimony regarding the qualifications of minority members who have been denied these employment opportunities as compared to the capabilities of those who were ultimately hired. See Soto, 13 F. Supp.2d at 223 ("The flaws in plaintiff's proffer of these statistics are evident, the primary one being that without information about the qualifications of the applicants, the Court has no way of knowing whether these statistics suggest that men were discriminated against.") Finally, Heard adduces no other analyses as to the significance of the statistic or the inferences which might appropriately be drawn from it respecting his personal claim of discrimination. Mack, 871 F.2d at 184. His "naked numbers, standing unadorned and unexplained [lack] sufficient convictive force to derail [defendant's] summary judgment initiative." Id.
c. Past Discrimination: Plaintiff's Secondary Claim
In addition to proffering statistical evidence, plaintiff highlights a past incident of alleged racial discrimination in an effort to demonstrate that defendant's justification is a mere guise masking discriminatory animus. Specifically, plaintiff asserts that prior to denying him the opportunity to compete for the position of DC, defendant failed to reclassify and promote him at the same time as his two non — minority ADC counterparts, an incident of disparate treatment that in itself constitutes racial discrimination. Operating on the working assumption that plaintiff intended this allegation not only as supportive of his DC failure to consider claim but also as an independent, secondary claim, I apply the McDonnell Douglas framework to determine whether the charge survives defendant's motion for summary judgment.
With respect to the first phase of the three part McDonnell Douglas test, defendant appears to concede that Heard has shouldered his initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at 802. Specifically, he has demonstrated that (1) he is a member of a racial minority; (2) he possessed the qualifications necessary for promotion; (3) in spite of his qualifications, he was initially denied the promotion; and (4) defendant reclassified one or two similarly situated employees not within the protected class before affording plaintiff a promotion. See Soto, 13 F. Supp.2d at 219 (adapting the prima facie components to a employment discrimination case involving an employer's failure to promote an employee); Rossy, 880 F.2d at 624.
As a means of satisfying its burden of production pursuant to the second part of the McDonnell Douglas test, defendant has suggested that its failure to promote plaintiff at the same time as other ADCs was a function of mere negligence on the part of the state Human Resources Department in processing the MRC's request. Defendant's justification for the adverse employment action is substantiated by Arcangeli's affidavit, in which the MRC General Counsel notes that
[i]n 1997, the MRC wrote to James Hartnett, Jr., the Personnel Administrator of the state Human Resources Department, requesting that the grade level of all three Assistant Deputy Commissioners, including Heard, be reclassified to M-VII. When only one of the three was reclassified, the MRC protested with the eventual result that all three Assistant Deputy Commissioners were upgraded retroactive to January 11, 1998.
In responding to plaintiff's argument at the motion hearing that disparities in both the timing and compensation for the retroactive upgrade suggested discriminatory animus, the defendant has made post-hearing submissions demonstrating that the reclassification and promotional salary increments for the three ADCs were consistent with the prescribed schedule and that they were retroactive to the same date for the three ADCs.
Accordingly, because defendant has offered a legitimate, non-discriminatory reason for the manner in which the reclassification and promotion were executed, Ruiz, 124 F.3d at 248, the presumption of discrimination afforded by the prima facie case "drops out of the picture" and the onus shifts back to Heard. Hicks, 509 U.S. at 511.
Under the third and final phase of the McDonnell Douglas framework, Heard adduces no additional evidence beyond that establishing his prima facie case to buttress the contention that defendant's proffered explanation is merely a cover-up, cloaking intentional discrimination. Instead, he rests his claim upon conclusory rhetoric, asserting for instance in his brief that MRC's effort to compensate for the disparate treatment "does not vitiate the initial discrimination, but only serves to demonstrate the discriminatory animus that caused Mr. Heard to be treated unequally in the first place." Given the paucity of evidence substantiating such blanket assertions, "submitting the issue of discriminatory intent to a jury on this record would amount to nothing more than an invitation to speculate." Lattimore v. Polaroid Corp., 99 F.3d 456, 467-68 (1st Cir. 1996). As a consequence, I must necessarily grant defendant's motion for summary judgment. Id.; see Rathbun v. Autozone, Inc., 253 F. Supp.2d 226, 235 (D. R.I. 2003) (finding plaintiff's effort to satisfy her burden under part three of the McDonnell Douglas test "inadequate where she failed to introduce any new evidence — beyond that adduced in her prima facie showing — to rebut defendant's justification for the adverse employment action.)
Treated separately or together, neither Heard's secondary claim of past racial discrimination nor his primary charge respecting defendant's failure to entertain his application for DC, provides a basis for establishing a history of disparate treatment based on race sufficient to survive a motion for summary judgment. Heard has not adduced competent evidence of pretext for discriminatory animus to sustain his burden of proof under phase three of McDonnell Douglas as to his claim of racial discrimination.
III. CONCLUSION
For the reasons set forth more fully above, I hereby GRANT defendant's motion for summary judgment on plaintiff's claims of employment discrimination based on age and race.