Smith v. F.W. Morse Co., Inc.
Case Date: 02/12/1996
Court: United States Court of Appeals
Docket No: 95-1556
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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, line 15, change "(1st Cir. 1995)" to "(1st Cir. 1996)" 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, with whom Edmond J. Ford, Eileen L. __________________ ________________ __________ Koehler, and 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, Circuit Judge. In this appeal, the plaintiff SELYA, Circuit Judge. _____________ invites us to overrule the district court's adverse decision under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17 (1988) (Title VII), and to reinstate her common law causes of action for breach of contract and wrongful discharge. We decline the invitation in all its aspects. I. BACKGROUND I. BACKGROUND We chronicle the events that preceded the filing of suit and then recount what transpired thereafter. A. Chronology of Events. A. Chronology of Events. ____________________ Damar Plastics & Metal Fabricators, Inc. (Damar) operated a job shop in Somersworth, New Hampshire, where it crafted custom components for high-technology applications. Plaintiff-appellant Kathy Smith joined Damar in 1976 and advanced steadily through the ranks until she reached the position of production manager almost a decade later. In that capacity, Smith scheduled production runs and coordinated delivery dates. In late 1987, after an imbroglio with Darrol Robinson (Damar's owner and general manager), she requested and obtained reassignment to a different post having no responsibility for production scheduling. On December 23, 1988, defendant-appellee F.W. Morse & Co., Inc. (Morse), a firm owned by Chris Bond, acquired Damar's business and assets. Damar then had fewer than forty employees, including seven managers reporting directly to Robinson: Michael Hickman (production control); Robert Lane (shipping); Ronald 3 Paradis (production/machining); Marc Shevenell (production/sheet metal); Gary Bickford (engineering); Michael Seeger (sales); and Smith. Though not titled, Smith testified that she was considered to be a de facto manager who, largely because of Hickman's inadequacies, performed many of the duties of the production control manager. Bond promptly concluded that Damar had too many chiefs and too few Indians. Within days of the closing, he fired Hickman. Then, in concert with Maryann Guimond, the new general manager (who had authority to hire, fire, and discipline personnel), he interviewed a number of employees, including Smith. In the aftermath of this review, the company cashiered Lane. To fill the void created by the 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 told, Morse's initial reorganization efforts substituted Guimond for Robinson and pared second-echelon management from seven to five. In addition to Guimond, the reconfigured management team comprised Paradis (machining); Shevenell (sheet metal); Bickford (engineering); Seeger (sales); and Smith (materials). In recognition of Smith's increased responsibilities, Morse twice hiked her pay (once in January and again in March), thus increasing her weekly stipend by roughly twenty-five percent. 4 At about the time of the takeover, Smith informed Bond that she had become pregnant and would need a maternity leave. Morse, a tiny company, had no formal maternity leave policy. Bond nonetheless honored Smith's request and assured her that her position was "secure." In preparation for her leave, Smith held several meetings with Guimond, Shevenell, and Paradis. The company temporarily distributed her managerial duties among other supervisors and arranged for a newly-hired secretary, Kelly Gilday, to perform her clerical functions. Along the way, Guimond informed Smith that either Paradis or Shevenell likely would be discharged, and told her that she would be promoted again upon her return from maternity leave. Guimond also indicated that, in all probability, Bickford would be demoted, and Smith would be asked to assume a portion of his duties. While these changes presumably would warrant increased remuneration, Guimond did not mention an amount. On April 7, 1989, Smith began her maternity leave, planning to return to work in approximately six weeks. She gave birth two weeks later. Meanwhile, Guimond, expecting the "sky to fall," held 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 May 1 and informed Guimond that she wished to return to work one week earlier than ____________________ 1During this same time frame, the company eliminated the engineering manager's position. However, Bickford remained with Morse in a lesser capacity. 5 originally anticipated. Guimond inquired about whether Smith desired more children, and Smith replied affirmatively. The following day, Guimond queried Karen Vendasi, Smith's sister and co-worker, 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. Smith contacted Guimond and demanded an explanation. Guimond denied any knowledge of the rumors, dismissed them as idle buzznacking, and again assured Smith that her job was secure. Guimond repeated these assurances during a chance meeting on May 4. A few days later, Guimond concluded that the materials manager's position was superfluous and decided to eliminate it. She told Smith of her decision on May 11. During this telephone conversation, Guimond asked Smith if she preferred people to be told that she had decided to stay at home with her infant child rather than that she had been discharged. Smith rejected the suggestion. Nevertheless, a Morse employee repeated this canard to several customers.2 Following Smith's severance, Guimond gave most of her duties to Paradis in his new capacity as operations manager. Shevenell assumed the role of manufacturing manager (in charge of both machining and sheet metal work). Guimond also promoted two lower-ranking employees, Peter Lapanne and Brian Hoffman, to assistant manager positions (though evidence adduced at trial ____________________ 2The company reprimanded the employee and trial testimony tended to establish that Morse had not authorized the comments. 6 demonstrated that Lapanne had been an assistant manager as far back as 1984, and that neither man assumed any new responsibilities or received any salary increase in connection with his new title). Gilday continued to perform the clerical functions associated with Smith's former position. When the second round of the reorganization wound down, the plant had three second-echelon managers Paradis (operations); Shevenell (manufacturing); and Seeger (sales) in lieu of the original seven. B. Procedural History. B. Procedural History. __________________ Smith sued Morse in a New Hampshire state court alleging, inter alia, wrongful discharge based on gender _____ ____ discrimination, intentional infliction of emotional distress, and breach of contract. Morse removed the case to federal district court on the ground that Smith's claim "arose under" Title VII, thus prompting federal question jurisdiction. See 28 U.S.C. ___ 1331, 1343(c)(3), 1441, 1446; see also 28 U.S.C. 1367 ___ ____ (conferring ancillary jurisdiction over appended nonfederal claims). Smith thereafter filed an amended complaint that made her Title VII claim explicit. Early in the proceedings, Morse moved for partial summary judgment. The district court (Stahl, J.) granted the motion on the common law wrongful discharge and emotional distress claims. See 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 7 the Title VII claim to the bench (McAuliffe, J.) and the breach of contract claim to a jury.3 At the close of the plaintiff's case, the district court entered judgment as a matter of law in the defendant's favor on the breach of contract claim and disbanded the jury. The Title VII case proceeded before the district judge. Morse asserted that it scrapped the materials manager's position and laid off the appellant as part of an overarching strategy to streamline a top-heavy 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 and entered judgment accordingly. See ___ Smith v. F.W. Morse & Co., 901 F. Supp. 40, 45 (D.N.H. 1995) _____ _________________ (Smith II). This appeal ensued. ________ II. THE TITLE VII CLAIM II. THE TITLE VII CLAIM The crown jewel of the appellant's asseverational array is her contention that the district court erred in finding that Morse did not discriminate against her on the basis of her sex. Our appraisal of this contention is in three parts. A. Standard of Review. A. Standard of Review. __________________ Following a bench trial, the court of appeals reviews ____________________ 3The Civil Rights Act of 1991, Pub. L. 102-166, 102, 105 Stat. 1071, 1073 (1991) (codified at 42 U.S.C. 1981a(c)(1)), authorizes trial by jury in Title VII cases. Since the events that form the basis of the appellant's claim occurred prior to the effective date of the 1991 Act, she had no right to a jury trial on her Title VII claim. See Landgraf v. USI Film Prods., ___ ________ ________________ Inc., 114 S. Ct. 1483, 1487 (1994) (holding that the 1991 Act is ____ not retroactive). By like token, the Price Waterhouse framework ________________ for proof of "mixed-motive" discrimination that we describe in Part II(B), infra, is somewhat changed under the 1991 Act. See _____ ___ Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995). ______ ______ 8 the trier's factual determinations for clear error, see Cumpiano ___ ________ v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Fed. ____________________ R. Civ. P. 52(a), but affords plenary review to the trier's formulation of applicable legal rules, see Johnson v. Watts ___ _______ _____ Regulator Co., 63 F.3d 1129, 1132 (1st Cir. 1995). The ______________ jurisprudence of clear error constrains us from deciding factual issues anew. See, e.g., Jackson v. Harvard Univ., 900 F.2d 464, ___ ____ _______ _____________ 466 (1st Cir.), cert. denied, 498 U.S. 848 (1990); Keyes v. _____ ______ _____ Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir. 1988). _______________________ Indeed, we may not disturb the district court's record-rooted findings of fact unless on the whole of the evidence we reach the irresistible conclusion that a mistake has been made. See ___ Cumpiano, 902 F.2d at 152; RCI Northeast Servs. Div. v. Boston ________ __________________________ ______ Edison Co., 822 F.2d 199, 203 (1st Cir. 1987). __________ This deferential standard extends not only to factual findings simpliciter but also to inferences drawn from the underlying facts. See Cumpiano, 902 F.2d at 152. Similarly, ___ ________ findings regarding an actor's motivation fall within the shelter of Rule 52(a), and, therefore, if the trial court's reading of the record on such an issue is plausible, appellate review is at an end. See Foster v. Dalton,71 F.3d 52, 56-57 (1st Cir. 1995); ___ ______ ______ Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991). _______ _______ B. The Jurisprudence of Title VII. B. The Jurisprudence of Title VII. ______________________________ Title VII provides, inter alia, that it is an unlawful _____ ____ employment practice for an employer to discharge an individual because of her sex. See 42 U.S.C. 2000e-2(a)(1). After the ___ 9 Supreme Court held that this phraseology did not proscribe discrimination on the basis of pregnancy, see General Elec. Co. ___ _________________ v. Gilbert, 429 U.S. 125, 145-46 (1976), Congress augmented Title _______ VII by enacting the Pregnancy Discrimination Act of 1978 (PDA), Pub. L. 95-555, 1, 92 Stat. 2076, 2076 (1978) (codified at 42 U.S.C. 2000e(k)). The PDA made clear that: The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all 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. 2000e(k). Thus, at the time Smith and Morse parted company, Title VII's ban on gender discrimination encompassed pregnancy-based discrimination. Like other Title VII plaintiffs, an employee claiming discrimination on the basis of pregnancy may proceed under either a disparate treatment or a disparate impact theory. See ___ generally Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579- _________ ____________________ ______ 80 (1978) (explaining the dichotomy). Here, the appellant alleged disparate treatment. Consequently, she had the burden of proving that the defendant purposefully terminated her employment because of her pregnancy. In cases predating the Civil Rights Act of 1991, see ___ supra note 3, the framework for proving intentional _____ discrimination varies depending on the availability of direct 10 evidence. See Fields v. Clark Univ., 966 F.2d 49, 51-52 (1st ___ ______ ___________ Cir. 1992), cert. denied, 113 S. Ct. 976 (1993); Cumpiano, 902 _____ ______ ________ F.2d at 153. Absent the evidentiary equivalent of a "smoking gun," the plaintiff must attempt to prove her case by resort to a burden-shifting framework. See Texas Dep't of Community Affairs ___ ________________________________ v. Burdine, 450 U.S. 248, 254-56 (1981); McDonnell Douglas Corp. _______ _______________________ v. Green, 411 U.S. 792, 802 (1973). Under this framework, a _____ plaintiff can establish a prima facie case of pregnancy discrimination by showing that (1) she is pregnant (or has indicated an intention to become pregnant), (2) her job performance has been satisfactory, but (3) the employer nonetheless dismissed her from her position (or took some other adverse employment action against her) while (4) continuing to have her duties performed by a comparably qualified person. See, ___ e.g., Cumpiano, 902 F.2d 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 a legitimate, nondiscriminatory motive for the action. See Burdine, 450 U.S. ___ _______ at 254-55; Lipsett, 864 F.2d at 899. If the defendant clears _______ this modest hurdle, the presumption of discrimination vaporizes, see Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. ___ _______ __________________ 1991), cert. denied, 504 U.S. 985 (1992),4 and the plaintiff _____ ______ ____________________ 4Mesnick is a case brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-634, rather than under Title VII. The same burden-shifting framework applies in both 11 (who retains the ultimate burden of persuasion on the issue of discriminatory motive throughout) must then prove that the employer's proffered justification is a pretext for discrimination, see St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. ___ ______________________ _____ 2742, 2749 (1993); Mesnick, 950 F.2d at 823-24. _______ On the relatively rare occasions when a smoking gun is discernible that is, when a plaintiff produces direct evidence that the protected characteristic was a motivating factor in the employment action the McDonnell Douglas framework is ___________________ inapposite. See Fields, 966 F.2d at 52. In those cases, direct ___ ______ evidence of discriminatory motive say, an admission by the employer that it explicitly took actual or anticipated pregnancy into account in reaching an employment decision serves to shift the burden of persuasion from employee to employer. The latter must then affirmatively prove that it would have made the same decision even if it had not taken the protected characteristic into account. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258 ___ ________________ _______ (1989) (plurality op.); id. at 265-67 (O'Connor, J., concurring). ___ The seeming neatness of this dichotomy is illusory in certain respects, for evidence rarely comes in tidy, geometrically precise packages. In many cases, the line between McDonnell Douglas, on one hand, and Price Waterhouse, on the _________________ _________________ other hand, is blurred. In those situations, classification ____________________ instances; therefore, ADEA cases have solid precedential value in Title VII litigation. Hence, we cite herein interchangeably to Title VII and ADEA cases, often without distinguishing between them. 12 depends on both the quantity and quality of the proof that a court deems sufficient to constitute direct evidence of discriminatory animus. Discretion is sometimes the better part of valor, and courts often wisely decide to sidestep difficult theoretical questions if answers to them are not essential to the proper resolution of a given case. We have here a good example of such a prudential approach. The trial court largely bypassed any differential direct evidence/circumstantial evidence tamisage, preferring to go directly to a finding that, on the totality of the evidence presented, Morse had proven that gender discrimination did not trigger the firing. See Smith II, 901 F. ___ ________ Supp. at 44-45. This approach negates any need for us to pursue the question of an analytic framework to a definite conclusion. While we agree with our concurring colleague that the decisional process is important, there comes a point at which slavish insistence upon process for its own sake serves only to exalt the trappings of justice over its substance. Here, the district court's finding on causation, if sustainable, resolves the Title VII claim whether the appellant's prima facie case arises under the McDonnell Douglas or Price Waterhouse paradigm. And as we _________________ _________________ illustrate below, see infra Part III(C), that finding passes ___ _____ muster. C. The Merits. C. The Merits. __________ Consistent with the district court's approach, Morse must be assumed to have had the burden of proving that it would 13 have taken the same action the elimination of the materials manager's position whether or not the appellant became pregnant, took a maternity leave, or planned to bear more children. The court found that Morse carried the devoir of persuasion on this pivotal issue. It concluded that Morse's decision was "motivated by business judgment and represented an effort to economize by placing the most qualified personnel in the fewest number of managerial positions possible, and was not based on plaintiff's gender, pregnancy, or her expressed desire to have more children." Smith II, 901 F. Supp. at 44. The court ________ also concluded "that even if Guimond is assumed to have considered impermissible gender-based factors, the same decision to eliminate plaintiff's position would still have been made at the same 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 eliminate positions during the course of a downsizing without 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. denied, 114 S. Ct. 1398 (1994); _____ ______ Goldman v. First Nat'l Bank, 985 F.2d 1113, 1118-19 (1st Cir. _______ _________________ 1993); Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, _______ ______________________________ 105, 107 (2d Cir. 1989); Dister v. Continental Group, Inc., 859 ______ ________________________ F.2d 1108, 1115 (2d Cir. 1988); Pearlstein v Staten Island Univ. __________ ___________________ Hosp., 886 F. Supp. 260, 268-69 (E.D.N.Y. 1995). This is merely _____ 14 a reflection of a central theme that permeates the relevant jurisprudence: insofar as Title VII is concerned, an employer can hire or fire one employee instead of another for any reason, fair or unfair, provided that the employer's choice is not driven by race, gender, pregnancy, or some other protected characteristic. See Foster, 71 F.3d at 56; Keyes, 853 F.2d at ___ ______ _____ 1026; see also Freeman v. Package Mach. Co., 865 F.2d 1331, 1341 ___ ____ _______ _________________ (1st Cir. 1988) (elucidating similar proposition in ADEA case). The flip side of the coin, however, is that an employer who selectively cleans house cannot hide behind convenient euphemisms such as "downsizing" or "streamlining." Whether or not trimming the fat from a company's organizational chart is a prudent practice in a particular business environment, the employer's decision to eliminate specific positions must not be tainted by a discriminatory animus. See Goldman, 985 F.2d at 1118 n.4; ___ _______ Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992); _______ ________________ Mesnick, 950 F.2d at 825; Pearlstein, 886 F. Supp. at 268-69. _______ __________ Against this backdrop, we believe that the evidence adequately supports the trial court's findings. When Morse took over, Damar had an inordinately high ratio of managers to workers and the managers' responsibilities overlapped.5 Both Bond and Guimond testified that from the very start they believed that Damar's sprawling organizational structure defied rhyme or reason. Accordingly, they set out to compress some of the ____________________ 5To cite an example, Damar split the responsibility for manufacturing between two 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 matched their stated objective. More to the point, Guimond testified that she terminated the appellant "because I had a position that I no longer felt needed to be filled." Bond testified in the same vein, indicating that he, too, had become convinced that Smith's position was expendable. The court accepted this evidence, concluding that the materials manager's position would have been eliminated within the same time frame whether or not Smith had taken a maternity leave. In our view, this determination, while not inevitable, is supportable. In the first place, the record strongly suggests that, in fact, the position was expendable. In the second place, any other choice would have entailed a loss of engineering expertise that Damar could ill afford.6 In the third place, the court's view is bolstered by the reception that the appellant originally received from the new ownership. Bond and Guimond apprised her of the planned downsizing and assigned her significant new responsibilities when other managers were dismissed. They also promoted her and increased her compensation. These actions, undertaken with full knowledge that the appellant was pregnant and would be taking a six-week maternity leave, are inconsistent with a bias against pregnant ____________________ 6Bond testified that he purchased Damar to acquire its engineering talents. Paradis and Shevenell were highly trained and experienced engineers, while Smith had no such credentials. When Morse discovered that it could function with one less manager, the decision to retain Paradis and Shevenell, and dismiss Smith, seems quite plausible. 16 employees. In the fourth place, the district judge, sitting as the trier of fact, had the right to credit Bond's testimony that the "maternity leave never played a role in itself" because the same decision "would have been made in a very close time frame," and Guimond's testimony to like effect. In a bench trial, such credibility judgments are the judge's prerogative. See Anthony, ___ _______ 952 F.2d at 606. To be sure, the record could support a less innocuous conclusion. The chronal proximity of Guimond's questions anent Smith's plans to have more children and her dismissal, Guimond's ill-advised suggestion that customers and employees be told that Smith decided to stay at home to care for her daughter, and Smith's termination while on maternity leave are troubling so much so that we, if free to write a palimpsest, might have characterized the impetus behind the appellant's ouster differently. But whether the trial court could have drawn an inference of discriminatory intent is not the test. See Foster, ___ ______ 71 F.3d at 55; Keyes, 853 F.2d at 1027. As long as a contrary _____ inference is also supportable and that is the situation here then it is for the trial court, not the court of appeals, to call the tune. After all, "when there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." 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. First, she 17 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.), cert. denied, 498 U.S. 878 ____ _____ ______ (1990). Yet, a position elimination defense is not defeated merely because another employee, already on the payroll, is designated to carry out some or all of the fired employee's duties in addition to his own, or because those duties are otherwise reallocated within the existing work force. See ___ LeBlanc, 6 F.3d at 846; Barnes, 896 F.2d at 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 after Guimond dismissed Smith, the position that Smith had occupied materials manager fell into desuetude. There is no basis in the record for a suggestion that Lapanne or Hoffman assumed any of the appellant's former duties; those 18 duties, which Paradis, Shevenell, and Gilday had performed during Smith's leave, continued to be performed by them (or, at least, by Paradis and Gilday). In short, the second round of the reorganization (which cost Smith her job) bore a striking resemblance to the first round (which gave Smith her promotion to materials manager). Given these facts, the district judge's determination that Morse eliminated 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 applied by the trial court. This is a theoretically sound way to climb the mountain, see, 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 after a bench trial), but in this case the hook does not hold. The appellant's thesis is as follows. She says that Title VII prohibits an employer from dismissing an employee while she is on maternity leave even if the employer, in the process of rationalizing its work force, discovers that her position is 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 firing.7 And the appellant attempts to drive this point home by citing Bond's 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 black-letter legal principle in a totally mechanical fashion, plays mischievously on the mendacity of language by substituting sound for sense. It is settled under Title VII that an employer may not discharge an employee based on the categorical fact of her pregnancy. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, ___ ________________________________________ ____ 462 U.S. 669, 684 (1983); Cumpiano, 902 F.2d at 153. By the same ________ token, since a short-term inability to work is bound up with the very nature of pregnancy and childbirth, that disability is a pregnancy-related condition within the meaning of 42 U.S.C. 2000e(k), and Title VII thus prohibits an employer from dismissing an employee in retaliation for taking an authorized maternity leave. Nevertheless, under the PDA, pregnancy does not confer total immunity.8 An employer may discharge an employee ____________________ 7We note in passing that the appellant's reasoning is hopelessly circular. Morse demonstrated a firm 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 this case is brought pursuant to, and is governed by, Title VII. If the recently enacted Family and Medical Leave Act of 1993, P.L. 103-3, 107 Stat. 6 (1993) (codified at 29 U.S.C. 2601-2654) were applicable, a different 20 while she is pregnant if it does so for legitimate reasons unrelated to her pregnancy. See, e.g., Troupe v. May Dept. ___ ____ ______ _________ Stores Co., 20 F.3d 734, 738 (7th Cir. 1994); Pearlstein, 886 F. __________ __________ Supp. at 268-69; see also Lipsett, 864 F.2d at 899 (holding that ___ ____ _______ an employer may dismiss an employee who is in a protected class for a nondiscriminatory reason); Johnson v. Allyn & Bacon, Inc., _______ ___________________ 731 F.2d 64, 70 (1st Cir. 1984) (similar). It follows, then, that an employer may discharge an employee while she is on a pregnancy-induced leave so long as it does so for 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 that an employer bury its head in the sand and struthiously refrain from implementing business judgments simply because they affect a parturient employee. See Troupe, 20 F.3d ___ ______ at 738 (holding that the PDA "requires the employer to ignore an employee's pregnancy, but . . . not her absence from work"); Crnokrak v. Evangelical Health Systems Corp., 819 F. Supp. 737, ________ _________________________________ 743 (N.D. Ill. 1993) (stating that "the PDA does not force employers to pretend that absent employees are present whenever their absences are caused by pregnancy"). At bottom, Title VII requires 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 ordinary slings and arrows that suffuse the workplace every day she goes to work and every day she stays away. Title VII is neither a shield against this broad spectrum of employer actions nor a statutory guaranty of full employment, come what may. Applying the PDA as the appellant asks would eliminate an employer's business necessity defense long recognized under Title VII and cripple industry's ability to manage workers in 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 example, a Jewish employee, in charge of maintaining corporate records, stays home for a week to observe Passover. In her absence, her employer rummages through the file drawers that she maintains in search of a particular memorandum. The employer finds a packet of heroin. The employer would not have had the occasion to look through the file drawers but for the fact that the employee was on religious leave; he would simply have asked the employee for the memo. In such circumstances, we think it is clear that the employer can fire the employee for introducing drugs into the workplace without violating Title VII's ban on religious discrimination. 22 v. Maine, ___ F.3d ___, ___ (1st Cir. 1996) [No. 95-1777, slip _____ op. at 13] (suggesting, in retaliation case, that "[a] contrary rule would mummify the status quo"). Here, the district court found the requisite nexus lacking between the employer's mindset and the employee's gravidity. In the court's estimation, Morse discharged the appellant for nondiscriminatory reasons. The record permits that view of the facts. That the discharge took place while the appellant was on maternity leave possessed considerable evidentiary significance but that circumstance neither transformed the character of the employer's action nor rendered it per se unlawful under Title VII. The district court therefore did not apply an erroneous legal standard. III. THE BREACH OF CONTRACT CLAIM III. THE BREACH OF CONTRACT CLAIM We turn now to the appellant's partially tried breach of contract claim. At the close of her case, the trial court took this claim from the jury and directed a verdict in Morse's favor. The appellant assigns error. A. Standard of Review. A. Standard of Review. __________________ The court of appeals reviews the grant of a motion for judgment as a matter of law de novo, applying the same legal principles that inform the trial court's ruling. See Rolon- ___ ______ Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir. ________ _________________________ 1993). Accordingly, we "examine the evidence and the inferences reasonably extractable therefrom in the light most hospitable to the nonmovant." Fashion House, Inc. v. K Mart Corp., 892 F.2d ____________________ _____________ 23 1076, 1088 (1st Cir. 1989). If the proof, eyed from this standpoint, permits a reasonable factfinder to reach only a conclusion favorable to the movant, then the court must remove the issue from the jury's consideration. See id. ___ ___ While this approach does not allow the court to "consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence," Wagenmann v. _________ Adams, 829 F.2d 196, 200 (1st 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 issue as to which the burden of proof belongs to the objecting party." Fashion House, _____________ 892 F.2d at 1088. B. The Merits. B. The Merits. __________ The parties who concur on very little else agree that New Hampshire law governs the breach of contract claim. Under that law, the at-will status of an employment relationship is "one of prima facie construction." Panto v. Moore Business _____ ______________ Forms, Inc., 547 A.2d 260, 267 (N.H. 1988). That is to say, ____________ unless an employment relationship explicitly provides for a definite duration, it is presumed to be at-will. 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' contract of employment is silent as to its expiration"). This is critically important when an employee challenges her ouster; an employer can give an at-will employee 24 even one who has been a stellar performer her walking papers at any time, for any reason or no reason, unless a statute, a collective bargaining agreement, or 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 employment relationship. See Butler, 629 ___ ______ A.2d at 93; Panto, 547 A.2d at 267. Such a modification _____ sometimes may be accomplished if the employer makes a binding offer that the employee can accept by remaining on the job. See ___ Panto, 547 A.2d at 265. Standard contract formation principles _____ govern the creation and construction of such contracts. See id. ___ ___ at 264. Thus, the "offer must be so definite as to its material terms or require such definite terms in the acceptance that the promises and performances to be rendered by each party are reasonably certain." Chasan v. Village Dist. of Eastman, 523 ______ _________________________ A.2d16, 21 (1986) (quoting Restatement of Contracts 32 (1932)). Definiteness, like beauty, is frequently in the eye of the beholder. At best, it involves matters of degree. In the last analysis, the standard is reasonable certainty, not mathematical precision. See Sawin v. Carr, 323 A.2d 924, 926 ___ _____ ____ (N.H. 1974). The provisions of a contract need only be "sufficiently certain to allow claims of breach to be resolved readily, and to enable a reasonably certain computation of damages." Panto, 547 A.2d at 264 (internal citations omitted); _____ accord Phillips v. Verax Corp., 637 A.2d 906, 910 (N.H. 1994); ______ ________ ___________ 25 Sawin, 323 A.2d at 926. _____ In this instance, the appellant takes bits and pieces of various conversations that she had with Guimond and Bond, pastes them together, and argues that a rational jury, mulling the ensuing patchwork, could conclude that Morse offered to reinstate and promote her followi |