United States Court of Appeals

For the First Circuit

No. 02-1693

ARMANDO VESPRINI,

Plaintiff, Appellant,

v.

SHAW CONTRACT FLOORING SERVICES, INC.,

AND SHAW INDUSTRIES, INC.,

Defendants, Appellees.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

 

Before

Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

 

Richard L. Yospin for appellant.

Allison K. Romantz, with whom Robert P. Joy, Maura D.

McLaughlin, and Morgan, Brown & Joy, LLP, were on brief for

appellees.

 

December 30, 2002

 
1Summary judgment rulings are reviewed de novo, after

assessing all the competent evidence and its attendant reasonable

inferences in the light most favorable to the nonmoving party,

viz., Vesprini. Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 (1st

Cir. 2002).

2

CYR, Senior Circuit Judge. Appellant Armando Vesprini

challenges various summary judgment rulings which led to the

dismissal of his age-discrimination, breach-of-contract, and

constructive-discharge claims against his former employers, Shaw

Contract Flooring Services, Inc. ("SCFSI") and Shaw Industries,

Inc. ("Shaw").

I

BACKGROUND

Circle Floors, Inc., a Massachusetts-based flooring

retailer and installer, was founded by Vesprini in 1960.1 In April

1997, after serving as its president for thirty-seven years, the

seventy-one-year-old Vesprini, as well as his son Michael, sold

their Circle Floors, Inc. stock to Shaw, a Georgia-based

corporation. In addition, Vesprini entered into a three-year

contract to remain on as the president of Circle Floors. At about

the same time, Shaw acquired Continental Carpets, another

Massachusetts flooring company, which directly competed with Circle

Floors.

A few months later, in October 1997, Vesprini executed a

"Standards of Ethical Conduct Agreement." The agreement

specifically prescribed that Vesprini's "use of vulgar or
3

unprofessional language on company premises or at any time while

engaged in the performance of company duties [was to be] strictly

prohibited," and that "failure to abide by this Agreement may be

grounds for . . . termination . . . without any further notice and

without any requirement of progressive discipline."

Thereafter, Shaw hired forty-one-year-old Scott Mahan to

investigate whether Circle Floors and Continental Carpets were

continuing to compete for the same clientele. In due course, Mahan

reported that there remained a significant overlap. Whereupon,

after consulting with Vesprini, Shaw decided to consolidate its

Massachusetts operations, including Circle Floors and Continental

Carpets, into a single corporate entity (viz., "SCFSI"). Scott

Mahan was named as its president. 

Vesprini suspected that Shaw was replacing him as the

Circle Floors president, due to his age. Additionally, Vesprini's

immediate supervisor, Jay Houston, advised Vesprini that he was

"not going to be [with Shaw] much longer," that the time had come

to "step back and let the young stallions run the [day-to-day]

business," but that Vesprini nevertheless would serve as Circle

Floors' "chief executive officer" and as a "mentor" to both Mahan

and Vesprini's son, Michael.

Shortly thereafter, upon being pressed by Vesprini,

Houston gave Vesprini assurances that he remained "the boss." In

reliance upon the Houston assurance, Vesprini withheld any
4

objection to Mahan's appointment as the president of SCFSI, because

he believed that he was to retain the ultimate decisionmaking

authority as to all business decisions relating to the "Circle

Floors" division of SCFSI.

By December 1997, however, after Vesprini had come to the

realization that Mahan had taken over virtually all the day-to-day

operations of the merged companies, Vesprini transmitted a

memorandum to Mahan requesting that he be copied on all important

correspondence. Mahan simply ignored the request. Instead, Mahan

informed Vesprini: "[Y]ou don't know how to run the business."

and "[You are not] going to be here much longer." Mahan added that

Vesprini should go play golf in Florida. Finally, Mahan maintained

that Houston was not telling the truth when he gave the assurance

that Vesprini would remain the "boss."

At a January 1998 meeting, Hal Long, Shaw's executive

vice president, unequivocally advised Vesprini that Mahan was now

his boss. Vesprini in turn advised Long that he intended to

consult an attorney. In a follow-up letter, Houston informed

Vesprini that Shaw intended to "relieve[] [Vesprini] of some of the

more mundane operational responsibilities [in order that] [Vesprini

would] have the time to become a needed mentor to both Scott

[Mahan] and Michael [Vesprini]."

SCFSI moved into new and more spacious corporate office

quarters in June 1999. Vesprini regarded the small, windowless
2Ritzell asserted that Vesprini stated, among other things:

"[G]et off your f---ing ass"; Ritzell "should be in that f---ing

estimating department" drumming up business, instead of planning

his office decor; Ritzell is "full of bull----," and Mahan is a "f-

--ing ---hole."

5

office assigned to him "[in]consistent with an office for a chief

executive officer." Moreover, every employee except Vesprini was

issued a new company business card. 

On October 27, 1999, while Mahan was absent on extended

sick leave, Paul Ritzel, director of operations, and Suzanne

Grubis, a sales manager, overheard a conversation between Vesprini

and his son, during which the senior Vesprini loudly proclaimed

that "Suzanne Grubis is going to f--- you," apparently referring to

a reassignment of an important sales account from Vesprini's son to

Grubis. Ritzel and Grubis immediately confronted Vesprini

regarding this crude remark, at which point Vesprini admittedly

"lost his cool," and once again resorted to profanity.2

The October 1997 Standards of Ethical Conduct Agreement

empowered Shaw immediately to terminate Vesprini's employment due

to these profane outbursts. Shaw nevertheless permitted Vesprini

to remain until his three-year employment contract expired in April

2000, with full salary and benefits, on the condition that Vesprini

not enter the corporate offices without prior permission from

Houston, and that Vesprini remain available to provide business

advice to Shaw as required.

After submitting, then withdrawing, his complaint before
6

the Massachusetts Commission Against Discrimination (MCAD),

Vesprini proceeded to lodge a three-count complaint in the

Commonwealth courts, which Shaw subsequently removed to the United

States District Court for the District of Massachusetts. The

complaint alleged that the above-described actions taken by Shaw

(i) violated the Age Discrimination in Employment Act (ADEA), 29

U.S.C. § 621 et seq., as well as its Commonwealth counterpart,

Mass. Gen. Laws ch. 151B, § 1 et seq.; (ii) breached the employment

contract; and (iii) constituted a constructive discharge, all of

which resulted in emotional distress and the loss of annual

incentive bonuses.

The district court ruled that even though Vesprini had

adduced “direct evidence” of Shaw’s age-based animus, no rational

factfinder could determine either that any such animus constituted

a precipitating factor in Shaw's employment decisions, or that

Shaw’s alleged breach of the employment contract had occasioned the

loss of any bonuses to Vesprini. Vesprini v. Shaw Indus., Inc.,

221 F. Supp. 2d 44, 60, 61-62 (D. Mass. 2002).

II

DISCUSSION

A. “Mixed Motives”

Vesprini contends on appeal that the summary judgment

ruling was unwarranted, since he generated a trialworthy factual

dispute — as to whether the defendants had discriminated on the
3In the district court, Vesprini engaged both the Price

Waterhouse and McDonnell Douglas standards of proof. See infra

Section II.B; Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572,

581 (1st Cir. 1999) (noting that plaintiff "may elect to proceed

simultaneously on both fronts” and "the trial court, at an

appropriate stage of the litigation, will channel the case into one

format or the other”).

7

basis of his age — simply by establishing, inter alia, the remarks

made by Houston and Mahan in 1997 regarding his age pursuant to the

“mixed-motive” standard of proof, see Price Waterhouse v. Hopkins,

490 U.S. 228, 266-67 (1989) (O’Connor, J., concurring). Under this

standard:

When a[n] [employee] presents direct evidence

of age discrimination, the [employer] must

then either "deny the validity or the

sufficiency of the [employee’s] evidence," and

"[have] the jury . . . decide[] whether the

[employee] has proved discrimination by a

preponderance of the evidence," or "prove that

it would have made the same decision even if

it had not taken the protected characteristic

into account."

Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 429 (1st Cir.

2000) (emphasis added; citations omitted).3

As Vesprini adduced no competent “direct evidence” of

Shaw’s age-based animus, however, he failed to generate any

trialworthy issue of fact enabling him to invoke the Price

Waterhouse paradigm. Although its exact contours remain somewhat

murky, the term “direct evidence” normally contemplates only those

"‘statements by a decisionmaker that directly reflect the alleged

animus and bear squarely on the contested employment decision.’"
4Vesprini further contends that the district court should have

permitted him to recover for all the allegedly discriminatory acts,

see Vesprini, 221 F. Supp. 2d at 53-54, even those which occurred

more than 300 days prior to the MCAD discrimination charge (e.g.,

Mahan’s appointment as Circle Floor’s de facto president). On the

contrary, such “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely

filed charges. Each discrete discriminatory act starts a new clock

for filing charges alleging that act.” Nat’l R.R. Passenger Corp.

v. Morgan, 122 S. Ct. 2061, 2072 (2002). Nevertheless, Vesprini

may use "the[se] prior [time-barred] acts as background evidence in

support of [any] timely claim.” Id. (emphasis added).

Furthermore, we must reject Vesprini's contention that the

June 1999 actions, assigning him to a “small” office and failing to

order new business cards for him — though within the 300-day

limitations period — were discrete, actionable “adverse employment

actions” under the ADEA. Vesprini admitted that (i) Shaw consulted

him, prior to relocating SCFSI’s corporate headquarters, to

determine whether he wished to prescribe any specifications in

regard to his new office assignment, (ii) he elected to state no

preferences, and (iii) he never complained afterwards. Moreover,

deeming the “business card” matter a mere “oversight,” Vesprini

lodged no complaint with Shaw. See, e.g., Marrero v. Goya of P.R.,

Inc., 304 F.3d 7, 25 (1st Cir. 2002) (noting that minor changes in

employment conditions are not materially adverse where, inter alia,

employee never saw fit to complain to employer).

8

Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 35 (1st

Cir. 2001) (quoting Febres v. Challenger Caribbean Corp., 214 F.3d

57, 60-61 (1st Cir. 2000)) (emphasis added). There were nonesuch

in the present case.

First, the remarks by Houston and Mahan were made some

one and one-half to two years before Shaw’s November 1999 decision

to exclude Vesprini from its business premises.4 The lack of

temporal proximity between these remarks and the ensuing

disciplinary action by Shaw severely undermines the reasonableness

of any inference that there existed a causal relationship between
5See, e.g., Kirk v. Hitchcock Clinic, 261 F.3d 75, 78 (1st

Cir. 2001) (finding that employer’s 1996 remarks, made in

connection with earlier time-barred discriminatory decision, were

not “direct evidence” relevant to a 1997 employment decision); see

also, e.g., Armbruster v. Unisys Corp., 32 F.3d 768, 779 (3d Cir.

1994) (finding remarks “too remote in time” to constitute “direct

evidence”); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 611 (7th

Cir. 2001) (noting that “temporal proximity is often crucial to the

[direct-evidence] inquiry,” and that two-year lapse between remark

and employment decision “defeat[s] the inference of a ‘causal nexus

between the remark and decision to discharge’”)(citations omitted);

Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000)

(same, remarks “two years prior to [employee’s] discharge”); Yates

v. Douglas, 255 F.3d 546, 549 (8th Cir. 2001) (same, remarks “one

to two years” before termination); Scott v. Suncoast Beverage Sales

Ltd., PMBA, 295 F.3d 1223, 1227-28 (11th Cir. 2002) (same, remarks

“two and one-half years before the termination”).

9

the remarks and the subsequent decisionmaking by Shaw. See AyalaGerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1st Cir.

1996).5

Second, the comments made by Houston did not

unambiguously display an age-based animus. Instead, Houston simply

observed a fact of life: since Vesprini was “not going to be [with

Shaw] much longer,” the time had come for Vesprini (i) to "step

back and let the young stallions run the [day-to-day] business,”

and (ii) to mentor Scott Mahan and Michael Vesprini as the next

generation of Shaw executives. See, e.g., Birkbeck v. Marvel

Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994) (holding that

the statement, made two years prior to adverse employment action,

that “there comes a time when we all have to make way for younger

people,” did not create an inference of age discrimination, given

that it was stated as a “‘truism’ with no disparaging overtones”)
10

(citation omitted); see also EEOC v. Tex. Instruments, Inc., 100

F.3d 1173, 1181-82 (5th Cir. 1996) (same). As Houston himself was

fifty-seven years of age at the time he made these remarks, see 29

U.S.C. § 631(a) (defining the ADEA protected class as persons over

forty years of age), it is just as likely that his commiserative

statements to Vesprini simply reflected his “non-actionable

reflection on generational passage.” Birkbeck, 30 F.3d at 512

(discounting comparable remarks by fifty-two-year-old supervisor).

Thus, the remarks made by Houston are reasonably susceptible to an

entirely benign connotation, neither implausible nor

discriminatory. Such inherently ambiguous assertions normally do

not constitute “direct evidence” of an age-based animus. See

Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 583 (1st Cir.

1999). 

Third, although the Mahan comments, arguably at least,

may imply something more in the way of an age-based antagonism than

do the statements made by Houston, see supra Section I (e.g.,

suggesting that Vesprini was incompetent at business and should

play golf instead), Vesprini adduced no evidence that Mahan was

involved in the November 1999 decision by Shaw to exclude Vesprini

from its workplace. At that time Mahan was on administrative leave

and Houston was the decisionmaker of record. Comments by nondecisionmakers, such as Mahan, normally are not “direct evidence”

of age-based animus. See Melendez-Arroyo, 273 F.3d at 35.
11

B. Pretext

As the remarks made by Houston and Mahan are

insufficiently probative to constitute “direct evidence” of any

age-based animus on the part of Shaw, we need not consider whether

or not their remarks established a prima facie case for purposes of

the alternative evidentiary model outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973). See supra note 3.

Even assuming, arguendo, that the Rule 56 proffer by Vesprini

contained sufficient circumstantial evidence to establish a prima

facie case of age discrimination, the burden of production simply

shifted to Shaw to articulate a nondiscriminatory reason for its

November 1999 employment decision. See Melendez-Arroyo, 273 F.3d

at 33. Shaw abundantly met its limited burden of production with

its explanation that Vesprini’s repeated use of profanity on

October 27, 1999, not only warranted expulsion from the workplace,

but directly contravened the "Standards of Ethical Conduct

Agreement” signed by Vesprini, thus explicitly empowering Shaw to

terminate Vesprini on the spot, without first resorting to any form

of progressive discipline. At that juncture, of course, it became

incumbent upon Vesprini to bear the burden of establishing that the

nondiscriminatory reason relied upon by Shaw was pretextual and

that the challenged employment action was motivated by an age-based

animus. See id. Vesprini failed to meet the burden of proof.

The Rule 56 proffer by Shaw describes, in lurid detail,
6Similarly, the district court orders dismissing the breachof-contract and constructive-discharge claims must be affirmed as

well. Not only did the expulsion of Vesprini from the workplace

offend no provision in the Employment Agreement, but the parties

explicitly contemplated that very prospect in the Standards of

Ethical Conduct Agreement. Moreover, given that Vesprini never

resigned, but instead fulfilled the remaining term of the threeyear employment contract, no constructive-discharge claim survived.

See Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 704 (1st Cir.

1993).

12

the profane language used by Vesprini in the workplace. See supra

note 2. Although Vesprini assertedly recalls using much milder

epithets (e.g., "son of a gun” and "God damn”), he nevertheless

concedes that he very well may have used the harsher and more

offensive profanities ascribed to him. Consequently, he has failed

to establish that the asserted basis for Shaw's decision to bar him

from its workplace was pretextual.6

Accordingly, the district court judgment is AFFIRMED.