United States Court of Appeals

For the First Circuit

No. 08-1773

PAULA D. CASAMENTO,

Plaintiff, Appellant,

v.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY;

BOSTON CARMEN'S UNION, LOCAL 589,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

 Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Scott A. Lathrop with whom Scott A. Lathrop & Associates was

on brief for appellant.

Kevin S. McDermott, Assistant General Counsel, MBTA Law

Department, for appellee Massachusetts Bay Transportation

Authority.

John F. McMahon with whom Angoff, Goldman, Manning, Wanger &

Hynes, P.C. was on brief for appellee Boston Carmen's Union, Local

589.

December 16, 2008
-2-

Per Curiam. Paula D. Casamento appeals from the judgment

of the district court in her law suit against her employer, the

Massachusetts Bay Transportation Authority ("MBTA"), and her union,

Boston Carmen's Union, Local 589 ("Local 589"). The central claim

is one of gender discrimination. Most of the relevant facts are

undisputed and easily recited.

Casamento was hired by the MBTA as a bus driver in the

winter of 1984 and became a member of Local 589. In 1997, due to

medical problems precluding her from driving a bus, Casamento moved

to a position in the MBTA's revenue collection department. On

October 22, 2002, the MBTA posted a notice that a managerial

position--Supervisor of Revenue Sales Operations--was available to

be filled, and Casamento applied.

Ten other applicants sought the position including one

other woman. On June 23, 2003, before anyone was interviewed,

Susan Wolfson, the MBTA's Director of Revenue, informed all the

applicants that the posting of the job was rescinded. The stated

reasons for the position not being filled were primarily budget

constraints and because a new automated fare system might affect

staffing requirements. 

In July 2003, Casamento complained that contrary to

Wolfson's announcement, a co-worker, Ralph Schlueter, had in fact

been awarded the advertised position. Casamento was told that

Schlueter had not been given the position but remained in the same
-3-

post he had filled within the Revenue Department for the prior

thirteen years. Unconvinced, Casamento filed a grievance with

Local 589 alleging gender discrimination.

The union declined to act, saying (among other things)

that the supervisor job sought by Casamento was not part of Local

589's bargaining unit. Casamento then filed a charge of gender

discrimination against the MBTA with the Massachusetts Commission

Against Discrimination ("MCAD"), which dismissed the charge,

finding no evidence to support it. Casamento also filed claims

against both the MBTA and Local 589 before the Equal Employment

Opportunity Commission, which granted her a right to sue letter. 

Casamento then filed the present law suit. The

complaint, as amended, charged both the MBTA and the union with

gender discrimination in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e (2000) et seq. In due course, the

district court granted summary judgment for defendants: even

positing that Casamento had made out a prima facie case warranting

an explanation by defendants, McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973), the court ultimately found no evidence of

gender discrimination.

Casamento now seeks review. In Casamento's favor is the

fact that the district judge refused to decide on summary judgment

whether Schleuter was in fact performing the duties of the

previously posted position; this may have been properly cautious
-4-

since the MBTA said that Schleuter's own longstanding job covered

some of the same duties as the posted position, although it said

that his pay and title had not been changed after the job listing

was rescinded and that he continued in his original position.

In all events, a prima facie case is merely a mechanical

showing that requires the employer (or, arguably, the union) to

come forward with an explanation for its decision--which both the

MBTA and union did. At this point, "the presumption raised by the

prima facie case is rebutted,” Tex. Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248, 255 (1981), and “drops from the case,” id.,

at 255 n.10, and it is up to the complainant to show that a

forbidden motive was at work. St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 508 (1993). To reach a jury, there must be evidence that

would permit a jury to so conclude. Id.

Here, there was no evidence that gender discrimination

motivated the MBTA's action. Whether or not Schlueter was already

performing some of the functions of the advertised job and whether

or not this played a role in the MBTA's decision to rescind the

position, no evidence suggested that the posting was withdrawn

because of gender discrimination; indeed, nothing directly

contradicts the MBTA's original claim that budget concerns and the

advent of automatic fare collection made it reasonable not to go

forward with a new management appointment at that time.
-5-

Nor does it furnish evidence of gender discrimination to

assume (as the district judge admittedly did) that the MBTA's

explanation could be regarded as "pretext" if Schlueter were now

occupying the posted job. Possibly in some contexts a showing of

a false explanation can add weight to a discrimination claim

supported by evidence; but it is hard to imagine such a case where

there is no evidence of a discriminatory motive in the first place;

and, if an exception to this generalization can possibly be

imagined, it is certainly not this case.

The case against the union is equally hopeless. In

addition to its proscription against gender discrimination by

employers, Title VII renders it unlawful for "a labor organization

. . . to discriminate against[] any individual because of . . .

sex." 42 U.S.C. § 2000e-2(c)(1). A union will be found to have

violated Title VII when "it deliberately declines to pursue a

member's claim because of the member's gender." Beck v. United

Food & Comm. Workers Union, Local 99, 506 F.3d 874, 882 (9th Cir.

2007).

Once again, there is no evidence in this case of gender

discrimination. The union explained its refusal to pursue a

grievance on behalf of Casamento, giving colorable reasons entirely

unrelated to the fact that she is a woman. Nothing to which

Casamento points suggests that its given reasons were false, let

alone that the true underlying reason was gender discrimination on
-6-

the part of the union. No court could send such a case to trial

because there was nothing to be tried.

Affirmed.