The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8
(1st Cir. September 14, 1998)
Keywords: ADEA (constructive discharge)
Introduction: Peter Shorette sued Rite Aid under the ADEA alleging
that he was constructively discharged. The district court granted summary judgment in
favor of Rite Aid. The First Circuit affirms.
Facts: Shorette was the store manager for a LaVerdiere Drug Store in
Fairfield, Maine. In 1994, Rite Aid constructed a new store across the street. Later that
year, Rite Aid bought out LaVerdiere and scheduled Shorette's store for closing. All
former LaVerdiere store managers were told they would be retained. However, they had to be
trained to use a computer for various managerial functions, such as inventory and payroll.
While Shorette was closing down his store, Rite Aid provided him an older computer to
train on. After his store was closed, he was assigned to an assistant manager position at
an Augusta Rite Aid. While Shorette continued to train on the computer, he was not making
much progress. Rite Aid then transferred Shorette to a Rite Aid store in Waterville
because the store manager, Wayne Cyrway, was a former LaVerdiere store manager who had
proven especially adept at training store managers on the Rite Aid computer system.
However, Cyrway was unable to successfully train Shorette. Because of this, Rite Aid gave
up on attempting to train Shorette, and he was offered a choice of either resigning or
taking a key cashier position (which was lower-paying). Shorette chose to resign.
Shorette testified that at around the time of the takeover Roland
Hughes, Rite Aid's district manager, asked Shorette how old he was and when he planned to
retire. But Shorette could not recall whether this comment was made before or after the
takeover; and in any event, there was no evidence that Hughes played any role in the
personnel decisions affecting Shorette.
Shorette testified that Cyrway twice advised Shorette that he had a
perfect case of age discrimination. But this is just Cyrway's lay opinion. There was
insufficient evidence that Cyrway had knowledge of or was involved in Rite Aid's
The First Circuit assumed arguendo that Shorette established a prima
Rite Aid articulated a nondiscriminatory reason for not making Shorette
a manager -- his inability to attain computer proficiency. Therefore, the issue is
whether Shorette presented sufficient evidence of pretext for age discrimination.
Shorette disputes his lack of computer proficiency, but his personal
opinion regarding his own job qualifications is not sufficiently probative on the issue of
Other evidence of pretext for age discrimination
He was given an old computer to train on at the Fairfield store. But why
should Rite Aid provide a new computer in a store it is closing, and he was provided with
a lot of training on new computers after the Fairfield store was closed.
Shorette argues he was the only store manager in the Waterville area who
was over 60 years old or older who was demoted. But this small statistical sample carries
little or no weight.
Shorette argues that Rite Aid's policy of only hiring a management
trainee (assistant manager) when a manager's position was available was violated because
no position was available. But Shorette was not "hired" as an assistant manager.
He was a displaced store manager placed in an assistant manager position on a temporary
Shorette argues that Rite Aid never provided him with a permanent name
tag. But there was no evidence that this was anything more than an oversight.
Shorette argues that Rite Aid hired two younger manager trainees after
the takeover. But this reveals nothing statistically meaningful about Rite Aid's
company-wide hiring practices. Nor did Shorette show that these trainees went on to become
a store manager -- thereby replacing him. Nor did he show that they were equally or less
proficient in operating the Rite Aid computer system.
Shorette argues that notes made by supervisors about his computer skills
were made after he filed suit. But he failed to provide evidence supporting this
Therefore, the First Circuit affirms the district court's grant of
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