USCA1 Opinion

March 8, 1996

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1556

KATHY SMITH,

Plaintiff, Appellant,

v.

F.W. MORSE & CO., INC.,

Defendant, Appellee.

_________________________

ERRATA SHEET
ERRATA SHEET

The

opinion of this court

issued on February

12, 1996, is

corrected as follows:

On

page 21,

1996)"

line 15,

change "(1st

Cir. 1995)"

to

"(1st Cir.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 95-1556

KATHY SMITH,

Plaintiff, Appellant,

v.

F.W. MORSE & CO., INC.,

Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Norman H. Stahl, U.S. District Judge]

___________________
[Hon. Steven J. McAuliffe, U.S. District Judge]
___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_________________________

Debra Weiss Ford,

__________________
Koehler,
_______

and

with whom

Edmond J. Ford, Eileen L.

________________ __________

Ford, Ford & Weaver, P.A.

____________________________

were

on brief,

for

appellant.

Raymond P. Blanchard, with whom Taylor, Keane & Blanchard,

_____________________
___________________________
P.A. was on brief, for appellee.
____

_________________________

February 12, 1996

_________________________

SELYA,
SELYA,

invites

us to

under Title

Circuit Judge.
Circuit Judge.
_____________

overrule

VII of the

2000e-2000e-17 (1988)

law

causes

discharge.

I.
I.

of

action

In this

the district

for

breach

plaintiff

court's adverse

Civil Rights Act

(Title VII),

appeal, the

of 1964, 42

and to reinstate

of

contract

decision

U.S.C.

her common

and

We decline the invitation in all its aspects.

BACKGROUND
BACKGROUND

wrongful

We

chronicle the

events that

preceded the

filing of

suit and then recount what transpired thereafter.

A.
A.

Chronology of Events.
Chronology of Events.
____________________

Damar

Plastics

operated

a job

shop

crafted

custom

&

Metal

Fabricators,

in Somersworth,

components

for

New

Inc.

(Damar)

Hampshire, where

high-technology

it

applications.

Plaintiff-appellant Kathy Smith joined Damar in 1976 and advanced

steadily through

production

the ranks

manager

almost a

Smith scheduled production

In late

owner

1987, after an

and

reassignment

until she

reached

decade later.

the position

In

that capacity,

runs and coordinated delivery

imbroglio with Darrol

general

manager),

to a

different post

she

dates.

Robinson (Damar's

requested

having no

of

and

obtained

responsibility for

production scheduling.

On December

Co., Inc. (Morse), a

business

and assets.

23, 1988, defendant-appellee F.W.

firm owned by Chris Bond,

acquired Damar's

Damar then had fewer than forty employees,

including seven managers reporting directly to Robinson:

Hickman

(production

Morse &

control);

Robert

Lane

Michael

(shipping); Ronald

Paradis (production/machining);

Marc Shevenell (production/sheet

metal); Gary Bickford (engineering);

Smith.

Though

considered

to

Hickman's

not

be a

titled,

Smith

de facto

inadequacies,

Michael Seeger (sales); and

testified

manager

that

who, largely

performed many

of

the

she

was

because of

duties of

the

production control manager.

Bond promptly concluded that

and

too few

Hickman.

manager

Lane.

Within

days of

the

closing, he

fired

Then, in concert with Maryann Guimond, the new general

(who

personnel),

Smith.

Indians.

Damar had too many chiefs

had

he

authority

interviewed

In the aftermath

To

fill

the void

to

hire,

number

fire,

of employees,

of this review,

created

and

by the

discipline

including

the company cashiered

two

executive-level

departures, Morse promoted Smith to the newly created position of

materials manager, consolidating responsibilities for scheduling,

production

control, inventory control, purchasing, shipping, and

receiving that had previously been spread among three managers.

All

substituted

Guimond

management

from

reconfigured

Shevenell

and

Smith

told,

Morse's

for

Robinson

seven to

management

initial

five.

team

reorganization

and

In

pared

addition to

comprised

Paradis

efforts

second-echelon

Guimond, the

(machining);

(sheet metal); Bickford (engineering); Seeger (sales);

(materials).

responsibilities, Morse

again in March),

In

recognition

increased

twice hiked her pay (once in January and

thus increasing her

twenty-five percent.

of Smith's

weekly stipend by

roughly

At about the time of the takeover, Smith informed

that

she had become pregnant

Morse,

a tiny

company,

and would need

had no

Bond

a maternity leave.

formal maternity

leave policy.

Bond nonetheless honored Smith's request and assured her that her

position

several

was "secure."

meetings

In preparation for her leave, Smith held

with Guimond,

Shevenell,

and

Paradis.

The

company temporarily distributed her managerial duties among other

supervisors

and

Gilday,

perform her

to

Guimond informed

arranged

be discharged,

again

upon

indicated that,

and Smith

While

would

these

newly-hired

clerical

functions.

Smith that

would

her

for a

in all

from

her that

maternity

to assume

presumably

she would

leave.

a portion

would

Kelly

the

way,

Shevenell likely

be promoted

Guimond

probability, Bickford would

be asked

changes

Along

either Paradis or

and told

return

secretary,

also

be demoted,

of his

warrant

duties.

increased

remuneration, Guimond did not mention an amount.

On

planning to

April 7,

Smith began

her maternity

return to work in approximately six weeks.

birth two weeks later.

fall," held

1989,

leave,

She gave

Meanwhile, Guimond, expecting the "sky to

regular "reality check" meetings

with Shevenell and

Paradis.

To

her

surprise, the

plant

functioned very

well.1

Guimond reported the good news to Bond.

Smith visited the plant on

that

she

wished

to

return

to

May 1 and informed

work

one

week

Guimond

earlier

than

____________________

1During

this same

time frame,

engineering manager's position.

the company

eliminated the

However, Bickford remained

Morse in a lesser capacity.

with

originally

desired

anticipated.

more children,

Guimond inquired

and

Smith replied

following day, Guimond queried

co-worker,

about whether

Smith

affirmatively.

The

Karen Vendasi, Smith's sister and

about Smith's plans to have a larger family.

Vendasi

relayed this conversation to Smith and told her of nascent rumors

to the effect that she might not return to work.

Guimond

and

knowledge

again

demanded

an

explanation.

Smith contacted

Guimond

denied

any

of the rumors, dismissed them as idle buzznacking, and

assured Smith that her

job was secure.

Guimond repeated

these assurances during a chance meeting on May 4.

A few days later,

manager's position

Guimond concluded that the materials

was superfluous and decided

She told Smith of her decision on May 11.

to eliminate it.

During this telephone

conversation, Guimond asked Smith if

told that she

had decided to stay at home

rather than that

suggestion.

she preferred people to

she had

with her infant child

been discharged.

Nevertheless, a

be

Smith rejected

the

Morse employee repeated this canard

to several customers.2

Following Smith's

duties

to Paradis

in his

severance, Guimond gave

new capacity

most of her

as operations

manager.

Shevenell assumed the role of manufacturing manager (in charge of

both

machining and sheet metal work).

lower-ranking

assistant

employees, Peter

manager

Guimond also promoted two

Lapanne

positions (though

and

Brian Hoffman,

evidence adduced

to

at trial

____________________

2The company

reprimanded the employee

and trial

testimony

tended to establish that Morse had not authorized the comments.

demonstrated that Lapanne

back

as

1984,

and

had been an

that

responsibilities or received

with

his new title).

functions

of the

man

any salary

Smith's

any

far

new

connection

perform the clerical

former position.

reorganization wound

three second-echelon managers

assumed

increase in

Gilday continued to

associated with

second round

neither

assistant manager as

down,

When

the

the plant

had

Paradis (operations);

Shevenell

(manufacturing); and

Seeger (sales)

in lieu

of the

original

seven.

B.
B.

Smith

alleging,

sued

inter
_____

Procedural History.
Procedural History.
__________________

Morse

alia,
____

in

New

wrongful

Hampshire

discharge

state

court

on

gender

based

discrimination, intentional infliction of emotional distress, and

breach of contract.

court on the ground

Morse removed the case to

that Smith's claim "arose under"

thus prompting federal question

1331,

1343(c)(3),

(conferring

claims).

federal district

1441,

ancillary

1446;

jurisdiction.

see
___

jurisdiction

also
____

over

Smith thereafter filed an amended

Title VII,

See 28
___

28

U.S.C.

U.S.C.

appended

1367

nonfederal

complaint that made

her Title VII claim explicit.

Early

summary judgment.

motion

on

the

distress claims.

in the

The

common

See
___

proceedings,

Morse

district court

law

wrongful

moved

for

partial

(Stahl, J.) granted

discharge

the

and

emotional

Smith v. F.W. Morse & Co., No.

_____
_________________

90-361-S,

slip op. at 12 (D.N.H. Sept. 26, 1991) (unpublished) (Smith I).

_______

Several

years later, the

parties simultaneously tried

the Title VII

of contract

claim to the bench (McAuliffe,

claim to a jury.3

At the close

case, the district court entered

the

defendant's

disbanded

favor on

the jury.

district judge.

manager's

Title VII

and laid

strategy

to

of the plaintiff's

judgment as a matter of law

breach

Morse asserted

position

overarching

The

the

J.) and the breach

of

contract

case proceeded

that it scrapped

off the

streamline

appellant

claim

in

and

before the

the materials

as part

top-heavy

of an

managerial

structure, and that even if Smith had not been on maternity leave

she would have been flattened by the downsizing steamroller.

The

district

court agreed

See
___

Smith v.

F.W. Morse

and

& Co.,

entered judgment

901 F. Supp.

accordingly.

40, 45

(D.N.H. 1995)

_____

_________________

(Smith II).
________

II.
II.

This appeal ensued.

THE TITLE VII CLAIM

THE TITLE VII CLAIM

The crown jewel of the appellant's asseverational array

is her contention that

Morse

the district court erred in

did not discriminate against her

finding that

on the basis of her sex.

Our appraisal of this contention is in three parts.

A.
A.

Following a

Standard of Review.
Standard of Review.
__________________

bench trial, the court

of appeals reviews

____________________

3The Civil Rights

Act of 1991, Pub. L. 102-166,

Stat. 1071, 1073

(1991) (codified at

authorizes trial

by jury in

that

form the basis of

the effective date of

trial on her

42 U.S.C.

102, 105

1981a(c)(1)),

Title VII cases.

Since the events

the appellant's claim

occurred prior to

the 1991 Act, she

Title VII claim.

had no right to

See Landgraf

a jury

v. USI Film Prods.,

___ ________
Inc., 114
____

S. Ct. 1483, 1487 (1994) (holding that the 1991 Act is

not retroactive).
for proof

________________

By like token,

of "mixed-motive"

Part II(B), infra, is

_____

the Price Waterhouse framework

________________

discrimination that we

somewhat changed under the 1991

describe in
Act.

See
___

Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995).

______
______

the trier's factual determinations

v. Banco Santander P.R.,

____________________

for clear error, see Cumpiano

___ ________

902 F.2d 148, 152 (1st Cir. 1990); Fed.

R.

Civ.

P. 52(a),

formulation

of

Regulator Co.,
______________

but affords

applicable legal

63

F.3d

1129,

jurisprudence of clear error

issues anew.

466

(1st

Cir.), cert.
_____

we may

rules,

1132

review to

see
___

(1st

the trier's

Johnson v.
_______

Cir.

1995).

Watts
_____

The

constrains us from deciding factual

See, e.g., Jackson v. Harvard Univ., 900 F.2d 464,

___ ____ _______
_____________

Secretary of the Navy,

_______________________

Indeed,

plenary

denied, 498
______

853 F.2d

not disturb

U.S.

1016,

the district

848 (1990);

1019 (1st

Keyes v.
_____

Cir. 1988).

court's record-rooted

findings of fact unless on the whole of the evidence we reach the

irresistible conclusion

Cumpiano,
________

that

902 F.2d at 152;

mistake

has been

made.

See
___

RCI Northeast Servs. Div. v. Boston

__________________________
______

Edison Co., 822 F.2d 199, 203 (1st Cir. 1987).

__________

findings

This deferential

standard extends not only

simpliciter

also

underlying facts.

but

See Cumpiano,
___ ________

findings regarding an actor's

of

to inferences

902 F.2d at

drawn

152.

to factual

from

Similarly,

motivation fall within the shelter

Rule 52(a), and, therefore,

if the trial

court's reading of

the record on such an issue is plausible, appellate review

an end.

See Foster v.
___ ______

the

is at

Dalton,71 F.3d 52, 56-57 (1st Cir. 1995);

______

Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991).

_______
_______

B.
B.

Title VII

employment practice

The Jurisprudence of Title VII.

The Jurisprudence of Title VII.
______________________________

provides, inter alia, that it is an unlawful

_____ ____

for an

employer to discharge

an individual

because of

her sex.

See
___

42 U.S.C.

2000e-2(a)(1).

After the

Supreme

Court

held

discrimination on the

that

this phraseology

basis of pregnancy, see

___

did

not

proscribe

General Elec. Co.

_________________

v. Gilbert, 429 U.S. 125, 145-46 (1976), Congress augmented Title

_______

VII

by enacting the Pregnancy

Pub. L. 95-555,

1,

Discrimination Act of 1978 (PDA),

92 Stat. 2076, 2076 (1978) (codified

at 42

U.S.C.

2000e(k)).

The PDA made clear that:

The terms

"because of sex" or

of sex"

include,

because

of or

childbirth,

but are

on

or

the

"on the basis

not

basis of

related medical

limited

to,

pregnancy,
conditions;

and women affected by

pregnancy, childbirth,

or

conditions

related

medical

treated the same

for all

shall

be

employment-related

purposes, including receipt of benefits under

fringe benefit programs, as other persons not
so affected

but similar in their

ability or

inability to work.

42

U.S.C.

company,

2000e(k).

Thus, at

Title VII's

ban on

the time Smith and Morse parted

gender

discrimination encompassed

pregnancy-based discrimination.

Like other

Title VII plaintiffs, an

employee claiming

discrimination on the basis of pregnancy may proceed under either

disparate

treatment

or

disparate

impact

theory.

See
___

generally Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579_________ ____________________
______

80

(1978)

(explaining

the

alleged disparate treatment.

dichotomy).

Here,

the

appellant

Consequently, she had the burden of

proving that the defendant purposefully terminated her employment

because of her pregnancy.

In cases

supra
_____

note

discrimination

3,

predating the Civil

the

framework

varies depending

on

10

for

Rights Act of

proving

the availability

1991, see
___

intentional

of direct

evidence.

Cir.

See Fields
___ ______

v. Clark Univ.,
___________

1992), cert. denied, 113

_____ ______

F.2d at 153.

Absent

966 F.2d 49,

S. Ct. 976

51-52 (1st

(1993); Cumpiano, 902

________

the evidentiary equivalent

of a

"smoking

gun," the plaintiff must attempt to prove her case by resort to a

burden-shifting framework.

v. Burdine,
_______

See
___

Texas Dep't of Community Affairs

________________________________

450 U.S. 248, 254-56 (1981); McDonnell Douglas Corp.

_______________________

v. Green,
_____

411 U.S.

plaintiff

can

discrimination

792, 802

establish

by

(1973).

prima

showing that

(1)

Under

facie

she

this framework,

case

of

is pregnant

pregnancy

(or

has

indicated

performance

nonetheless

an

intention

has

been

to

become

pregnant),

satisfactory,

but

dismissed her from her position

adverse employment

action against

(3)

(2)

her

the

employer

(or took some other

her) while (4)

continuing to

have her duties performed by a comparably qualified person.

e.g., Cumpiano, 902 F.2d

____ ________

job

See,
___

at 153; Lipsett v. University of P.R.,

_______
___________________

864 F.2d 881, 899 (1st Cir.

1988).

Establishing the prima facie

case raises a rebuttable presumption

that discrimination sparked

the adverse employment action, see Cumpiano, 902 F.2d at 153, and
___ ________

imposes upon the employer

a burden to put forward

nondiscriminatory motive for

at 254-55;

Lipsett, 864
_______

this modest hurdle, the

the action.

F.2d at 899.

a legitimate,

See
___

Burdine, 450 U.S.

_______

If the

defendant clears

presumption of discrimination vaporizes,

see
___

Mesnick v. General Elec. Co., 950

_______
__________________

1991), cert.
_____

denied, 504
______

U.S. 985

F.2d 816, 823

(1992),4

and the

(1st Cir.

plaintiff

____________________

4Mesnick
Employment
Title VII.

is a case brought under

Act (ADEA), 29

U.S.C.

the Age Discrimination in

621-634,

The same burden-shifting

rather than under

framework applies in

both

11

(who

retains the ultimate burden

of persuasion on

the issue of

discriminatory

employer's

motive

proffered

discrimination,

throughout)

must

justification

then

is

prove

that

pretext

see St. Mary's Honor Ctr. v. Hicks,

___ ______________________
_____

the

for

113 S. Ct.

2742, 2749 (1993); Mesnick, 950 F.2d at 823-24.

_______

On the

discernible

that

relatively rare occasions when a smoking gun is

that is, when a

plaintiff produces direct evidence

the protected characteristic was a motivating factor in the

employment

action

inapposite.

See Fields, 966 F.2d at 52.

___ ______

evidence

the

of discriminatory

employer that it explicitly

McDonnell
Douglas
___________________

motive

In

framework

is

those cases, direct

say, an

admission by

the

took actual or anticipated pregnancy

into account in reaching an employment decision

serves to shift

the burden of persuasion

must

from employee to employer.

then affirmatively prove that

decision even if

into account.

it had not

it would have

taken the protected

The latter

made the same

characteristic

See Price Waterhouse v. Hopkins, 490 U.S. 228, 258

___ ________________
_______

(1989) (plurality op.); id. at 265-67 (O'Connor, J., concurring).

___

The seeming

certain

respects,

neatness of this dichotomy

for

evidence

geometrically precise packages.

McDonnell Douglas, on
_________________

other

hand, is

In

comes

In many cases, the

one hand,

blurred.

rarely

and

is illusory in

in

line between

Price Waterhouse, on
_________________

those situations,

tidy,

the

classification

____________________

instances; therefore, ADEA cases have solid precedential value in

Title

VII litigation.

Title VII

and ADEA

Hence, we

cite herein interchangeably to

cases, often without

distinguishing between

them.

12

depends on

court

both the

deems

quantity and quality

sufficient

to

constitute

of the

proof that

direct

evidence

of

discriminatory animus.

Discretion is

courts

often wisely

questions

if answers

sometimes the better part

decide

to them

of valor, and

to sidestep

difficult

theoretical

are not

essential to

the proper

resolution of a given case.

prudential approach.

differential

direct

We have here a good example

The

trial

evidence

presented,

Morse

had

proven

While we

process

that

framework to a definite

of

gender

See Smith II, 901

___ ________

This approach negates any need for

the question of an analytic

tamisage,

finding that, on the totality

discrimination did not trigger the firing.

Supp. at 44-45.

bypassed any

evidence/circumstantial evidence

preferring to go directly to a

the

court largely

of such

F.

us to pursue

conclusion.

agree with our concurring colleague that the decisional

is

important,

there comes

point

at which

slavish

insistence upon process for its own sake serves only to exalt the

trappings

of justice

over its

court's finding on causation,

substance.

Here, the

district

if sustainable, resolves the Title

VII claim whether

the

the appellant's prima facie

case arises under

McDonnell Douglas or Price Waterhouse paradigm.

_________________
_________________

illustrate

below, see
___

infra
_____

Part III(C),

And as we

that finding

passes

muster.

C.
C.

Consistent

The Merits.
The Merits.
__________

with the

must be assumed to have

district court's

approach, Morse

had the burden of proving that

13

it would

have taken the

same action

manager's

position

pregnant,

took

children.

decision was

this

maternity

the fewest number

not

leave,

found that

pivotal issue.

by placing the

the

or

"that

if

became

to bear

Morse

carried the

It

concluded that

devoir of

Morse's

most qualified personnel

Guimond

more

and represented an

in

was not

her expressed desire

Smith II, 901 F. Supp. at 44.

________

even

materials

appellant

planned

plaintiff's gender, pregnancy, or

concluded

of the

of managerial positions possible, and

to have more children."

also

or

"motivated by business judgment

effort to economize

based on

whether

The court

persuasion on

the elimination

is

assumed

The court

to

have

considered impermissible gender-based

to

factors, the same decision

eliminate plaintiff's position would

the same

still have been made at

time" for reasons of business necessity.

Id.
___

The crux

of our inquiry is whether these findings are clearly erroneous.

There is little doubt that an employer, consistent with

its business judgment, may

of a

downsizing without

eliminate positions during the course

violating Title

VII even

though those

positions are held by members of protected groups (pregnant women

included).

See, e.g., LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,

___ ____ _______
__________________

844-45 (1st Cir.

1993), cert.
_____

Goldman v. First Nat'l Bank,

_______
_________________

1993);

denied, 114 S.
______

985 F.2d 1113,

Ct. 1398

1118-19 (1st

Montana v. First Fed. Sav. & Loan Ass'n, 869

_______
______________________________

105, 107 (2d Cir.

(1994);

1989); Dister v. Continental Group,

Cir.

F.2d 100,

Inc., 859

______

F.2d

Hosp.,
_____

________________________

1108, 1115 (2d Cir. 1988); Pearlstein v Staten Island Univ.

__________
___________________

886 F. Supp. 260, 268-69 (E.D.N.Y. 1995).

This is merely

14

reflection

jurisprudence:

of a

central

theme that

insofar as Title

permeates

VII is concerned,

can hire or fire one employee instead of

the relevant

an employer

another for any reason,

fair or unfair, provided that the employer's choice is not driven

by

race,

gender,

characteristic.

pregnancy,

See Foster, 71
___ ______

or

some

other

F.3d at 56; Keyes,

_____

protected

853 F.2d at

1026; see
___

also Freeman v. Package Mach. Co., 865 F.2d 1331, 1341

____ _______
_________________

(1st Cir.

1988) (elucidating similar proposition

The flip

side of

the

coin, however,

is that

in ADEA case).

an employer

who

selectively cleans house cannot hide behind convenient euphemisms

such as "downsizing" or "streamlining."

the fat

from

practice in

company's

a particular

Whether or not trimming

organizational chart

business

is

environment, the

prudent

employer's

decision to eliminate specific positions must not be tainted by a

discriminatory

Maresco v. Evans

animus.

See Goldman,
___ _______

Chemetics, 964

985

F.2d

F.2d 106, 111

at

1118 n.4;

(2d Cir.

1992);

_______

________________

Mesnick, 950 F.2d at 825; Pearlstein, 886 F. Supp. at 268-69.

_______
__________

Against this

backdrop,

we believe

that the

adequately supports the trial court's findings.

evidence

When Morse

took

over, Damar had an inordinately high ratio of managers to workers

and the

managers' responsibilities

Guimond testified

Damar's

reason.

that from

sprawling

the very

organizational

Accordingly,

they

overlapped.5

Bond and

start they believed

structure

set out

Both

to

that

defied

rhyme

or

compress some

of

the

the responsibility

for

____________________

5To

cite an

manufacturing

example,

between two

Damar split
managers

(Shevenell and

Paradis), a

situation that, in appellant's own phrase, caused daily "chaos."

15

sprawl.

The district court credited their intention, noting that

the witnesses' actions

the point,

"because

filled."

too, had

matched their stated objective.

Guimond testified

I had

that she terminated

a position that

Bond testified in

I no

longer felt

the same vein,

become convinced that Smith's

the appellant

needed to be

indicating that he,

position was expendable.

The court

accepted this evidence, concluding

manager's

position would

have been

More to

that the materials

eliminated within

the same

time frame whether or not Smith had taken a maternity leave.

In our view, this determination,

is supportable.

while not inevitable,

In the first place, the record strongly suggests

that, in fact, the position was expendable.

any other

choice

would

have entailed

expertise that Damar could ill afford.6

court's

view is

bolstered by

originally received from

apprised

her

significant

of

the

new

loss

In

of

planned

ownership.

when

and

Guimond

assigned

her

other

managers

were

and

increased

her

dismissed.

They

compensation.

These actions, undertaken with full knowledge that

the

appellant

maternity leave,

was

pregnant

promoted

the appellant

Bond and

downsizing

responsibilities

engineering

the third place, the

the reception that

the new

also

In the second place,

and

are inconsistent

her

would

be

with a bias

taking a

six-week

against pregnant

____________________

6Bond

testified

engineering talents.
and experienced
When Morse
manager,

purchased

Damar

Paradis and Shevenell

engineers, while Smith had

discovered
the

that he

decision

that
to

it

its

were highly trained

no such credentials.

could function

retain Paradis

to acquire

and

with

one

Shevenell,

less

and

dismiss Smith, seems quite plausible.

16

employees.

In the

the trier of fact,

fourth place, the district judge,

sitting as

had the right to credit Bond's testimony that

the "maternity leave never

same

played a role in itself"

because the

decision "would have been made in a very close time frame,"

and Guimond's testimony

to like effect.

credibility judgments are the

In a

bench trial, such

judge's prerogative.

See Anthony,
___ _______

952 F.2d at 606.

To be sure,

conclusion.

the record could support a

The chronal proximity of

less innocuous

Guimond's questions anent

Smith's plans to have more children and her dismissal,

ill-advised suggestion that customers

Smith

decided to

stay at

home

termination while on maternity

much so

that

characterized

we, if

free

the

impetus

and employees be told that

to care

Smith's

to write

behind

Guimond's

for her

daughter, and

leave are troubling

a palimpsest,

the

might

appellant's

so

have

ouster

differently.

inference

But

whether the

trial court could

have drawn

of discriminatory intent is not the test.

71 F.3d at 55; Keyes,

_____

853 F.2d at 1027.

inference is also supportable

and

an

See Foster,
___ ______

As long as a

contrary

that is the situation here

then it is for the trial court, not the court of appeals, to call

the tune.

the

After all, "when there

evidence, the

clearly erroneous."

factfinder's

are two permissible

choice between

views of

them cannot

be

Johnson, 63 F.3d at 1138 (citing Anderson v.

_______
________

City of Bessemer City, 470 U.S. 564, 574 (1985)).

_____________________

In

an effort to evade the force of this principle, the

appellant hauls two further

arguments from her bag.

17

First, she

asseverates that Morse

did not in

fact eliminate her

position,

and that the district court's contrary finding, see Smith II, 901
___ ________

F. Supp. at 43,

is itself clearly erroneous.

This asseveration

leads down a blind alley.

When

an employer defends

an employment discrimination

case on the ground of position elimination, the position may not,

like a Dali painting, fade from one image to another only for the

first

image to reemerge

at the blink

of an eye.

See Gallo v.
___ _____

Prudential Residential Servs., Ltd. Partnership, 22

_________________________________________________

F.3d 1219,

1226-28 (2d Cir. 1994); LeBlanc, 6 F.3d at 846; Barnes v. GenCorp

_______
______
_______

Inc., 896 F.2d 1457, 1465 (6th Cir.),

____

(1990).

Yet,

merely

because

designated

duties

to

position elimination

another employee,

carry out

in addition

otherwise

LeBlanc,
_______

to

reallocated

F.3d

cert. denied, 498 U.S. 878

_____ ______

at

already

some or

his own,

within

846;

defense is

all

or

the

Barnes,
______

on

of the

the payroll,

existing work

F.2d

is

fired employee's

because those

896

not defeated

at

duties

are

force.

See
___

1465.

The

elimination of a position signifies the employer's belief that it

can get by with one less helper; it does not necessarily convey a

belief

that the work the employee had been doing was superfluous

and need not be performed at all.

Here, the undisputed evidence before the district court

indicates that

Smith

after Guimond dismissed Smith,

fell

into desuetude.

There is no basis in the record for a suggestion

that Lapanne or

Hoffman

had occupied

assumed

materials

any of

the

manager

the position that

appellant's

18

former duties;

those

duties, which Paradis, Shevenell, and Gilday had performed during

Smith's leave, continued to

by Paradis

and

reorganization

be performed by them (or,

Gilday).

(which

In

cost

short, the

Smith

her

at least,

second round

job)

bore

of

the

striking

resemblance to the first round (which gave Smith her promotion to

materials

manager).

Given

these facts,

determination that Morse eliminated

the district

judge's

the appellant's position

is

unimpugnable.

The

appellant next

endeavors

to

surmount the

sharp

escarpment of the clearly erroneous rule by casting a hook at the

legal

standard

theoretically

applied

sound

way

by

to

the

climb

trial

the

court.

mountain,

This

see,
___

is

e.g.,
____

Reliance Steel Prods. Co. v.

__________________________

National Fire Ins. Co., 880

_______________________

F.2d

575, 577 (1st Cir. 1989) (explaining that appellate courts review

questions of law de novo, even

case

the hook

follows.

She

dismissing

the

does

after a bench trial), but in this

not hold.

says that

Title VII

an employee while she

employer, in

discovers that

The

the process of

her position is

appellant's

thesis is

as

prohibits an

employer from

is on maternity

leave even if

rationalizing its

work force,

redundant and eliminates

it for

that reason.

Refined

to bare

essence, this

thesis suggests

that,

since Morse would not have discovered the redundancy at that time

(if ever) but for the fact that Smith took a maternity leave, the

19

leave brought about the

drive this point

firing.7

And the appellant

home by citing Bond's

attempts to

testimony that "because"

Smith was out on maternity leave, Morse was able to discover that

her

position

was expendable

testimony

which the

appellant

optimistically equates with an admission that Morse dismissed her

"because" of her pregnancy.

With respect, we believe

that this

argument, which seeks to apply a

totally

mechanical

black-letter legal principle in

fashion,

plays

mischievously

on

the

mendacity of language by substituting sound for sense.

It

discharge

pregnancy.

is settled under Title VII that an employer may not

an

employee based

on

the

categorical fact

token, since a short-term inability to work is

nature of

pregnancy and

pregnancy-related

2000e(k),

her

See Newport News Shipbuilding & Dry Dock Co. v. EEOC,

___ ________________________________________
____

462 U.S. 669, 684 (1983); Cumpiano, 902 F.2d at 153.

________

very

of

and

dismissing an

VII

employee in

maternity leave.

bound up with the

childbirth, that disability

condition within

Title

By the same

thus

the meaning

prohibits

an

retaliation for taking

of 42

is a

U.S.C.

employer

from

an authorized

Nevertheless, under the PDA, pregnancy does not

confer total

immunity.8

An

employer may discharge

an employee

____________________

7We

note

hopelessly

in

passing

circular.

that the

appellant's

Morse demonstrated

reasoning

a firm

is

commitment to

downsizing and actively sought ways to streamline its operations.

Consequently,

there is no

basis for surmising

that Morse would

have failed to realize that the materials manager's position

was

superfluous whether or not Smith took a maternity leave.

8We stress that

governed

by,

Medical

Leave

this case

Title VII.
Act

If

of 1993,

(codified at 29 U.S.C.

is brought pursuant
the
P.L.

recently enacted
103-3,

107

to, and

is

Family and

Stat. 6

(1993)

2601-2654) were applicable, a different

20

while

she is

unrelated

to

pregnant

if it

her pregnancy.

does

so for

See,
___

e.g.,
____

Stores Co., 20 F.3d 734, 738 (7th Cir.

__________

Supp.

Troupe v.
______

reasons

May Dept.
_________

1994); Pearlstein, 886 F.

__________

at 268-69; see also Lipsett, 864 F.2d at 899 (holding that

___ ____ _______

an employer may

for a

731

legitimate

dismiss an employee who is in

a protected class

nondiscriminatory reason); Johnson v. Allyn & Bacon, Inc.,

_______
___________________

F.2d 64,

that an

70 (1st Cir.

employer may

pregnancy-induced

1984) (similar).

discharge an

leave so

long as

It follows, then,

employee while

it does

she is

so for

on a

legitimate

reasons unrelated to her gravidity.

Harmonizing these

principles

leads to

the

following

conclusions.

Title

VII mandates

that an employer

must put

an

employee's pregnancy (including her departure on maternity leave)

to one side in making its employment decisions

but the statute

does not command

in the sand and

struthiously

that an employer bury its head

refrain from implementing business judgments simply

because they affect a

at 738

parturient employee.

See Troupe,
___ ______

(holding that the PDA "requires the employer to ignore an

employee's

pregnancy, but

. .

. not

her absence

Crnokrak v. Evangelical Health Systems Corp., 819

________
_________________________________

743

(N.D. Ill.

employers to

1993)

(stating that

"the

pretend that absent employees

their absences are caused

requires

20 F.3d

by pregnancy").

from work");

F. Supp. 737,

PDA does

not

force

are present whenever

At bottom,

Title VII

a causal nexus between the employer's state of mind and

the

protected trait

(here,

pregnancy).

The mere

coincidence

____________________

set of rules would obtain.

21

between that trait and

the employment decision may give

rise to

an inference of discriminatory animus, see St. Mary's, 113 S. Ct.

_________
___ __________

at 2747, but it is not enough to establish a per

se violation of

the statute (at least when, as now, the justification advanced by

the employer in support of the employment decision is on its face

legitimate and nondiscriminatory).9

To sum up, an employee (pregnant or not) runs a risk of

suffering

the

workplace

every day

away.

Title

ordinary

slings

she goes to

and

arrows

work and

that

suffuse

every day

the

she stays

VII is neither a shield against this broad spectrum

of employer actions nor a

come what

may.

eliminate

an

recognized

under Title VII

statutory guaranty of full employment,

Applying the PDA

employer's

manage workers in

business

as the

appellant asks

necessity

and cripple

defense

would

long

industry's ability to

keeping with nondiscriminatory considerations.

That is not the law.

See Bowen v. Valley Camp of Utah, Inc., 639

___ _____
_________________________

F. Supp. 1199, 1204 (D. Utah 1986) (explaining that Title VII, as

amended

by

the

PDA,

does

not

"preclude

an

employer

from

articulating legitimate nondiscriminatory reasons for terminating

a woman while she was on maternity leave"); see generally Blackie

___ _________ _______
____________________

9Say,

for

maintaining
Passover.

example,

Jewish

employee,

corporate records, stays home

The employer

finds a packet of

have had the occasion

fact

simply

that the

have

circumstances,
the

charge

of

for a week to observe

In her absence, her employer rummages through the file

drawers that she maintains in search of

the

in

asked

heroin.

to look through the

employee was
the

on

employee

we think it is

employee for

a particular memorandum.
The

file drawers but

religious leave;
for

the

clear that the

introducing drugs

employer would not

into the

memo.

he would
In

such

employer can fire

workplace without

violating Title VII's ban on religious discrimination.

22

for

v. Maine, ___ F.3d

_____

op. at 13]

___, ___ (1st

Cir. 1996) [No. 95-1777,

(suggesting, in retaliation case,

slip

that "[a] contrary

rule would mummify the status quo").

Here, the

lacking

between

gravidity.

the

In the

district

court found

employer's

court's

mindset

estimation,

appellant for nondiscriminatory reasons.

view

of the

appellant

facts.

was

on

That the

maternity

the

requisite

and

the

employee's

Morse discharged

the

The record permits that

discharge took

leave

nexus

place while

possessed

the

considerable

evidentiary

significance

transformed the

but

that

circumstance

character of the employer's

it per se unlawful under Title VII.

neither

action nor rendered

The district court therefore

did not apply an erroneous legal standard.

III.
III.

THE BREACH OF CONTRACT CLAIM

THE BREACH OF CONTRACT CLAIM

We turn

of contract claim.

took

now to the appellant's

At the

close of her

this claim from the jury

favor.

partially tried breach

case, the trial

court

and directed a verdict in Morse's

The appellant assigns error.

A.
A.

The

judgment

principles

as a

Standard of Review.
Standard of Review.
__________________

court of appeals reviews the grant of a motion for

matter of

that inform

law de

novo, applying the

same legal

the trial

court's ruling.

See Rolon___ ______

Alvarado
________

1993).

v. Municipality of San Juan, 1

_________________________

(1st Cir.

Accordingly, we "examine the evidence and the inferences

reasonably extractable therefrom in

the

F.3d 74, 77

nonmovant."

the light most hospitable to

Fashion House, Inc. v. K Mart Corp., 892 F.2d

____________________
_____________

23

1076,

1088

(1st

Cir. 1989).

If the

proof,

eyed

from this

standpoint,

permits

conclusion favorable

a reasonable

factfinder

to the movant,

"consider

the

this

approach

credibility of

does

Adams, 829
_____

F.2d 196, 200 (1st

not

witnesses,

testimony, or evaluate the weight of

reach only

then the court

the issue from the jury's consideration.

While

to

must remove

See id.
___ ___

allow

the

court

to

resolve conflicts

in

the evidence," Wagenmann v.

_________

Cir. 1987), neither does

it pave

the way for every case, no matter how sketchy, to reach the jury.

Thus, "a mere

scintilla of evidence is not enough to forestall a

directed verdict, especially on a claim or

burden

issue as to which the

of proof belongs to the objecting party."

892 F.2d at 1088.

B.
B.

The Merits.
The Merits.

Fashion House,
_____________

__________

The

that

New

Under

is

parties

who concur

Hampshire law

on very little

governs the

breach of

else

agree

contract claim.

that law, the at-will status of an employment relationship

"one of prima facie

Forms, Inc., 547

____________

unless an

construction."

A.2d 260, 267

employment

Panto
_____

v. Moore Business
______________

(N.H. 1988).

relationship

definite duration, it is presumed to

That

explicitly

is to say,

provides

be at-will.

for

See Butler
___ ______

v.

Walker Power, Inc., 629 A.2d 91, 93 (N.H. 1993) (explaining that
___________________

the at-will presumption "is a gap filler for determining duration

when

the parties'

expiration").

This

contract of

is

employment is

critically important

silent as

when an

to its

employee

challenges her ouster; an employer can give an at-will employee

24

even one who has been a stellar performer

any

time,

for any

reason or

no

her walking papers at

reason, unless

collective bargaining agreement, or

statute, a

some aspect of public policy

proscribes firing the employee on a particular basis.

See Panto,
___ _____

547 A.2d at 267.

Of course,

an employer and

an employee may

alter the

at-will status of the

A.2d

at

93; Panto,
_____

sometimes may

employment relationship.

547

A.2d

be accomplished

at

267.

if the

Such

See
___

Butler, 629
______

modification

employer makes

a binding

offer that the employee can accept by remaining on the

Panto, 547 A.2d

_____

govern

at 264.

at 265.

Thus, the "offer must

and

reasonably certain."

to be

Chasan v.
______

See id.
___ ___

be so definite as to its material

definite terms in the acceptance

performances

See
___

contract formation principles

the creation and construction of such contracts.

terms or require such

promises

Standard

job.

rendered

by

each

that the

party are

Village Dist. of Eastman,

_________________________

A.2d16, 21 (1986) (quoting Restatement of Contracts

Definiteness, like beauty, is

523

32 (1932)).

frequently in the eye of

the beholder.

last

At best, it

analysis,

the

standard

mathematical precision.

(N.H.

1974).

The

involves matters of degree.

See Sawin
___ _____

provisions

"sufficiently

certain to allow

readily,

to

and

damages."

accord
______

enable

Panto, 547
_____

is

of

reasonable

v. Carr, 323
____

contract

claims of breach

a reasonably

certain

A.2d at 264 (internal

Phillips v. Verax Corp.,

________
___________

certainty,

not

A.2d 924,

926

need

only

be

to be resolved

computation

of

citations omitted);

637 A.2d 906,

25

In the

910 (N.H. 1994);

Sawin, 323 A.2d at 926.

_____

In this

of

instance, the appellant takes

various conversations

pastes them together,

the

ensuing

her

she had

and argues that

patchwork, could

reinstate and

continuing

that

promote her

the

the patchwork, remarking in

promises

described

by

the

and Bond,

a rational jury,

conclude

thesis runs, she accepted the offer.

buy

with Guimond

following her

employment in

bits and pieces

that

Morse offered

maternity

wake of

mulling

such

leave.

to

By

promises, her

The district court did not

its ore tenus

___ _____

evidence

are

ruling that "the

of

insufficient

definiteness

to

be

enforceable,

employment relationship,

do

not

[and are such] that

modify

the

at-will

any calculation of

damages or any identification of breach would be impracticable if

not impossible."

We agree with the lower court that the terms of

the alleged contract are too indefinite to raise a jury question.

We start by attempting

the appellant's claim.

statements

to decipher the true

Her lawyers tell us that

nature of

the disjointed

made to her (e.g., "don't worry, we will manage while

you are on maternity leave, your job is secure," "you will assume

more

responsibilities on

created

your return,"

a contract to reinstate her

you are

"wanted back")

following the completion of

her maternity leave.

Yet, the appellant concedes that Bond's and

Guimond's statements

did not

alter the durational

component of

the at-will

employment relationship.

at-will employee to

an at-will

A contract to reinstate an

position (from

which she

could

immediately be removed without cause) is no contract at all.

See
___

26

Light v. Centel Cellular Co., 883 S.W.2d 642, 645 n.5 (Tex. 1994)
_____
___________________

(holding that, as long as the at-will character of the employment

relationship

remains

unchanged,

any

"promise made

by

either

employer

or employee

employment is

that is

Allan

that depends

on an

illusory because it is

exclusively within

Farnsworth,

period of

conditioned upon something

the control

Contracts
_________

additional

of

2.13,

the promisor");

2.14

(2d

ed.

E.

1990)

(explaining that promises to maintain an at-will relationship are

illusory); cf.
___

Butler, 629 A.2d

______

at 94 (terming

an analytically

equivalent argument "a thin reed").

Nor

is

this

the

contract for reinstatement.

either the

proposed

nature of

rate

of

only shortcoming

the

supposed

The evidence also fails to establish

the position

pay.

in

These

Smith was

gaps

to assume or

seemingly

foreclose

her

reasonably certain computation of damages.

Concluding,

as we

do, that

the alleged

contract for

reinstatement is

too indefinite

this

our

phase

of

reinstatement theory

own testimony

to

her

as

to be actionable

inquiry.

In

proffered by her

promises

of

employment

F.W. Morse

that would never

suggest

contract

for

end."

contrast

counsel, the

indicates that she understood

constituting an abiding "commitment

stark

does not

to

end

the

appellant's

the statements made

"indefinitely,"

and

as

to a permanent position with

If, by this,

lifetime employment,

her

she means

claim

to

also

founders.

Although tangentially related New

27

Hampshire precedents

exist, the

contours

state supreme court has not

of

contracts

nonetheless confident

view

of such matters.

Corp.,
_____

federal

862

F.2d 944,

for

lifetime

explicitly addressed the

employment.

that the court would

Cir.

are

adopt the prevailing

See generally Kathios

___ _________ _______

949 (1st

We

v. General Motors
______________

1988) (explaining

that a

court, called upon to determine state law in the absence

of direct in-state precedent,

other jurisdictions);

may look, inter alia, to

_____ ____

Moores v.
______

Greenberg, 834 F.2d

_________

cases in

1105, 1107

(1st Cir. 1987) (similar).

out

of

the ordinary,

That view regards such

and insists

that

an offer

contracts as

for lifetime

employment must be expressed in clear and unequivocal terms to be

enforceable.

See, e.g., Williamson

___ ____ __________

v. Sharvest Mgmt. Co., 415

___________________

S.E.2d 271, 274 (W. Va. 1992); Rowe v. Montgomery Ward & Co., 473
____
_____________________

N.W.2d 268, 273 (Mich. 1991);

(Ala.

Vance v. Huff, 568 So.2d 745,

_____
____

749

1990); Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 381______
_____________________

82 (N.J. 1988); Degen v. Investors Diversified Servs., Inc., 110

_____
___________________________________

N.W.2d

863, 866 (Minn. 1961).

representations made by

Measured by

Morse do not stand

confer lifetime employment.

this yardstick, the

sufficiently tall to

See, e.g., Williamson, 415 S.E.2d at

___ ____ __________

275-76 (finding employer's statement that it would "take care of"

employee

insufficiently definite

to alter

at-will employment);

Skagerberg v. Blandin Paper Co., 266 N.W. 872, 874

__________
__________________

(finding

that

employment," and

the

terms

"as long

"permanent

as the employee

only an at-will contract); Aberman v.

_______

(Minn. 1936)

employment,"

"life

chooses" established

Malden Mills Indus., Inc.,

_________________________

414 N.W.2d 769, 771-72 (Minn. Ct. App. 1987) (concluding that the

28

statement "we are

offering you security"

only indicated an

at-

will employment relationship).

IV.
IV.

THE WRONGFUL DISCHARGE CLAIM

THE WRONGFUL DISCHARGE CLAIM

The

district court terminated the appellant's wrongful

discharge claim

Civ. P. 56.

in advance of trial

Fed. R.

The appellant presses her objection.

A.
A.

The

judgment

under the aegis of

The Summary Judgment Standard.

The Summary Judgment Standard.
_____________________________

Civil

"if

interrogatories,

the

and

Rules

empower

pleadings,

admissions

a court

to

depositions,

on

file,

grant

summary

answers

together

with

to

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).

We have explored

the

nooks and crannies

of this rule

in a

compendium of cases,

see, e.g. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314___ ____ ________
________________________

15

(1st Cir. 1995); National Amusements, Inc. v. Town of Dedham,

_________________________
______________

43

F.3d 731,

735

(1st Cir.),

cert.
_____

denied, 115
______

S. Ct.

2247

(1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Wynne
______
_____
_____

v.

Tufts Univ. Sch. of Med., 976

__________________________

F.2d 791,

793-94 (1st

Cir.

1992), cert. denied, 113 S. Ct. 1845 (1993); United States v. One
_____ ______
_____________
___

Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.),

________________________________________________________________

960 F.2d 200, 204 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d
___________
_____

112,

115-16

(1st

Tobacco Co., 896

___________

Cir.

F.2d 5,

1990); Medina-Munoz
____________

7-8 (1st Cir.

v.

R.J. Reynolds
______________

1990); Garside v.
_______

Osco
____

Drug, Inc., 895 F.2d

___________

46, 48-49

(1st Cir.

1990), and

it would

serve no useful purpose to rehearse that jurisprudence here.

29

For the nonce, we think it is sufficient to repeat that

"summary

pleadings

judgment's role

and assay

the

is to

pierce the

parties' proof

boilerplate of

in order

the

to determine

whether trial is

actually required."

Wynne, 976
_____

F.2d at

794.

Thus, a Rule 56 motion may end the case unless the party opposing

it can identify a genuine

issue as to a material fact.

regard,

"genuine" means that the

that

reasonable

evidence on the

jury, drawing

favorable

In this

point is such

inferences,

could

resolve the fact in the manner urged by the nonmoving party.

One Parcel,
__________

960 F.2d

that a contested fact

the suit

under

at 204.

By like token,

law

resolved favorably to the nonmovant.

When the summary judgment

court must scrutinize

party

opposing

"material" means

has the potential to alter the

the governing

it "in

summary

if the

dispute

outcome of

over it

is

See id.
___ ___

record is compiled the trial

the light most

judgment,

See
___

indulging

hospitable to

all

the

reasonable

inferences

in that party's favor," Griggs-Ryan, 904 F.2d at 115,

___________

but disregarding "conclusory allegations,

improbable inferences,

and unsupported speculation," Medina-Munoz, 896 F.2d at 8.

____________

genuine

issue

of

material

fact is

discernible,

then

If no

brevis
______

disposition ordinarily follows.

Because

reasoning

review

as

the summary

opposed

to

judgment standard

differential

of summary judgment orders

B.
B.

The Merits.
The Merits.
__________

30

factfinding,

is plenary.

F.2d at 347; Garside, 895 F.2d at 48.

_______

requires legal

appellate

See Pagano, 983

___ ______

New

Hampshire

discharge claim.

law controls

Smith's

pendent wrongful

Under that law, even an at-will employee cannot

be cashiered for a reason that offends public policy because such

an

employment decision

"is

not in

the

best interest

of

the

economic system or the pubic good and constitutes a breach of the

employment contract,"

551 (N.H. 1974).

Monge v. Beebe Rubber Co., 316

_____
_________________

A.2d 549,

The appellant urges that her severance offended

the state's

policy against gender-based discrimination.

court below,

Judge Stahl ruled that

available, New

that

an

violation of

law

claim

when a statutory remedy is

Hampshire courts would not

at-will

employee

public policy.

for

wrongful

had been

entertain a complaint

wrongfully

Therefore, the

discharge

In the

failed

discrimination is redressable under Title VII.

discharged

in

appellant's common

because

pregnancy

See Smith I, slip

___ _______

op. at 9-10.

In reaching

this conclusion, the district

court drew

heavily upon the teachings of Howard v. Dorr Woolen Co., 414 A.2d
______
_______________

1273 (N.H.

1980).

later New Hampshire

Tea Co.,
_______

The appellant

strives to convince

case, Cloutier v.
________

436 A.2d 1140

us that a

Great Atlantic & Pacific

_________________________

(N.H. 1981), defenestrates

the district

court's reading of Howard.

______

In

Howard,
______

discharged because

construed

only

of

We are not persuaded.

the plaintiff

age.

The

alleged

that

New Hampshire

he had

Supreme

been

Court

its seminal decision in Monge, 316 A.2d 549, "to apply

_____

to a situation where

performed an act

an employee is

discharged because he

that public policy would encourage,

31

or refused

to do that which public policy would condemn."

at

1274.

discharge due

category" inasmuch

unlawful age

as

the

to

age fell

"proper

discrimination is

Howard, 414
______

outside

remedy for

provided for

court synthesized

these cases, holding

this "narrow

an

action

by statute."

(listing state and federal statutory remedies).

A.2d

for

Id.
___

In Cloutier, the
________

that to come

within the

judicially created public policy exception a plaintiff "must show

that the

defendant

was

motivated

by

bad

faith,

retaliation in

terminating [her] employment," 436

and

"demonstrate

must also

[s]he performed

an act

that [s]he

that public

malice,

A.2d at 1143,

was discharged

policy would

or

because

encourage, or

refused to do something that public policy would condemn," id. at

___

1144.

Cloutier did not answer, however, the question of whether

________

such a

cause of action lies where, as here, the public policy at

stake is codified

in a

statute that itself

provides a

private

right of action to remedy transgressions.10

A recently decided

case makes the import of

the state

supreme court's earlier decisions pellucid and speaks directly to

____________________

10In Cloutier,
________

the defendant

statutory expression of a

argued that

there must

public policy, and that

be a

a generalized

assertion of a public policy (loosely based on a federal statute)

is insufficient

as a

prong of a wrongful
1144-45.

The

restrict[ed

matter of

law to

discharge claim.

court

the] holding

in

Howard to
______

rise to wrongful discharge

public policy

See Cloutier, 436

___ ________

disagreed, observing

public policy enunciated in a statute.

giving

meet the

that

it

A.2d at
had

"not

situations involving
Public policy

actions may also

exceptions

be based on

non-statutory

policies."

more than that a

prove the

Id. at
___

1144.

This

language means no

plaintiff can utilize a statutory

existence of a public policy;

more sophisticated issue

of whether

provision to

it does not address the

a plaintiff may

rely on

statute that provides a remedy for its violation.

32

the question that

confronts us here.

Beverages, Inc., 663

_______________

In

A.2d 623 (N.H. 1995),

on a section of the Bankruptcy Code to

Wenners v. Great State

_______
___________

the plaintiff relied

establish a public policy

against the termination of his employment.

court held that "[w]hile a plaintiff

remedy

where

statutory

citations

action," a

the relevant

cause

of

omitted).

to

replace

wrongful discharge

statutory provision did

action

for its

We deem

625.

The

may not pursue a common law

legislature intended

cause of

proceed if

private

the

See id. at
___ ___

with a

action could

not provide

violation.

this holding to

it

Id.
___

(internal

be dispositive of

Smith's contention.11

Title VII

gender-based

pregnancy

discrimination

(including,

discrimination) but

action to remedy

procedure

not only codifies the

for

but

also creates

violations of

pursuing

public policy against

such an

not

a private

that policy and

action.

limited

limns a

to,

right of

mature

Under Wenners,
_______

the

existence

of

such a

remedy

precludes

the

appellant, in

the

circumstances of this case, from asserting a common law claim for

wrongful

discharge.

It follows that

the district

court acted

impeccably in granting summary judgment on this claim.12

____________________

11To

the

extent

that

either

Electronics, Inc., 882 F. Supp.

__________________
Godfrey v.
_______

Kopf
____

v.

Chloride Power
_______________

1183, 1189-90 (D.N.H. 1995), or

Perkin-Elmer Corp., 794

__________________

F. Supp. 1179,

1187 (D.N.H.

1992), hold otherwise, Wenners consigns them to the scrap heap.

_______

12We acknowledge some

and

apparent tension between this

our earlier opinion in

Chamberlin v. 101 Realty, Inc., 915

__________
_________________

F.2d 777, 786-87 (1st Cir. 1990).

for a
the
that

pair of reasons.

ruling

We set Chamberlin
__________

First, the parties there

to one side

did not raise

issue of statutory preclusion, and the panel did not address

issue.

Second,

Wenners makes
_______

33

a dispositive

difference.

V.
V.

CONCLUSION
CONCLUSION

We

need go

no further.

On

the factbound

claim, this case presents a close question.

Title VII

In the end, however,

we must uphold the district court's judgment because the standard

of review is generous and there

to

support the trier's findings.

our task is

is enough evidence in the record

On the two common law claims,

appreciably easier; both

claims raise questions

of

law, not of fact, and

the district court

of two different district judges

albeit in

the person

correctly resolved them.

Affirmed.
Affirmed.
________

Concurring opinion follows

Concurring opinion follows

____________________

When

the highest court of a state

disposes of an issue of state

law contrary to the resolution of the issue theretofore suggested

by

a federal

Williams
________

court,

the

latter ruling

v. Ashland Eng'g Co., 45

___________________
stare

F.3d

must

give

588, 592

decisis

See
___

(1st

Cir.)

principles

when

(permitting

relaxation

of

"controlling

authority,

subsequently announced,"

undermines an

earlier decision), cert. denied, 116 S. Ct. 51 (1995).

_____ ______

34

way.

BOWNES, Senior Circuit Judge, concurring.

BOWNES, Senior Circuit Judge, concurring.
________________________________

am

compelled by

findings

of

fact to

separately because

deciding

district court's

troubled

VII claim.

due

the

a district

court's

final result,

I write

by the

The

I, however, am convinced

was

analysis used

majority applauds

failure to fully analyze

direct evidence of

district court

deference

concur in

I am

the Title

"prudential."

the

in

the

Smith's claims as

that Smith produced

intentional discrimination

obligated to

Although

fully analyze

and that

the

plaintiff's

case under the framework of Price Waterhouse v. Hopkins, 490

____________________________

U.S. 228

(1989).

Additionally, I think

that the

majority

mischaracterizes

requirement

defense.

the

law

relevant

to

the

causation

under Title VII and Morse's position-elimination

Its

opinion

could erroneously

invitation to use that defense as a cover

be

viewed as

an

for discrimination

against women who take or plan to take maternity leave.

I.
I.

The District Court's Analytical Process

The District Court's Analytical Process

The basic

arises

from the

plaintiff's

facts are undisputed.

district

claim.

court's

The Supreme

analytical frameworks that courts

must

follow.

Where

My first concern

abbreviated analysis

Court has

of

established two

reviewing Title VII claims

the evidence

produced

at

trial

is

-3535

"direct,"

the

Price Waterhouse
________________

Fields v. Clark Univ.,

_____________________

cert.
_____

denied,
______

113

framework

applies.13

966 F.2d 49, 51-52 (1st.

S.Ct.

976

(1993);

See
___

Cir. 1992),

Cumpiano v. Banco
___________________

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Jackson v.
______________
__________

Harvard Univ.,
_____________

900 F.2d 464,

467 (1st Cir.),

cert. denied,
____ ______

498 U.S. 848 (1990).

If the

circumstantial,

evidence of

the

discrimination is

burden-shifting framework

Douglas Corp. v. Green, 411

_______________________

of McDonnell
_________

U.S. 792 (1973),

McDonnell Douglas Corp. v. Green, 411

________________________________

indirect or

governs.

U.S. 792 (1973); Texas

_____

Dep't of Community Affairs v. Burdine, 450 U.S.

______________________________________

248 (1981);

St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742 (1993).

______________________________

basic

rules

have

been

followed,

See
___

as

they

Circuit.

See, e.g.,
___ ____

F.2d at

467; Chamberlin v. 101 Realty, 915

_________________________

must,

These

by this

Cumpiano, 902 F.2d at 152; Jackson, 900

________
_______

F.2d 777,

782

n.7. (1st Cir. 1990).

Yet,

the

district

discrimination played

the

no part

court

found

that

in the decision

gender

to terminate

plaintiff's employment without determining whether there

was direct evidence under Price Waterhouse or even mentioning

________________

____________________

13.

The

itself

plurality
require

opinion

direct

in Price Waterhouse
_________________

evidence

of

reference to direct

evidence appears

concurrence in that

case.

This

court first adopted

does

discrimination.
in Justice

See, e.g., 490

___ ____

not
The

O'Connor's

U.S. at

270-74.

Justice O'Connor's conclusion that

direct evidence is required in mixed-motives cases in Jackson

_______
v. Harvard Univ., 900 F.2d 464 (1st Cir. 1990), cert. denied,
________________
_____ ______
498 U.S. 848 (1990).

-36-

36

McDonnell Douglas.
_________________

See Jackson,
___ _______

that

direct

finding of

900 F.2d

evidence

at 467

renders the

(holding

McDonnell
_________

Douglas framework inapplicable).

_______

The majority compounds this

analytical omission

by praising

the district court

"directness"

for

differential

and

direct

having

"largely

for its

bypassed

evidence/circumstantial

any

evidence

tamisage."

analytical

district court's

processes

Supreme

decision to

Court

and

circumvent the

circuit precedent

require should be criticized, not praised.

This is particularly true where Title VII cases are

concerned.

The discrimination

that

plaintiffs like

Smith face in the workplace is frequently as subtle

invidious.

Supreme

as it is

It is in recognition of this hard truth that the

Court

established

an

analytical

process

district courts, in my opinion, are required to follow.

e.g.,
____

McDonnell
Douglas,
___________________

implementation

clear

411

of [employment]

that Title

subtle or

Kathy

VII

U.S.

at

801

decisions, it

tolerates no

otherwise."); see also Price

. .

("[I]n

which

See,
___

the

is abundantly

discrimination,

Waterhouse, 490 U.S.

___ ____ _________________

at 271.

that

The Court's jurisprudence stands for

the unlawfulness

challenged

in

of the

Title VII

process of inquiry.
_______

the principle

employment actions

cases

is best

exposed

See, e.g., Burdine, 450 U.S.

___ ____ _______

("In a Title VII case, the

typically

through a

at 255 n.8

allocation of burdens and the . .

. prima facie case [requirement] [are] intended progressively

-3737

to sharpen the inquiry

intentional

into the elusive factual

discrimination.").

Because

question of

stand by

that

principle, I would ordinarily suggest a remand in a case such

as this.

I have come to the conclusion, however, that remand

would not be

that

meaningful in this

agree with

the

evidence produced by Smith

the

result because I am

precedent.

case.

district court's

This does not

finding

was not compelling.

bound by Supreme

mean

that the

concur in

Court and circuit

And in this area, that precedent, unfairly in my

opinion, imposes too

heavy a burden on plaintiffs

trying to

prove the

ultimate issue

in discrimination cases:

that the

employer intentionally discriminated against her on the basis

of a Title

produced

VII-protected trait.

enough evidence

Price Waterhouse or
_________________

to meet

proved

preponderance

facts

Although

its

of the

established

evidence or,

agree that

defense

alternatively,

insufficient

to

has

burden under

a factfinder to conclude

position-elimination

were

that Smith

her initial

McDonnell Douglas, but

__________________

would have been plausible for

Morse

I believe

show

it

that

by

that the

pretext.

it did so without adhering to the process Title VII

requires, the

district court

decided the ultimate

the case and, although I disagree with it, I

decision was clearly erroneous.

issue in

cannot say that

-3838

II.
II.

Direct Evidence Under Price Waterhouse

Direct Evidence Under Price Waterhouse
________________

In

ultimate

light

holding

pertaining to the

of

on

my

concurrence

Smith's

nature of the

Title

in

VII

the

majority's

claim,

issues

evidence Smith produced

at

trial are, admittedly, moot.

Nevertheless, I want to explain

my belief that Smith produced direct evidence and

Waterhouse controls
__________

this case.

reasons.

First,

the

determines

whether a

This

is important for

availability

case

of

should be

Waterhouse or McDonnell Douglas.

__________
_________________

that Price
_____

direct

two

evidence

analyzed under

Price
_____

Direct evidence renders the

McDonnell Douglas framework inapposite and imposes a heavier

__________________

burden

of proof on the employer.

Fuller v. Phipps, 67 F.3d

________________

1137, 1141 (4th Cir. 1995).

Second,

the determination of

whether the evidence

produced at trial is direct, though cast in procedural terms,

affects

the substantive

outcome in

Title VII

cases.

See
___

Deborah

C. Malamud,

After Hicks,
___________

jurisprudence

procedure.").

93 Mich. L.

Rev. 2229, 2229

cloaks substance

in

the

(1995)("Title VII

'curious

garb'

of

This observation is of less import in Smith's

case because, at the

suit

The Last Minuet: Disparate Treatment

_______________________________________

occurred, the

time the events giving rise

law provided that

an employer

to Smith's

shown to

have unlawfully discriminated could avoid Title VII liability

by

demonstrating by

preponderance of

adverse employment decision

evidence that

the

would have been the same even if

-3939

discrimination

40

F.3d

direct

had played no role.

1551, 1564-65

evidence of

(9th Cir.

discrimination,

enough to impose liability on Morse.

Lam v. Univ. of Hawai'i,

_______________________

1994).

In

without more,

Waterhouse
__________

direct

evidence

of

was

not

Id.
___

Under today's applicable law, however,

producing

other words,

discrimination

may have a Title VII remedy.

a plaintiff

under

Price
_____

Id. at 1565 n. 24.

___

The Civil Rights Act of

scheme"

and made "mixed-motives

plaintiffs."

of

1991 "modified the Price Waterhouse

_________________

1991,

Fuller, 67
______

Pub.

(1991)(codified

treatment more favorable to

F.3d at 1142; see Civil

___

L. 102-166,

at 42 U.S.C.

107,

105

2000e-2).

Rights Act

Stat. 1071,

Section 107 of the

Act provides that Title VII is violated whenever an

takes sex

other

or pregnancy

considerations

into account, regardless

independently

employment decision.

Id.; see 42
___ ___

unlawful

practice

employment

complaining

sex,

or

party demonstrates

national origin

was

explain

U.S.C.

is

1073

employer

of whether

the

2000e-2(m)("[A]n

established

that race,

a motivating

adverse

when

the

color, religion,

factor

for any

employment practice, even though other factors also motivated

the practice.").

very least,

Prevailing mixed-motives plaintiffs, at the

are now

entitled to declaratory

relief and attorney's fees.

69

and injunctive

See Kerr-Selgas v. Am. Airlines,

___ ___________________________

F.3d 1205, 1210 (1st Cir. 1995)(citing 42 U.S.C.

5(g)(2)(B))(where

2000e-

an employer in a mixed-motives case proves

-4040

that it would

have made

the same

decision, the

prevailing

plaintiff is entitled to attorney's fees, and declaratory and

injunctive relief, but not

what

constitutes direct

damages or reinstatement).

evidence

is a

Thus,

critical issue

for

Title VII plaintiffs.

The majority makes

gun" evidence.

this

Circuit

Using

has yet

repeated references to "smoking

this term only obscures the

to

clearly

define what

direct evidence of gender discrimination.

we have held

and

that "[d]irect evidence

of itself, shows

fact that

constitutes

On prior occasions

is evidence which,

a discriminatory animus."

Jackson,
_______

900 F.2d at 467.

and does

not further

But, this

understanding

in

See, e.g.,
___ ____

reasoning is circular

of the

term.

Justice

O'Connor,

defined

in her

concurring

the term

evidence

in

the negative,

"exclude[s]

'statements

by

opinion

'stray

explaining that

remarks

nondecisionmakers',

decisionmakers unrelated to

in Price Waterhouse,
_________________

direct

in

the

workplace,'

or

'statements

by

the decisional process itself.'"

Price Waterhouse, 490 U.S. at 277 (O'Connor concurring).

________________

I contend that the evidence Smith produced at trial

was direct and, therefore,

Price Waterhouse
________________

was pregnant,

leave.

framework.

and

The evidence shows

requested and received

After being on

Morse's general

warranted full application of the

leave several weeks,

manager, Guimond, that she

that Smith

unpaid maternity

Smith notified

wanted to return

-4141

to

work

Guimond

on

May 15,

approved

the

1989,

week

earlier than

earlier start time

that her

job was secure.

intended

to have

she did.

planned.

and assured Smith

She also asked Smith

additional children; Smith

whether she

indicated that

On

occurred,

May 2,

Guimond also

about Smith's future

Guimond

1989, the

day after

this conversation

questioned Vendasi,

childbearing plans.

Smith's sister,

Smith

confronted

about this behavior and the rumor that she would not

be returning to

work because

she had decided

to stay

home

with her child.

Guimond denied any knowledge about the rumor

and reiterated that Smith's job was secure; she repeated this

guarantee two days later.

terminated Smith on May

Despite these assurances, Guimond

11, 1989, one week after

conversation and four days before Smith was slated

to work.

Smith

Guimond requested permission

failed to return to

their last

to return

to tell people

work because she

that

decided to stay

home to care for her child, but Smith refused to give it.

There

is

precedent holding

that

statements like

those

Guimond made

evidence.

For

to Smith

example, in

and Vendasi

the Eighth

constitute direct

Circuit, statements

made by an employer can be direct evidence of discrimination,

if

made during

a key

Asbill, 930 F.2d 1348,

______

that

an

decisional process.

In

1354 (8th Cir. 1991), the

employer's oral

statement,

-4242

Beshears v.
___________

court held

"older employees

have

problems adapting

to changed

and new policies,"

was direct

evidence of age discrimination.

930 F.2d at 1354.

Two years

later,

Beshears holding
________

to include

the court

expanded its

written statements.

F.2d

444,

449-50

Radabaugh v. Zip Feed Mills, Inc., 997

__________________________________

(8th

Cir.

1993),

held

that

written

statements included in corporate planning documents were also

direct evidence of discrimination.

Other

circuits

have

included

statements

made

outside of the decisional process in the definition of direct

evidence.

In 1994,

discharge

statements

the

made

Seventh Circuit

by

held

supervisor

that post-

were

direct

evidence of age bias, even though they were not reflective of

an

express

intent to

discriminate.

See
___

Robinson v. PPG
________________

Indus., Inc., 23 F.3d 1159, 1165 (7th Cir. 1994).

____________

the

Eleventh Circuit

employer

to

third

discriminatory animus.

897

has

held that

parties

In

F.2d 1067, 1070 (11th

are

Similarly,

statements made

direct

evidence

by an

of

EEOC v. Beverage Canners, Inc.,

_______________________________

Cir. 1990), the

court found that

racially biased statements made by a supervisor to workers in

his plant were direct evidence of racial animus and a hostile

environment under Title VII.

Guimond's statements to both Smith and Vendasi fall

well within the definition

cases such

as Beshears and

of direct evidence established by

Beverage Canners.

Guimond

was

________

solely

responsible

________________

for Morse's

personnel

decisions.

Her

-4343

questions about Smith's childbearing plans were neither stray

nor

random and

Additionally,

evinced

a concern

Guimond began

about future

asking questions

pregnancy.

about Smith's

childbearing

plans

decisional period.

of

the decision

during

what

she

admits

Finally, the facts show

to

terminate Smith

was

was

key

that the timing

suspicious.

Cf.
___

Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994);
__________________________

Josey v. Hollingsworth Corp., 996

______________________________

1993).

Within two

she had

639 (3d

weeks of learning about Smith's

have more children, Guimond

though

F.2d 632,

Cir.

plans to

decided to terminate Smith, even

repeatedly assured

Smith

that her

job was

secure.

This evidence of discrimination is direct and clear

even if it does not reach the status of a

smoking gun.

some inferences must be drawn from what was said and

reach

this

conclusion

does

not

make

Smith's

That

done to

evidence

indirect.

As

the Seventh

Circuit recognized

in its

1991

decision, Visser v. Packer Eng'g Assoc., Inc., 924 F.2d 655,

____________________________________

659 (7th Cir. 1991), "all knowledge is inferential."

Because

judges are not mind-readers and cannot reach into the mind of

a Title VII defendant,

is necessary in any

indirect.

a certain amount of inference-drawing

case, whether the evidence is

The ultimate issue in disparate treatment cases

- whether the employer intended to discriminate --

established

direct or

by

purely

direct

-4444

evidence.

See
___

cannot be

Charles

A.

Sullivan,

Accounting For Price Waterhouse: Proving Disparate

__________________________________________________

Treatment Under Title VII, 56

___________________________

Brook.

L. Rev.

1107,

(1991)("'[D]irect evidence' of intent cannot exist, at

in the sense of evidence which, if believed, would

the

ultimate issue

of intent

Bethlehem Steel Corp.,

______________________

958

cert. denied, 113 S.Ct. 82 (1992).

_____ ______

least

establish

to discriminate.");

F.2d 1176,

1138

1183-84 (2d

Tyler v.
________

Cir.),

Rather

than

adhering

meaningless requirement of a

adopt

definition of

which satisfies

O'Connor

the

set out

to

the

colorful

smoking gun, I think we

direct evidence

minimum negative

in Title

should

VII cases

requirements

in Price Waterhouse:
_________________

but

Justice

"exclude[s] 'stray

remarks in the workplace,' 'statements by nondecisionmakers',

or 'statements by decisionmakers

process

itself.'"

(O'Connor

Price
Waterhouse,
__________________

concurring).

In accord

of 1991, this definition

viable

Zubrensky,

option

unrelated to the decisional

in

490

U.S.

at

277

with the Civil Rights Act

preserves the mixed-motives case as

Title

VII

suits.

Cf.
___

Michael

A.

Despite The Smoke, There Is No Gun: Direct

_________________________________________________

Evidence Requirements In Mixed-Motives Employment Law After

_____________________________________________________________

Price Waterhouse v. Hopkins,

_____________________________

(1994).

to

46

Stan.

L. Rev.

959,

969

It lowers the high hurdle of "smoking gun" evidence

reasonable

limits

discrimination cases

so

that

plaintiffs

can receive all

VII was intended to give.

-4545

in

employment

the protections

Title

Even if my

evidence

definition of

Price Waterhouse
________________

direct

is rejected, however, it is irrefutable that

Smith

made out a prima facie case of discrimination under McDonnell

_________

Douglas: that after being directly so asked, she expressed an

_______

intention

to

become

pregnant

in

the

future;

performance at work was more than satisfactory; that

terminated

"secure;"

after

repeated

and that her

assurances

duties continued to

comparably qualified individuals.

153;

1988).

that

her

that

her

she was

job

was

be performed by

See Cumpiano, 902 F.2d at

___ ________

Lipsett v. Univ. of P.R., 864 F.2d

_________________________

881, 899 (1st Cir.

Smith's

complied

proved

manager

with Supreme

and that

employees.

prima

facie

Ronayne, 61
_______

of

Court and

that she was fired

other

prima

reiteration

her

these

facts

on

appeal

circuit precedent.

Smith

even though she

duties continued

to be

performed by

In my view, this is all McDonnell Douglas'

_________________

case

burden

requires.

F.3d 1026, 1031 (1st

facie showing

is not

See, e.g.,
___ ____

especially burdensome.")(citing

51 F.3d 1087,

1995)).

should

The district

court

McDonnell Douglas framework

_________________

Byrd v.
________

Cir. 1995)("[T]he required

Woodman v. Haemonetics Corp.,

_____________________________

deficient.

was an excellent

1091 (1st Cir.

have shifted

before finding Smith's

to

the

evidence

III.
III.

Causation Under Title VII

Causation Under Title VII

-4646

In

disparate

addressing

treatment

"coincidence"

between

the

cases,

question

the

pregnancy

of

majority

leave

and

causation

stresses that

an

in

employment

decision does

not in

not prove intentional discrimination.

all cases, but

it arguably

did in this

It may

case.

The

majority's discussion of causation completely disregards this

possibility.

give

Its blanket

plaintiffs

actions

"total

ignores the

contention that pregnancy does not

immunity"

extent to

employers

an

opportunity

to

maternity

leave or who express

from

adverse employment

which maternity

discharge

leave gives

women

an intention to

who

take

have one or

more children.

The evidence arguably shows that the position Smith

held

would

have

considered her

been

eliminated even

if

pregnancy or intention to

the future.

It

does not

however, that

Smith

necessarily

would have

been

Morse

had

not

become pregnant in

follow

fired had

from

Morse

this,

not

considered

children.

leave,

her

maternity

leave

or

desire

to

have

more

In their conversations before Smith took maternity

Bond,

Morse's

eliminating the

president,

materials manager

and

Guimond

position, but

discussed

not Smith.

The record shows both that Bond initially intended to

Smith because

of her excellent

skills and that

retain

he admitted

that Smith would still be employed at Morse had she not taken

maternity leave.

-4747

Had Smith

refused to

disclose or even

lied about

her intention to have more children, she would probably still

have a

job at Morse.

concerned

about the

and suggest that

disruption in

the probability

The facts show that

Guimond was very

disruption Smith's absence

she would

the future.

that Smith's

have taken steps

The majority

would cause

to avoid

completely ignores

expressed desire to

children was the motivating factor in her

such

have more

discharge and that

her temporary absence on maternity leave gave her employer an

opportunity to find

a reason

to discharge her.

contend

that the evidence Smith

produced was sufficient to establish

intent and causation.

The two

the need

examples the majority gives

for a causal

adverse employment

cases

are both

to illustrate

connection between pregnancy

action challenged in

inapposite and

and the

disparate treatment

unfair.

Footnote 9

of the

court's opinion analogizes Smith's dismissal during maternity

leave

to an

leave

because heroin is discovered in her

that

in

employee who

both

cases

employer to make

the

is discharged while

employee's

desk.

absence

the discovery resulting in

on religious

It is true

enabled

the

discharge.

But

here the analogy breaks down.

The

possession of heroin

is illegal; its presence

in the employee's desk was

(although an explanation

a fact that could not

might be made).

be refuted

The employer

did

-4848

not

have to make any determination

employee's

In the

work or her capabilities.

case of maternity

as to the quality of the

She had

leave, however, an

to be fired.

employer would

have

to

make

position made

the

good business

employee's

plans would

decision.

judgment

prior

be part

as

to

sense.

whether

Considerations

performance and

of the

eliminating the

future

such as

childbearing

employer's position-elimination

At least in part, that decision would be "because

of" pregnancy, present and future.

It could not be made

in

the vacuum the majority's hypothetical presupposes.

Similarly,

its

Smith

poor

view obscure

F.3d

the causation

to employees

attitudes or

absences.

the cases the majority cites to support

issue and

who are placed

who are

unfairly compare

on probation

discharged because

because of

of unexcused

Cases such as Troupe v. May Dep't Stores Co., 20

________________________________

734 (7th

Cir.

1994), Crnokrak v. Evangelical Health

________________________________

Systems Corp., 819 F. Supp. 737 (N.D. Ill. 1993), and Johnson
_____________
_______

v. Allyn & Bacon, Inc., 731 F.2d 64 (1st Cir.), cert. denied,
______________________
_____ ______

469

U.S.

1018

elimination.

dismissal

absences.

after

(1984),

involved

discharge,

In Troupe, the employee's

______

was

motivated

by

her

returning from maternity

expected, whereas

supervisory skills and

who was fired

-4949

and

frequent

who was terminated

leave later

Johnson dealt with an

_______

position

pre-maternity leave

tardiness

Crnokrak involved a plaintiff

________

not

than originally

employee who lacked

after being placed

on

probation because of a poor work attitude.

elimination case

the

Island Univ. Hosp.,

___________________

similarly

and

an

maternity

886 F.

inapposite; it

employee

leave.

the plaintiff

was

majority cites,

who gave

Supp. 260

Pearlstein v. Staten
_____________________

(E.D.N.Y. 1995),

involved adoption,

short

notice

of

is

not pregnancy,

her need

for

And in that case, the evidence showed that

was accidentally

experiencing

The one position-

overpaid, that

financial difficulties,

her employer

and that

she had

received no assurances about the security of her job.

These cases

issues

presented

evidence

in this

do not directly

here.

case

address the causation

In contrast

shows that

to

Pearlstein,
__________

Smith received

repeated

assurances about her job, that the raise she received

taking

maternity leave

termination was not due

the evidence does

attitude,

lacked

was

not show that Smith

that she had ever

regular promotions and

suggestion

her level

of

that Smith's

The fact

Additionally,

a poor

or that she

that Smith

people at

education or

Smith's

was fired for

been on probation,

that few

before

and that

to economic hardship.

supervisory skills.

exceeded

intentional,

received

the Morse

experience belies

performance and

the

skills were

plant

any

below

par.

Finally,

Smith

received

maternity leave,

shortened the

was fired before

she could

permission

duration of that

return to work,

for

her

leave, and

not before

she

-5050

left.

Smith's maternity leave, thus, did not pose a problem

for

Morse

in

the

same

way

that

the

Troupe
______

employee's

unexpected illness or the Crnokrak plaintiff's extended leave

________

did

all,

for their employers.

is

that Smith

The crux of Morse's defense, after

was fired

because

her absence

had no

effect whatsoever on Morse's operations.

My point

fully

shield

plaintiffs

business judgment

employers

is simple:

from

or

from

just

adverse

necessity does

Title

VII's

that, more

pregnancy

will exist.

and

often

than not,

position elimination

not

employment actions,

not

sanctions.

discussion of causation understates

believe

as pregnancy does

totally

The

immunize

majority's

this important point.

a correlation

during

between

maternity leave

It is naive to think that an employer would not

take an employee's pregnancy

in

the

future

determining

into

whether

or intention to become pregnant

consideration during

the

employee's

the

position

process

of

should

be

eliminated.14

IV.
IV.

The Position-Elimination Defense

The Position-Elimination Defense

____________________

14.

I am, of course, aware that the Family and Medical Leave

Act

of 1993, P.L. 103-3,

U.S.C.
raise.
and does

107 Stat. 6

2601-2654) addresses
That Act,

a number

of the

however, does not apply in

not, moreover, correct

the majority

(1993)(codified at 29

discrimination claim.

-51-

pre-1993 cases

the problems I

opinion's analysis and

concerns I

perceive in

posture towards Smith's

51

The majority upholds

that

Morse made

out a

the district court's

position-elimination defense

grounds: that

Morse reduced its

that

duties

Smith's

were

already on the Morse payroll.

that

Morse

finding

arguably proved

on two

management-level staff

shifted to

employees

who

and

were

Though I concur in the holding

the

facts

necessary to

rebut

Smith's gender discrimination claim, I think the scope of the

position-elimination defense is considerably more narrow than

the majority's

company is

employees

interpretation of the facts suggests.

able to manage in

will not

always be

purpose, contrary to what the

that so,

the absence of one

proof of

That a

of its key

a nondiscriminatory

court's opinion implies.

Were

every woman who took maternity leave would do so at

risk of losing her job.

Moreover,

the conclusion

that

Morse reduced
_______

management staff is not supported by the evidence.

its

Morse did

not, as the court's exposition of the

facts suggests, reduce

its

three.

management

team

from seven

reached this conclusion by

to

The majority

eliminating Bond and Guimond from

its final count, even though they each donned

one of the two

hats formerly

worn by

chief officer.

original

founder and

It also erroneously included Smith in Damar's

management team,

management title

two

Darryl Robinson, Damar's

even though

at that time.

assistant manager

positions

-5252

she did

not have

And it failed to include the

in its

final count,

even

though

the

individuals

management

titles.

majority's

calculations

management

team was

holding

If

those

slots

the individuals

are

added,

the same at

did

have

excluded from

the

the end

size

as it

of

the

Morse's

was in the

beginning -- seven.15

The facts demonstrate that Morse mainly reorganized

___________

its

management

team.

eliminated titles,

management.

Because

district court

elimination,

agree,

carried

but

It

consolidated

did not

decrease

it would

to interpret this

however,

out will

concur in

that

the size

of

have been plausible

and

its

for the

reorganization as position

the court's

reorganizations

be enough to

positions

holding.

of

rebut claims

the

do not

sort

Morse

of intentional

discrimination in every

case.

For me,

whether the district

court was clearly erroneous in its findings on this issue was

a very close call.

The court's

that

her

duties

holding that Smith

were

was not

merely transferred

to

replaced,

other

Morse

____________________

15.

Post-acquisition

management team

of

Damar,

included the

Morse's

following seven people:

(president); Guimond (general manager);

Shevenell

(sheet

(sales);
Hickman

metal);

Bickford

and Smith (materials).

in

this

number

upper-level

because

Bond

Paradis (machining);
(engineering);

I do not
they

Seeger

include Lane and

were

fired

almost

immediately after Damar's acquisition, partially due to their

poor performance.
management

team

After Smith was fired, Morse's upper-level

still

included

seven

individuals:

Bond

(president); Guimond (general manager); Paradis (operations);

Shevenell (manufacturing); Seeger (sales); Lapanne (assistant
manager); and Hoffman (assistant manager).

-5353

employees,

is based on our

holding in LeBlanc v. Great Am.

_____________________

Ins. Co., 6 F.3d 836 (1st Cir. 1993), cert. denied, 114 S.Ct.
________
_____ ______

1398

(1994).

defense is not

only "replaced"

LeBlanc
_______

holds

defeated by

because

that

a position-elimination

the claim that

an employee

was

"another employee [was] assigned to

perform the

or

plaintiff's duties in addition

[because]

the

work

[was]

redistributed

existing employees already performing

at 846; see
___

to other duties,

among

related work."

also Barnes v. GenCorp., Inc.,

____ _________________________

896 F.2d

other

6 F.3d

1457,

1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990).

_____ ______

To

the extent

Leblanc at all,
_______

not the second.

to the

the

that Morse's defense

it does so on the basis

second

satisfied

prong,

of the first prong,

In analogizing Morse's first reorganization

reorganization which

majority

comports with

occurred after

opinion gives

the

the

"related

by demonstrating

that

impression

work"

Smith's firing,

that LeBlanc's
_______

requirement,

a plaintiff's

can

be

duties were

simply transferred to someone working in the same company.

disagree.

cannot

I contend that LeBlanc's related-work requirement

_______

be met unless the employer proves that it shifted the

plaintiff's duties

to employees who were

already performing

some of the plaintiff's duties or, at least, duties that were

very similar.

This did not occur in this case.

In the first reorganization, Smith was promoted

materials manager and

to

asked to officially assume some of the

-5454

duties

she

had

already

inadequacies of other

been

performing

managers.

Smith at that

duties which,

in my opinion, constituted

LeBlanc.
_______

contrast,

In

shift Smith's

managers

the second

responsibilities to

been performing

took

her

on

job.

what

because

of

time assumed

related work under

reorganization did

managers who had

After Smith

were essentially

the

was

new

not

already

fired,

duties;

those

the

majority's own contention that Paradis and Shevenell were far

more experienced than Smith and responsible for the technical

aspects

of

Morse's

business bears

this

out.

That

they

performed those duties for some period before Smith was fired

was

only

because

nonpregnancy-based

Smith

was

on

maternity

explanation

for

leave.

their

The

additional

responsibilities did not kick in until after Smith's firing.

If Title VII's protections

discrimination are to

against pregnancy-based

have any force, the relevant period of

inquiry for determining whether the duties formerly performed

by

a plaintiff

were assumed

related work under LeBlanc

_______

leave.

leave

Using the

of inquiry must

time period when

maternity leave creates a perverse

against

already performing

should not be during

The relevant period

began.

by someone

pregnant women by firing

a maternity

be before that

the woman

is on

incentive to discriminate

them when they

are not at

their

someone

jobs and

when

it will

almost

else is performing their

always be

duties.

In

true

that

this case, if

-5555

Smith had not become pregnant and

taken maternity leave, she

would still be a valued Morse employee.

V.
V.

Conclusion
Conclusion

William James once said that an idea's "validity is

the process

the

of its valid-ation."

outcome

employed,

reached in

because

discrimination

this

I disagree

case,

with

but

the

not

employment action

only that

taken against

concur in

the

view of

cases taken by the majority.

plausible that gender was not the

agree

Accordingly, I

process

pregnancy

I think it only

motivation for the adverse

Smith, not "true."

position elimination

can be

And

a defense

in

Title VII cases, not that it will be a defense in every case.

For

me, the

process employed

in reaching

a result,

which

includes the hypotheticals drawn and examples given, matters.

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