USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2266
KOFI DODI,
Plaintiff - Appellant,
v.
THE PUTNAM COMPANIES,
Defendant - Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Kevin G. Powers, with whom Robert S. Mantell and Law Office
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of Kevin G. Powers were on brief for appellant.
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Ilene Robinson, with whom Louis A. Rodriques, Katherine J.
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Ross and Sullivan & Worcester LLP were on brief for appellee.
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August 28, 1996
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Per Curiam. Appellant-defendant Kofi Dodi ("Dodi")
Per Curiam.
appeals the district court's decision granting defendant-
appellant The Putnam Companies ("Putnam") summary judgment. Dodi
had filed suit under Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e-3(a), and Mass. Gen. L. ch. 151B alleging
discrimination on account of his race and national origin and/or
retaliation for filing a charge with the Massachusetts Commission
Against Discrimination ("MCAD"). The two issues before us are
whether the court below abused its discretion in striking Dodi's
two affidavits and portions of his Opposition to Summary
Judgment; and whether it erred in granting the summary judgment.
For the reasons stated herein, we affirm.
BACKGROUND
BACKGROUND
We recite the following facts, drawn from the district
court Memorandum and Order, in the light most favorable to the
nonmovant. Equal Employment Opportunity Comm'n v. Green, 76 F.3d
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19, 21 (1st Cir. 1996). Dodi is a United States citizen who was
born in Ghana and is black. He began working for Putnam in 1984,
and by 1987 was part of the Tax and Compliance unit. In December
1989 or January 1990, the department was reorganized. A white
female, Michelle Whalen ("Whalen"), was appointed Manager of the
Tax and Compliance unit, a position Dodi desired, and which title
he maintains was his prior to the reorganization and Whalen's
appointment. Dodi complained to several individuals, including
Robert Lucey, President of Putnam Investor Services. After he
complained, Dodi was made the IRS Technical Manager: he contends
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that his appointment was an effective demotion, while Putnam
labels it a lateral move.
In May 1990, Dodi filed a charge with MCAD alleging
that he was demoted and denied promotion on account of his race
and national origin. After he filed the charge, his rating in
his performance reviews declined -- his rating dropped to
"unsatisfactory" -- and the reviews suggested increased hostility
between Dodi and his supervisors. Dodi contends that he was
excluded from meetings and isolated from the department because
of the complaint. Putnam fired Dodi in March 1991, roughly ten
months after the filing of the MCAD complaint. He filed a second
complaint in June 1991, alleging that he was terminated because
of his race and national origin, or in retaliation for filing the
1990 complaint, or both.
MCAD dismissed the two complaints in December 1992, for
lack of probable cause, a decision it affirmed in January of
1993. Dodi filed a civil action in Massachusetts Superior Court,
which Putnam removed to the Federal District Court. The parties
made discovery requests and took depositions. Putnam filed a
motion for summary judgment, which Dodi opposed. In June 1995,
Putnam moved to strike portions of Dodi's Opposition to Summary
Judgment (the "Opposition"). Dodi's opposition to the motion to
strike contained an affidavit (the "first affidavit") with
attachments. At a hearing in July 1995, the district court
granted Putnam's motion to strike portions of Dodi's Opposition,
and struck the first affidavit on its own initiative. It granted
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Dodi's request for permission to submit supplemental information
in support of the stricken statements in the Opposition. In late
July Dodi filed a supplemental submission in opposition to
Putnam's motion to strike, including another affidavit (the
"second affidavit"). In August, Putnam moved to strike the
second affidavit, and in October 1995, the district court granted
Putnam's motion for summary judgment and its motion to strike the
second affidavit. This appeal ensued.
STRICKEN SUBMISSIONS
STRICKEN SUBMISSIONS
We begin with Dodi's argument that the district court
erred in striking the affidavits and his Opposition since, if
they were admissible, they would form part of the record on which
the summary judgment would be evaluated. See Fed. R. Civ. P.
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56(c). We review the district court's decision to strike for
abuse of discretion. See Green, 76 F.3d at 23 ("The district
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court has broad authority to prescribe the evidentiary materials
it will consider in deciding a motion for summary judgment.");
see also Ramsdell v. Brooks, 64 F.3d 5, 8 (1st Cir. 1995), cert.
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denied sub nom. Ramsdell v. Machias Savings Bank, __ U.S. __, 116
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S. Ct. 913 (1996); New England Anti-Vivisection Soc. v. U.S.
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Surgical Corp., 889 F.2d 1198, 1204 (1st Cir. 1989).
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Under the Federal Rules of Civil Procedure, affidavits
"shall be made on personal knowledge, set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein." Fed. R. Civ. P. 56(e). Accordingly, if the affidavits
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and Opposition Dodi submitted did not meet these criteria, the
district court can hardly have abused its discretion in striking
them. Cf. Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399,
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401 (1st Cir. 1988) (affirming that affidavit which does not meet
the Rule 56 specificity requirement is insufficient to establish
a genuine issue for trial); FDIC v. Rold n Fonseca, 795 F.2d
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1102, 1110 (1st Cir. 1986) (holding that where receipts submitted
to support opposition to summary judgment constituted
inadmissible hearsay, party failed to comply with Rule 56(e)).
Having briefly set out our standard of review and the
relevant legal framework, we turn to the particulars of Dodi's
argument. As the parties have addressed the stricken documents
according to subject, we follow suit.1
Imitation of Dodi's Accent: The district court struck
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Dodi's statement in his Opposition that William McGue, Putnam's
Managing Director, and Robert Frazer, a white manager, "made fun
of Dodi's accent, and imitated him at meetings and during casual
conversations." Dodi seeks to rely on a paragraph from his
second affidavit in support of his assertion. We do not find
that the district court abused its discretion in striking either
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1 In the course of his argument, Dodi several times invites this
court to review his affidavits as a whole to determine whether
they should have been struck and whether there is admissible
evidence included in them. He does not, however, attempt to cull
out the admissible portions or cite any authority. We find,
therefore, that except for the portions he specifically
discusses, he has waived his argument that the affidavits as a
whole are admissible, as arguments made perfunctorily on appeal
with no developed argument or support are deemed waived. See
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United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
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denied, 494 U.S. 1082 (1990).
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the statement from the Opposition or the paragraph in the second
affidavit. The statements in the paragraph are conclusory and
lack specificity. Moreover, even if it were error to exclude the
evidence, it would be harmless, for the imitation does not
support Dodi's claim of retaliation, and as discussed below, that
is the only cause of action remaining on appeal.
Merit Raises: The district court struck Dodi's
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statement in the Opposition that he "received raises based on
merit," on the basis that there was nothing in the record as to
what "merit" meant, or how and on what basis such raises were
given. Dodi claims that statements from the stricken second
affidavit provide such verified information. He also points to a
computer printout entitled "Salary, Increase & Performance
History Screen" which the district court struck as part of the
first affidavit, as well as a memorandum sent to him from James
Swinney, a Senior Vice President, dated January 2, 1990. We find
that the district court did not abuse its discretion in striking
these documents.
Dodi claims that all three meet the requirements to be
a business record exception to the hearsay rule. The
requirements for the exception are clear: a "memorandum, report,
record or data compilation, in any form" is admissible so long as
it is
made at or near the time by, or from
information transmitted by, a person with
knowledge, if kept in the course of a
regularly conducted business activity,
and if it was the regular practice of
that business activity to make the
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memorandum, report, record, or data
compilation, all as shown by the
testimony of the custodian or other
qualified witness . . . .
Fed. R. Evid. 803(6); see, e.g., E.E.O.C. v. Alton Packaging
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Corp., 901 F.2d 920, 926 (11th Cir. 1990). Dodi has not provided
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the required foundation for these three documents. First, Dodi
misunderstands the application of the rule, which applies to
memoranda, reports, and record or data compilation, not oral
statements, in claiming that it covers oral statements made to
him and mentioned in the second affidavit. Second, as for the
computer printout, Dodi's statement that in his experience, "such
documents are routinely generated by Defendant in the ordinary
course of its business" falls far short of laying out the
foundation Rule 803(6) requires. That it was provided to Dodi in
discovery does not save it. Third, Dodi has also failed to lay
out the foundation for the memorandum from Swinney: although he
says he received it in the normal course of business on January
2, 1990, and that it was generated and maintained in the ordinary
course of business, we agree with Putnam that there is no support
for these claims.
Dodi faces similar foundational issues with his claim
that the documents are also admissible as party admissions under
Fed. R. Evid. 801(d)(2)(D). He has, to put it briefly, failed to
show that the statements he cites to were made by Putnam's "agent
or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship." Fed.
R. Evid. 801(d)(2)(D). Mere assertion that they were so made
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does not suffice.
Even if some of these statements had been admissible,
however, the court still would not have abused its discretion
since, as Dodi notes in his brief, the court based its decision
in part on the fact that there was no basis in the record as to
what "merit" meant. In the cited portion of his second
affidavit, Dodi notes that instructors from the human resources
training department told him that "the Putnam policy was to give
merit raises as a reward for satisfactory performance by
employees." This statement is clearly not admissible under the
business record exception, as he claims, since it was an oral
statement. Fed. R. Evid. 803(6) (applicable to "[a] memorandum,
report, record, or data compilation"). Nor is it a party
admission, since he has not addressed the foundational
requirements laid out in the rule itself.
EEO-1 Report: Next Dodi argues that the district court
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erred in striking a 1993 EEO-1 report of Putnam, and the
corresponding portion of the first affidavit, which he claims
evidences that he reasonably believed that race discrimination
existed. In his support he notes that the report was provided in
discovery, that Putnam is required by law to produce such reports
(Dodi does not specify what law), and that it is a true and
accurate copy of the document Putnam provided Dodi. We fail to
see how the fact that a document was presented in discovery
suffices to authenticate the document or lay the foundational
requirements of Rule 803(6) or Rule 801(d)(2)(D). At any rate,
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even if the district court erred, it would have been harmless
error, since, as Dodi notes, this evidence goes to his prejudice
claim, not his retaliation cause of action, which is his sole
remaining cause of action.
Swinney Memorandum: Dodi submitted a memorandum he
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wrote to Swinney, dated December 26, 1989, to show that he had
complained about his treatment, in connection with his race
discrimination claim. The district court struck the memorandum
on hearsay grounds; we agree that the necessary foundation was
missing. Dodi's citation of the fact that Putnam is required to
generate and maintain a personnel file on its employees does not
substitute for the witness testimony required to lay a
foundation. Fed. R. Evid. 803(6). However, Dodi also notes that
the memorandum is being used, in part, not to prove the truth of
the matters asserted, but to demonstrate that Dodi complained of
the subjectivity of his performance evaluations, in the context
of opposition to perceived race discrimination. But this is a
distinction without a difference, since there is no dispute that
Dodi protested against perceived racism at Putnam. Nonetheless,
because Swinney was involved in Dodi's termination and thus
Dodi's retaliation claim, we shall consider the memorandum for
this limited purpose in our review of the district court's grant
of summary judgment.
$10,000 Pay Disparity: Dodi next contests the district
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court's decision to strike a series of statements which alleged
that for several years Dodi was paid a salary well below that of
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white individuals, until he complained. The court struck the
statements as conclusory. Having reviewed the cited deposition
pages and statements from the second affidavit, we find no abuse
of discretion in the ruling. Indeed, we agree with Putnam that
Dodi's deposition does not support the premise that he perceived
it as a race-based discrepancy in wages, but rather that
allegation seems to arise only after the motion for summary
judgment has appeared on the horizon. See Colantuoni v. Alfred
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Calcagni & Sons, Inc., 44 F.3d 1, 45 (1st Cir. 1994) ("When an
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interested witness has given clear answers to unambiguous
questions, he cannot create a conflict and resist summary
judgment with an affidavit that is clearly contradictory, but
does not give a satisfactory explanation of why the testimony has
changed."). Further, any error would be harmless, as the
evidence of a pay disparity does not tend to prove retaliatory
action, but rather goes to the discrimination claim waived on
appeal.
Qualifications of Michelle Whalen: Dodi contests the
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district court's decision to strike portions of statements
alleging that although Whalen was given a higher position than
Dodi, she was less qualified for the position than Dodi. The
cited deposition pages offer no evidence other than it was Dodi's
belief that Whalen was less qualified, and inadmissible hearsay
that she was management's choice. Dodi now points to excerpts
from Whalen's personnel file and the job description, which have
not been stricken, to support his position; Putnam in turn points
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out that the promotion was based on managerial abilities, not
just narrow technical expertise, and that Dodi fell far short of
Whalen in the former category, even if he surpassed her in the
latter.
We need not address this debate, for even if the
district court erred in striking the statements, the error was
harmless. First, the evidence of whether Whalen was more or less
qualified than Dodi goes to the waived discrimination claim, and
not to the retaliation claim discussed below. Second, we remind
Dodi of our repeated holding that "[c]ourts may not sit as super
personnel departments, assessing the merits -- or even the
rationality -- of employers' nondiscriminatory business
decisions." Mesnick v. General Elec. Co., 950 F.2d 816, 835 (1st
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Cir. 1991), cert. denied, 504 U.S. 985 (1992); see also Hoeppner
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v. Crotched Mountain Rehabilitation Ctr., 31 F.3d 9, 17 (1st Cir.
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1994).
Bresnahan Memorandum: Dodi seeks to admit a memorandum
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sent from Leslee Bresnahan to Ray Lambert. However, once again,
the fact that Putnam provided the document to Dodi in discovery
does not establish its authenticity, and the fact that Putnam is
required to generate and maintain a personnel file, providing
employees a copy of it on demand, does not fulfill the
foundational requirements of either Rule 801(d)(2)(D) or Rule
803(6), as simply set out in those rules. The district court did
not abuse its discretion in striking the memorandum.
Pattern of Isolation: In his Opposition, Dodi claims
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that after he complained about the reorganization, Jeff Levering,
to whom Dodi was supposed to report, "altered his behavior
towards Dodi, . . . no longer said positive things about Dodi's
job performance, and . . . avoided talking with Dodi." He also
alleges that he was ostracized, kept out of meetings, and that
his co-workers "ceased interacting" with him. The district court
struck the opinions as opinion and characterizations. Our review
of the cited pages from Dodi's depositions and the second
affidavit yields no grounds to find the district court abused its
discretion in striking the statements. Dodi does not give
specific incidents, place them in time, or give a yardstick by
which to measure either the timeliness of his reviews or their
content -- indeed, while he repeatedly discusses the supposed
content of Levering's weekly status reports, he never actually
refers to one.
Failure to Provide Staff: Dodi challenges the district
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court's decision to strike from the Opposition the statement that
Putnam "failed to give Dodi the permanent staff he requested."
We find no abuse of discretion here, as Dodi cited no support for
the statement in his Opposition. See Garside v. Osco Drug, Inc.,
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895 F.2d 46, 49 (1st Cir. 1990). Indeed, we agree with Putnam
that, even if admitted as within Dodi's personal knowledge, Fed.
R. Civ. P. 56(e), at best this statement can show only that Dodi
did not get all the resources he requested: Dodi points to no
evidence regarding Putnam's treatment of analogous request made
by non-minority employees, or employees who had not filed MCAD
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complaints, besides his own assertion that "other departments
under McGue" were fully staffed.
Other stricken statements: The district court properly
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struck the statement that McGue "failed to provide Dodi the
supplies and materials necessary" to become more visible within
the organization, as instructed. The cited deposition pages
offer no admissible support for the proposition, and the passage
he cites from the second affidavit constitutes argument and
hearsay. Again, however, we note that even if admitted, the
statement would at most have shown that Dodi did not get all the
supplies he requested, since he does not point to evidence of the
treatment of other, non-minority or non-complaining employees.
Merely pointing out that other departments received printers or
the like tells us very little.
Finally, Dodi objects to the striking of four
statements to the effect that after he made his complaint his
work was reviewed in a less timely manner, he stopped receiving
positive feedback or necessary information, and other employees
received instructions to keep tabs on his actions and note
everything he did. After review of the cited passages from his
deposition and the second affidavit, we find that the district
court did not abuse its discretion in striking the passages.
SUMMARY JUDGMENT
SUMMARY JUDGMENT
Dodi references his cause of action for termination due
to race or national origin in his statement of issues, but makes
no more than the most cursory reference to it in his brief, and
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makes no attempt at a developed argument that the district court
erred in granting summary judgment on the claim. Accordingly, we
deem it waived, Zannino, 895 F.2d at 17, and only consider his
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argument that the district court erred in granting summary
judgment on his claim that he was retaliated against because of
his opposition to discrimination.
"We review a grant of summary judgment de novo and are
guided by the same criteria as the district court; a grant of
summary judgment cannot stand on appeal 'unless the record
discloses no trialworthy issue of material fact and the moving
party is entitled to judgment as a matter of law.'" Green, 76
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F.3d at 23, quoting Alexis v. McDonald's Restaurants of Mass.,
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Inc., 67 F.3d 341, 346 (1st Cir. 1995). We note that "our review
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will be most searching in cases, such as this, that turn upon the
issue of motivation or intent." Rossy v. Roche Prods., Inc., 880
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F.2d 621, 624 (1st Cir. 1989).
We apply the McDonnell Douglas framework to Dodi's
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retaliation claim. See McDonnell Douglas Corp. v. Green, 411
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U.S. 792 (1973); Oliver v. Digital Equip. Corp., 846 F.2d 103, 10
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(1st Cir. 1988). First, Dodi must establish a prima facie case
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by showing that:
(1) [he] engaged in a protected activity
as an employee, (2) [he] was subsequently
discharged from employment, and (3) there
was a causal connection between the
protected activity and the discharge.
Hoeppner, 31 F.3d at 14. Under Massachusetts law, the framework
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is slightly different. To succeed,
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the plaintiff must prove that she
reasonably and in good faith believed
that [Putnam] was engaged in wrongful
discrimination, that [he] acted
reasonably in response to [his] belief,
and that [Putnam's] desire to retaliate
against [him] was a determinative factor
in its decision to terminate [his]
employment.
Tate v. Department of Mental Health, 645 N.E.2d 1159, 1165 (Mass.
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1995).
Next, the burden shifts to Putnam to articulate a
legitimate, nondiscriminatory reason for the discharge. If it
does so, "in order to escape summary judgment under federal and
[Massachusetts] law, [Dodi] must at least introduce sufficient
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evidence to permit the factfinder to infer that [Putnam's] stated
reason for the termination was pretextual."2 Grant v. News Group
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Boston, Inc., 55 F.3d 1, 7 (1995); see, e.g., Hoeppner, 31 F.3d
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at 14; LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842-43
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(1st Cir. 1993), cert. denied, __ U.S. __, 114 S. Ct. 1398
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(1994); Blare v. Husky Injection Molding Sys., Boston, Inc., 646
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N.E.2d 111, 117 (Mass. 1995).
The district court found that Dodi had not satisfied
the third element of the prima facie case. Assuming nonetheless
that Dodi could establish a prima facie case, it found that
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2 Dodi argues that proof of pretext is not always required.
However, his reliance on Patterson v. McLean Credit Union, 491
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U.S. 164, 187 (1989), for that proposition is misplaced, since
the cited passage notes that a petitioner can present a variety
of types of evidence to establish pretext, not that it need not
be established. Our case law offers no doubt that in retaliation
claims, the McDonnell Douglas analysis requires a showing of
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pretext. See, e.g., Grant, 55 F.3d at 7; Greenberg v. Union Camp
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Corp., 48 F.3d 22, 29 (1st Cir. 1995).
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Putnam easily cleared the hurdle of articulating a reason for the
dismissal -- that Dodi's work was viewed as sub-standard and that
he received poor performance reviews, suggesting missed deadlines
and poor communication between Dodi and his supervisors and his
staff. Thus the court moved to the third step of the analysis,
where it found that Dodi could not show that Putnam's asserted
reason was pretextual.
We also doubt that Dodi can make a prima facie case.
However, even assuming that Dodi could meet the prima facie
requirement, and acknowledging that Putnam has articulated a
reason for the dismissal, we find that Dodi cannot meet the third
requirement of the McDonnell Douglas analysis. Put simply, even
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given the benefit of all inferences, he has not shown that
Putnam's asserted reason was false, much less that its real
motivation was retaliation. Like the district court before us,
we have found no evidence on this record which supports a finding
that his evaluations were inaccurate, or which reveals that Dodi
was treated differently than his non-minority or non-complaining
counterparts. See Wynne v. Tufts Univ. Sch. of Medicine, 976
___ _____ _____________________________
F.2d 791, 796 (1st Cir. 1992) ("When pretext is at issue in a
discrimination case, it is a plaintiff's duty to produce specific
facts which, reasonably viewed, tend logically to undercut the
defendant's position."), cert. denied, 507 U.S. 1030 (1993).
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Dodi makes much of the fact that McGue learned of
Dodi's MCAD complaint on the day he decided to terminate Dodi, at
a meeting in which McGue and Swinney -- who testified at his
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deposition that he was very angry about the claim -- discussed
Dodi's termination. We do not doubt that the timing of when the
relevant decision maker learned that a complaint was filed and
when the dismissal occurred can be demonstrative of retaliation.
See Oliver, 846 F.2d at 110. Indeed, the timing of the
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discussion here weighs in favor of Dodi having made a prima facie
case. See Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.
___ _____ _______________
1994) (finding that timing of employer's knowledge of protected
activity and dismissal helps establish a prima facie case);
Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 202 (1st Cir.
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1987) (same).
However, "[t]he filing of an MCAD complaint is not some
magic shield that insulates the employee from termination
regardless of the circumstances." District Court Memorandum and
Order, at 15. Dodi himself notes that the reference to his MCAD
claim was made "in passing." We fail to see how a passing
reference can suffice to show that Putnam's asserted reason for
firing Dodi was a pretext,3 especially as Dodi points to nothing
else of real substance in his support: the "history" of
retaliation he argues existed, as well as the alleged
inconsistencies in who claimed authority to fire him, and why, do
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3 Dodi's reliance on College-Town, Division of Interco, Inc. v.
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Massachusetts Comm'n Against Discrimination, 508 N.E.2d 587
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(Mass. 1987), is misplaced. There, the reference to the
complaint was dramatically greater than here: the employee was
told "'Loretta, it has come to my attention that you are suing
College-Town. It's been done before. Here is your vacation,
your severance pay or whatever, and good luck. May I have your
badge?'" Id. at 590. The circumstances here in no way rise to
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the level of these facts.
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little, if anything, to further his cause. "In this circuit, we
have always required not only 'minimally sufficient evidence of
pretext,' but evidence that overall reasonably supports a finding
of [retaliation]," and Dodi has not met that mark. LeBlanc, 6
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F.3d at 842-43 (quoting Goldman v. First Nat'l Bank of Boston,
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985 F.2d 1113, 1117 (1st Cir. 1993)).
CONCLUSION
CONCLUSION
For the foregoing reasons, the decision of the district
court granting Putnam summary judgment is affirmed.
affirmed
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