* Of the District of Massachusetts, sitting by designation.



# United States Court of Appeals

For the First Circuit

____________________

No. 01-2284

CHRISTINA WESTON-SMITH,

Plaintiff, Appellant,

v.

COOLEY DICKINSON HOSPITAL, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge ]

____________________

Before

Boudin, Chief Judge

,

Lynch, Circuit Judge

,

and Gertner, * District Judge

.

____________________

Maurice M. Cahillane with whom Egan, Flanagan and Cohen, P.C.

was on brief for appellant.

Guy P. Tully with whom Laurie J. Hurtt and Jackson Lewis

Schnitzler & Krupman were on brief for appellee.

____________________-2- March 12, 2002

____________________ LYNCH, Circuit Judge

. Shortly after Christina WestonSmith returned from her maternity leave in 1998 to her job as

Dire ctor of Peri-Operative Services at Cooley Dickinson

Hosp ital, she was laid off. Based on comments she overheard,

the timing of her dismissal, a comparison of h er credentials

with those of her replacement , and both a hearsay statement

(that her supervisor said to her replacement that Weston-Smith's

leave caused her to lose her job) and her supervisor's silence

in the face of Weston-Smith's accusations, she believed that she

was terminated because of her maternity leave. She brought suit

under Title VII, 42 U.S.C. § 2000e-2 (1994 ), and the antiretaliation provisions of the Family and Medical Leave Act, 29

U.S.C. § 2615 (1994).

The Hospital denied any discrimination or retaliation.

It explained that Weston-Smith was lai d off as part of a

hospital-wide reorganization of management, and that there were

legitimate reasons another employee had been retained instead of

Weston-Smith in the new position. It argued that neither the

alleged statement nor the silence was admissible, because both

were hearsay.-3- On the Hospital's motion for summary judgment, the

district court agreed that all reasonable inferences from the

evidence supported the Hospital’s position, and entered judgment

for the Hospital. Specifically, the court ruled that the

st atement was inadmissible double hearsay, W eston-Smith v.

Cooley Dickinson Hosp., Inc.

, 153 F. Supp. 2d 62, 69 (D. Mass.

2001); that it was doubtful the silence was admissible and that

it certainly did not amount to direct evidence of

discrimination, id. at 69-70; and further that Weston-Smith had

failed to meet her burden to show the Hospital’s explanation was

pretextual, i d. at 73. We affirm; our analysis of the

questions presented on appeal la rgely mirrors that of the

district court’s well-reasoned opinion.

I.

We take th e facts and reasonable inferences in the

light most favorable to Weston-Smith's position. Z apata-Matos

v. Reckitt & Colman, Inc.

, 277 F.3d 40, 42 (1st Cir. 2002). We

sketch only the basic facts; detai ls may be found in the

district court opinion. We give a fuller description only of

the portions of the facts needed for our decision.

Cooley Dickinson Hospital hired Christina Weston-Smith

in A pril 1996 as its Director of Peri-Operative Services; in

that position, she managed the treatment of patients before and-4-

after surgery, as well as the administration of surgical

services themselves. She reported to Donna Bowles, the

Hospital's Vice President of Nursing. Weston-Smith did well at

her job and receive d good, sometimes excellent, performance

evaluations. In April 1998, Weston-Smith took maternity leave,

scheduled to last until Au gust; she returned to her position

part time in May. She testified at deposition that while

working part time, she overheard two doctors complaining about

her inaccessibility during her maternity leave.

In August, after the formal end of Westo n-Smith's

maternity leave, Craig Melin, the Hospital's President and CEO,

met with her. Melin informed Weston-Smith that the Hospital was

eliminating her position a s part of a hospital-wide

reorganization. A new position, Surgical Program Director,

would perform many of the same tasks as well some additional

ones, and woul d report directly to him rather than to Bowles.

Weston-Smith also testified that she was told not to apply for

the new position. After terminating Weston-Smith, Melin offered

the new position to Cathryn Neumann, formerly the Hospital's

Clinical Coordinator and Weston-Smit h's subordinate. Neumann

accepted.

Weston-Smith came to suspect, based on the conversation

that she had overheard between the doctors and on the timing of-5-

her layoff, that Melin's decision was motivated at least in part

by her absence during her maternity leave. According to her

deposition testimony, Neumann told her that Bowles had said that

Weston-Smith's maternity leave had indeed played a part in the

layoff decision. Some time later, Bowles invited Weston-Smith

to lunch. Regarding that lunch, Weston-Smith testified at

deposition:

Donna [B owles] invited me out to lunch at the

Northampton Brewery and I asked h er at that time,

during that luncheon which she invited me to, because

I had a lot of questions, what was going on, why was

I laid off. I asked her about the conversation she

had with Cathy Neumann, about the fact that Cathy had

told me that the reason I was laid off, I mean that,

you know, she had a conversation with Donna about the

conversation that Donna and Cathy had had and that

Cathy had related that information to me and I asked

her about why Donna had said that about the fact that

I had been laid off because of my maternity leave and

when I asked her tha t question, when I asked Donna

that question at that luncheon, she clearly looked

extremely uncomfortable and didn't answer . She sat

there an d turned color, you know, turned bright red

and didn't answer the question, you know, he she [sic]

evaded the iss ue, tried to talk about something

different. I tried to bring her back to that

question, I wanted to have the answer, but she clearly

-- her body language told me that she was well aware

of what I was talking about, but she did not answer

the question in words.

Bowles denied at dep osition that she ever said anything to

Neumann regarding the reasons Weston-Smith was laid off.

Neumann also denied that Bowles ever said anything of this kind,

or that Neum ann ever had a conversation on this topic with1 For a description of the differing requirements adopted

by the circuits for the application of P rice Waterhouse

, see

Fernandes v. Costa Bros. Masonry, Inc. , 199 F.3d 572, 582 (1st

Cir. 1999). For present purposes, we will simply refer to such

cases as those involving "direct evidence."

2 Weston-Smith has alleged claims under both T i tle VII

and the anti-retaliation provis ions of the Family and Medical

Leave Act. The parties have treated the standards under the two

Acts as the same. So do we. To be clear, however, our discussion

of the 1991 amendments to Title VII in the text applies specifically to

that statute and not to the Family and Medical Leave Act.

-6- Weston-Smith. Weston-Smith's own testimony is therefore the

primary evidence that she claims entitles her to a jury trial,

although she also makes other arguments that we address in the

course of this opinion.

II.

We review de novo the district court’s grant of summary

judgment. Zapata-Matos , 277 F.3d at 42.

Some years ago the Supreme Court set up two different

m odels for analysis of employment discrimination cases

,

depending on whether an employee presented direct evidence 1 of

discrimination or relied solely on circumstantial evidence. S ee

Price Waterhouse v. Hopkins

, 490 U.S. 228, 270-78 (1989)

(O'Connor, J., concurring) (describing the direct evidence

model); McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05

(1973) (describing the circumstantial evidence model). Like the

parties, we apply the distinction drawn by these cases. 2 As the-7-

Supreme Court has recently reemphasized, however, the McDonnell

Do uglas framework is a "flexible evidentiary standard" whose

requirements "vary depending on the context"; it is a method for

proving cases rather than the definition of a cause of action.

Swierkiewicz v. Sorema N.A.

, No. 00-1853, 2002 WL 261807, at *4

(U.S. Feb. 26, 2002) (holding that a Title VII plaintiff need

not plead the elements of a McDonnell Douglas prima facie case

to survive a motion to dismiss).

A. Direct Evidence

It is generally to an employee's benefit to show direct

evidence of discrimination rather th an relying on the

inferential model set forth in McDonnell D o uglas

. If an

employee makes a sufficiently strong showing of discrimination

using direct evidence, but the employer responds with a showing

of legitimate reasons for the actions i t took, then the court

may view the employer as having mixed motives -- some

legitimate, some not. Under the 1991 Act amending Title VII,

the employer may then assert an affirmative defense, bearing the

burdens of production and persuasion, that it "would have taken

the same action in the absence of the impermissible motivating

factor." Civil Rights Act of 1991, Pub. L. No. 102-166, § 107,

105 Stat. 1071, 1075-76 (1991), codified at 42 U.S.C. § 2000e5(g)(2)(B). On such a showing in a mixed-motive case, the3 This shift occurs, of course, only if the employee has

persuaded the fact finder that an im permissible motive has

played a part, and the employer is seeking to limit the relief

by showing it also acted from permissibl e motives that would

have led to the same action anyway.

-8- employer may then avoid liabilit y for monetary damages and

reinstatement. But so long as the employee has shown that the

impermissible factor was a motive, even if not the determinative

motive, t he employer will still be subject to declaratory and

limited injunctive relief, as well as attorneys' fees. Id.

Although the 1991 Act is silent on exa ctly what showing is

needed to trigger a mixed-motive case, and so might be read to

leave open the possibility of a mixed-motive analysis following

a sufficiently strong circumstantial showing of discrimination,

many courts require an employee to produce direct evidence that

establishes discrimination was a motive before employing such an

analysis. S ee generally Fernandes v. Costa Bros. Masonry, Inc.

,

199 F.3d 572, 580 (1st Cir. 1999) (citing Price Waterhouse

, 490

U.S. at 277 (O'Connor, J., concurring)).

Employees benefit from presenting such direct evidence

for a number of reasons. First, the sheer strength of the

evidence may carry the day. Second, it increases the chance of

some f orm of relief, including attorneys' fees. Third, it

impose s on the employer the burdens of production and

persuasion, 3 unlike the McDonnell Do uglas model, which merely-9-

shifts to the employer the burden o f producing admissible

evidence to support a non-discriminatory reason for its actions.

Smith v. F.W. Morse & Co.

, 76 F.3d 413, 421 (1st Cir. 1996).

Fourth, it is more difficult, although not impossible, for the

employer to get summary judgment in light of the s trength of

direct evidence and the potential shifting of burdens.

D ominguez-Cruz v. Suttle Caribe, Inc.

, 202 F.3d 424, 429 (1st

Cir. 2000); cf. Swierkiewicz

, 2002 WL 261807, at *3 ("[A]

plaintiff [who] i s able to produce direct evidence of

discrimination

. . . may p r evail without proving all the

elements of a [ McDonnell Douglas ] prima faci e case."). To

obtain these benefits, the employee must " o ffer stronger

evidence . .

. than that needed to establish a prima facie case

un d er" McDonnell Douglas

. I B. Lindemann & P. Grossman,

Employment Discrimination Law 43 (3d ed. 1996).

Much has been written about what is direct evidence.

See i d. at 40 nn.150, 151 (collecting cases). It is easy to

say that there is direct evidence when a decisionmaker says, for

example, "I fired you because you became p regnant and took

maternity leave." But that rarely happens in this world, where

most employers are well aware of the legal consequences of

discrimination. And so employees offer other types of

statements as "direct" evidence. S ee Price Waterhouse

, 490 U.S.4 We have further explained this requirement in

subsequent cases. S ee Febres v. Challenger Caribbean Corp.

, 214

F.3d 57, 61 (1st Cir. 2000) ("Comments which , fairly read,

demonstrate that a decisionmaker made, or intend ed to make,

employm ent decisions based on forbidden criteria constitute

direct evidence of discrimination. The mere fact that a fertile

mind can conjure up some innocent explanation for such a comment

does not undermine its standing as direct evidence." (citation

omitted)). We also note that the statement in F ernandes

,

a lthough not direct evidence, when combined with the o ther

evidence in that case enabled the plaint iffs to reach a jury

under McDonnell Douglas . 199 F.3d at 588-89.

-10- at 272 (O'Connor, J., concurring) (treating as direct evidence

a statement by the relevant decisionmaker that the plaintiff's

"'professional' problems would be solved if she would 'walk more

femininel y, talk more femininely, wear make-up, have her hair

styled, and wear jewelry'").

This circuit has made clear that inherently ambiguous

statements do not qualify as direct evidence. In F ernandes , we

held that the statement "I don't need minorities and I don't

need residents on this job" was ambiguous because in context it

might have reflected "a benign response to a specific inquiry

reflecting [the s peaker's] . . . perception that he no longer

had to make special efforts to comply with EEO requir ements."

199 F.3d at 583. 4 And in S horette v. Rite Aid of Maine, Inc.

,

155 F.3d 8 (1st Cir. 1998), we held a store manager's statement

that the plaintiff in that case had "a perfect case of age

discrimination" did not suffice as direct evidence because there-11-

was insufficient evidence lin king the manager to the actual

decisionmaking process for the statement to be admissible. Id.

at 13-14.

Weston-Smith o ffered as direct evidence at summary

judgment her testimony about both Neumann's statement regarding

Neumann's conversation with Bowles and Bowles's silence at the

lunch wit h Weston-Smith. The district court concluded that

Weston-Smith's testimony about Neumann's supp osed statement

about what Bowles purportedly said is double hearsay and

inadmissible. W eston-Smith

, 153 F. Supp. 2d at 69 . WestonSmith does not challenge that conclusion on appeal. The

appellate issue instead concerns Bowles's silence in the face of

Weston-Smith's accusation that Bowles had made the statement to

Neumann. The district court held it was of doubtful

admissibility and so ambiguous that it could not be considered

direct evidence of discrimination or retaliation. I d. at 69-70.

The court did not, however, fully resolve the question of

admissibility. Id.

This rul ing presents a several-part evidentiary

question. Weston-Smith argues that the underlying statement

--

that Bowles was laid off because of her maternity leave

-- is an

admission, that Bowles is for this purpose an agent of the

Hospital, and that Bowles's failure to respond to Weston-Smith5 Weston-Smith's testimony is almost entirely consistent

that Bowles said nothing in response to Weston-Smith's

questions. She did once, when questioned by counsel for the

Hospital, affirm that Bowles had "said she was sorry ." That

affirmation conflicts with her repeated statements, both earlier

and later, that Bowles's response was "[n]ot in words" or was in

"body language"; that Bowles "chan ge[d] the subject," and

"didn't answer." Even applying the lenient standards of summary

judgment, the only reasonable reading of Weston -Smith's

testimony as a whole is that Bowles remained silent, and we

assess the case on that basis.

-12- when accused of making the statemen t constitutes Bowles's

adoption of that admission -- on behalf of the Hospital -- by

silence. Weston-Smith could not get the statement into evidence

otherwise because Bowles and Neumann deny the encounter. Her

argument presents two questions: whether the statement itself

met the criteria for the admission of a party-opponent, and if

so whether Bowles by her silence adopted that admission at the

lunch with Weston-Smith. 5

We start with the general requirements for a n

admission. For the statement of an employee to be the admission

of a corporate or institut ional employer, it must fit within

su bsection (C) or (D) of Federal Rule of Evidence 801(d)(2),

which reads:

Admission by party-opponent. The statement is offered

against a party and is (A) the party's own statement,

in either an individual or a representative capacity

or (B) a statement of which the party has manifested

an adoption or belief in its truth, or (C) a statement

by a person authorized by the party to make a

statement concerning the subject, or (D) a sta t ement-13- by the party's agent or servant concerning a ma tter

within the scope of the agency or employment, made

during the existence of the relationsh ip, or (E) a

statem ent by a coconspirator of a party during the

course and in furtherance of th e conspiracy. The

contents of the statement shall be considered but are

not alone sufficie nt to establish the declarant's

authority unde r subdivision (C), the agency or

employment relationship and scope thereof under

subdi vision (D), or the existence of the conspiracy

and the participation therein of the declarant and the

party agai nst whom the statement is offered under

subdivision (E).

The statem e nt of an individual defendant may be a direct

admission under subsection (A). Bowles is not a defendant; the

Hospital is. In order for the statement to be an admission,

therefore, Weston-Smith must show through evidence other than

the statement itself either that Bowles was authorize d by the

Hospital to make the statement or that Bowles was the Hospital's

agent and the statement concerned a matter within the scope of

he r employment, made while she was employed. As we discuss

below, she must also show that Bowles adopted the statement

through her silence in the face of Weston-Smith's accusation.

It is undisputed that the relevant decisionmaker in

this case was Melin, the Hospital's Presid ent. It is also

undisputed that Bowles had held the position of Vice President

for Patient Care Services, that her position was eliminated, and

that she became one of the five Program Directors, the Program

Director of Medical Services. Moreover, there was evidence that-14-

Bowles was not at all i nvolved in the decision to lay WestonSmith off: the testimony was that Melin, without discussing the

fat e of specific individuals, told his management team,

including Bowles, a bout the new overall structure he had in

mind; that Melin told her his reasons for putting Neumann into

the new position; and that Bowle s thus learned that WestonSmith's position would be eliminated. Nevertheless, Bowles was

Weston-Smith's direct supervisor, and we do n ot think it is

clear that a statement regarding the reasons for Weston-Smith's

termination would necessarily be outside the scope of her

employment. Even assuming that the matter was within the scope

of Bowles's employment, however, the district court's other

reasons for holding Bowles's silence n ot to amount to direct

evidence are solid.

The distri ct court wrote that it was doubtful that

Bowles's silence could con stitute an adoptive admission, and

that if admissible it did not amount to direct evidenc e

.

Weston-Smith

, 153 F. Supp. 2d at 69-70. Weston-Smith's theory

is that Bowles, by failing to deny the statement that she had

told Neumann that Weston-Smith had been laid off because of her

maternity leave, adopted that statement. S ee generally 2

McCormick on Evide n ce § 262 (J. Strong et al. eds., 5th ed.

1999) (discussing the doctrine of admission by silence). The-15-

trial judge plays a screen ing role in ruling whether a party

(or, as here, its agent) has adopted an admission by silence.

In Vazquez v. Lopez-Rosario

, 134 F.3d 28 (1st Cir. 1998), we

held that "[i]n all [such] cases, the burden is on the proponent

to convince the judge that in the circumstanc es of the case a

f ailure to respond is so unnatural that it supports the

inference that the party acquiesced in the statement." Id. at

35 (quoting Ricciardi v. Childr en's Hosp. Med. Ctr. , 811 F.2d

18, 24 (1st Cir. 1987) (quoting J. Wei nstein & M. Berger,

Weinstein's Evidence § 801 (d)(2)(B)[01], at 801-202 n.15

(1985))). In making the evaluation, the trial judge considers

the nature of the statement, the identity of the person offering

the testimony, the identity of the maker of the statement, the

context, and whether the circumstances as a whole show that the

lack of a denial is so unnatural as to support an inference that

the undenied statement was true.

These circumstances do not meet that standard. It was

a social occasion: Bowles had invited Weston-Smith to lunch.

Weston-Smith testified that during that lunch, she told Bowles

that Neumann had said that Bowles had made the statement to

Neumann. The district court correctly concluded that in context

there might have been a great many reasons why Bowles was silent

on the point and chang ed the subject, and those other reasons6 Further, there is no reason to think that Bowles would

know, even as to her own purported statement, whether the

statement was true as to the reasons for the layoff. Rather,

assuming that she made some statement regarding those reasons,

she might have been engaging in speculation about a matter of

which she had no personal knowledge. This is particularly

plausible because, even on Weston-Smith' s version of events,

Bowles was speaking to Neumann, not to Weston-Smith.

-16- made it far from unnatu ral for Bowles to handle the matter as

she did. Weston-Smith , 153 F. Supp. 2d at 69. We add another:

Bowles could not know what Neumann had or had not said to

Weston-Smith. 6 S ee 5 Weinstein's Federal Evidence

§ 801.31[3][d], at 801-58 (J. McLaughlin ed., 2d ed. 2001) ("[A]

court may find, after evaluating the type of statement and who

made it, that the party could not have been expected to deny it

because the party lacked the information necessary to assess its

truthfulness.") The silence was not an adoptive admission.

Finally, even if the district court, exercising its

discretion, might have concluded that the evidence just barely

met the criteria for admissibili ty, the court was plainly

correct to hold that this was not direct evidence. Its

probative valu e is not sufficiently strong. The reasons why

Bowles did not respond with a vigorous denial were ambiguous at

best, and Bowles was neither involved in the decision nor

necessarily awa re of the reasons Weston-Smith lost her job.

From this conclusion it follows that Weston-Smith must present-17-

her case within the burden-shift ing framework of M cDonnell

Douglas

.

B. McDonnell Douglas

The district court found that Weston-Smith's evidence

did not create a genuine issue of material fa ct as to whether

the Hospital's articulated legitimate reason for the layoff was

a pretext. W eston-Smith

, 153 F. Supp. 2d at 71. The Hospital's

st ated reasons justify both Melin's decision to eliminate

Weston-Smith's original position and his preference for Neumann

over Weston-Smith for the new Surgi cal Program Director

position.-18-

1. The Hospital's reasons

Melin testified as follows. He was responsible both

for creating the new management structure resulting from the

need to cut staff and fo r picking the new Surgical Program

Director. The Hospital lacked the funds to maintain both a new

Surgical Program Director and the Peri-Operative Services

Director, the position Weston-Smith held. Weston-Smith's

maternity leave had, he said, nothing to do with the elimination

of her position. The restructuring affected about 20 jobs,

although this number includes some employees who were rehired in

new positions, as Neumann was. Employees other than WestonSmith were laid off, including a t least one higher in the

organization than she, and other management positions were

eliminated.

After the reorganization, Neumann as the new Surgical

Program Director a ssumed all of Weston-Smith's prior

responsibilities, plus additional ones. Melin had considered

both Weston-Smith and Neumann for the new job, which was in many

ways similar to Weston-Smith's old job. He picked Neumann

because she, in his view, fit better into the upgraded job, now

a part of senior management. Melin thought the difference

between the old job and the new on e was that the old was a

"management role"; the new, a "senior manage ment," or-19-

"leadership," role requiring "leadership and support from the

rest of the organization and a vision for a bigger picture." He

had two primary reasons for select ing Neumann. First, he had

observed Neumann's leadership skills when she served as chair of

the Hospital's successful, recent capital campaign. During that

process

-- which involved asking employees to contribute to the

Hospital's fundraising for a new building even as it laid other

employees off

-- Melin had seen Neumann build loyalty and

morale, and win employee support. Second, he had faced Neumann

at the bargaining table. She had been chair of the nurses'

collective bargaining unit for a number of years; Melin had seen

that she was skilled with budgets and that she could lead. She

won his respect.

2. Weston-Smith's response

Weston-Smith argues that a jury could find these

reasons to be pretext on several grounds. The elimination of

the position to save money, she says, was pretextual because the

new job was really her old one without significant changes.

Moreover, the total number of positions in her department stayed

the same, and the salary of her former job was increased when it

became the Surgical Direct or's job. This argument takes too

myopic a view; overall, several management positio ns were

eliminated, so that the reorganization did save the Hospital-20-

money. That the reorganized jobs encompassed functions of

former jobs is unsurprising. Functions rarely go away; but how

functions are handled does change, and changes can lead to

greater efficiency.

Weston-Smith is correct that an employer may not try

to shield a discriminatory or retaliatory termination by hiding

it in a layoff. S mith v. F.W. Morse & Co.

, 76 F.3d 413, 422

(1st Cir. 1996) ("Whether or not trimming the fat from a

company's organizational chart is a pr udent practice in a

particular business environment, the employer's decision to

eliminate specific positions must no t be tainted by a

discriminatory animus."). But there is little, if any,

admissible evidence suggesting that the decision to merge

We s ton-Smith's job function into a higher level job in a

streamlined organization was motivated by either retaliation or

discrimination.

Weston-Smith's attack on the reasons given for the

choice of Neumann over Weston-Smith herself as pretextual is

similarly flawed. Weston-Smith says that Melin's generalized

subjective assessments about "leadership" and "vision" to

support the creation of a new job and the choice of Neumann are

insufficient. Subjective judgment may mask an improper motive,

as Weston-Smith suggests. Melin's explanation, however, is not-21-

sheer subjectivity. Melin had observed Neumann over a period of

years as she successfully performed demanding tasks. These

tasks

-- heading the capital campaign and the nurses' bargaining

unit -- demonstrated Neumann's skills. Absent further evidence

of discrimination or retaliation, which Weston-Smi th has not

produced, there is no reasonable inference of pretext.

Melin's statement that he wanted Neumann on his senior

management team must be pretext, Weston-Smith argues, because

Weston-Smith was terminated and discouraged from even applying

for the new position before Neumann was ever told of or accepted

the new position. No reasonable inference of pretext can be

drawn from this. Although it was not certain that Neumann would

accept, it is improbable that she would decline a position with

higher pay on the senior management team, working directly under

Melin, whom she knew. Moreover, the Hospital might easily have

wished to avoid the awkward situation of informing Neumann, then

Weston-Smith's subordinate, of the decision to lay Weston-Smith

off before Weston-Smith herself found out.

Weston-Smith also relies on her relative qualifications

for the new job compared with Neumann's. She stresses Neumann's

testimony that she had no management experience and did not have

a masters degree, while Weston-Smith had both. This argument is

nothing more than second-guessing Melin's decision about whose-22-

skill set would be more valuable. That Melin might have decided

in Weston-Smith's favor based on her own skills would not permit

a jury to inf er that his choice of Neumann was either

discrimin ation or retaliation. Moreover, Weston-Smith places

too much emphasis on whether a job was termed "management" and

on credentials. Melin could reasonably look behind labels and

degrees, and rely on his own e x perience with Neumann and

observation of her leadership skills, regardless of whether she

had played a union or a manage ment role at the time. That

approach does not render his decision so unlikely as to permit,

from that and little more, a jury inference of improper motive.

Beyond her attacks on the Hospital's proffered reason,

Weston-Smit h presents a few more pieces of circumstantial

evidence of discriminatio n or retaliation on the Hospital's

part. These consist of her own testimony that she overheard two

docto rs complaining about her absence on maternity leave;

Neumann's additional testimony that there had been complaints

about Weston-Smith's "[l]ack of accessibility" (although not

that these complaints were related to the maternity leave); and

Bowles's silence, if admissible, in the face of Weston-Smith's

accusatory question. As to the testimony of complaints, nothing

links those compla ints to the decision process; nor do they

appear sufficiently pervasive to justi fy a finder of fact in-23-

inferring such a link. As to the silence, we have already given

the reasons that, if admissible, it has little probative value.

We conclude that Weston-Smith has produced insufficient

evidence to take her case to a jury within the McDonnell Douglas

framework. Although her prima facie case is undisputed, the

Hospital's proffered reasons for her termination are plausible

a nd coherent, and neither her criticisms of those reason s nor

her independent circumstantial evidence of an improper motive,

whethe r taken apart or together, are sufficient to require a

jury trial. S ee Zapata-Matos v. Reckitt & Colman, Inc. , 277

F.3d 40, 47 (1st Cir. 2002) ("[A] slight suggestion of pretext,

absent other evidence from which discrimination can be inferred,

[does not] meet[] plaintiff's ultimate burden.").

III.

For the reasons given, we affirm the judgment of the

district court. No costs are awarded.