United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit
No. 95-2294
RACHEL L. FENNELL,
Plaintiff, Appellant,
v.
FIRST STEP DESIGNS, LTD, D/B/A HAND-IN-HAND,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Roy T. Pierce with whom Alfred C. Frawley and Brann & Isaacson
were on brief for appellant. Peter Bennett with whom Frederick B. Finberg and Bennett and
Associates, P.A. were on brief for appellee.
May 15, 1996
STAHL, Circuit Judge. Rachel L. Fennell sued her STAHL, Circuit Judge.
former employer, First Step Designs, Ltd. ("First Step"),
under Title VII and related state laws, claiming that she was
terminated in retaliation for making allegations of sexual
harassment. First Step moved for summary judgment,
presenting evidence that the decision to lay off Fennell had
been made prior to her complaint. The district court granted
summary judgment for First Step, after denying Fennell's
motion for further discovery under Fed. R. Civ. P. 56(f).
Fennell had hoped that further discovery would uncover proof
in First Step's computer files that a memo about planned
layoffs, dated prior to her report of harassment, had been
fabricated. Fennell appeals both rulings. We affirm.
I. I.
Background Background
A. Factual Background: Fennell's Retaliation Claim
First Step, a designer, manufacturer, and
distributor of play equipment for children, operates a
warehouse and customer service center in Oxford, Maine.
Fennell worked as a Warehouse Lead, a supervisory position in
which she directed the warehouse staff in fulfilling orders.
Although Fennell was a supervisor and shared office space
with the Warehouse Manager, she spent most of her time on the
warehouse floor working alongside the other warehouse
workers. Her immediate supervisor was Wayne Smith, the
-2- 2
Warehouse Manager. Kathleen Tucker, General Manager of the
warehouse, was Smith's supervisor.
1. Fennell's Report of Harassment and Her
Subsequent Layoff
Two First Step employees had complained to Fennell
about on-the-job sexual remarks by Smith, and Fennell had
heard from other employees about a sexually offensive remark
Smith had made while performing as a country musician at a
company-sponsored benefit dance. On November 19, 1993,
Fennell met with Tucker and recounted what she had heard
about Smith's inappropriate remarks. According to Fennell,
Tucker was hostile. Smith's immediate predecessor had been
fired in May of 1993 for sexual harassment, and Tucker was
incredulous to hear that First Step might have another
harasser as Warehouse Manager.
On December 20, 1993, Fennell was laid off,1 and
she believes her layoff was in retaliation for her complaints
to Tucker. Fennell also alleges that, after her report to
Tucker, she was given inferior work (regular packing duties
rather than supervisory duties). First Step maintains that
Fennell's layoff was planned before she complained to Tucker
about Smith, and that her complaint was not a factor in its
decision to lay her off.
1. Fennell asserts that she was terminated, while First Step maintains she was only laid off. We address this dispute in Part II.B.3, our discussion of the grant of summary judgment.
-3- 3
2. The October 25 Memo
A memorandum dated October 25, 1993, from Tucker to
Eric Schultz, First Step's Boston-based Chief Operating
Officer, indicated that Fennell was scheduled for a layoff
the week before Christmas.2 The memo, titled "SUBJECT:
ANTICIPATED LAYOFFS/STAFFING," listed twenty-eight persons
and their continuing positions in the warehouse; it also
listed Fennell and four others under the subtitle "SCHEDULED
LAYOFFS WEEK OF CHRISTMAS." According to the affidavits of
Tucker and Schultz, the memorandum was a response to pressure
from Schultz to reduce operating costs at the warehouse.
Tucker and Schultz both state in their affidavits that the
memorandum was faxed to Schultz on October 25, and the
document bears a hand stamp indicating that it was faxed that
day. Brigitte Marston, a customer service supervisor also
reporting to Tucker, states in her affidavit that she saw a
"layoff list" with Fennell's name on it before Fennell's
November 19 meeting with Tucker. (Marston also attended that
meeting, at Fennell's request.) On November 5, 1993, Marston
sent an internal electronic mail message ("E-mail") to
another employee, in which she referred to the layoff list.
Marston implied in the E-mail that she had seen the list and
knew who was on it.
2. Copies of the memorandum have been made part of the summary judgment record as exhibits to the affidavits of Tucker and Schultz.
-4- 4
Fennell contends that the memorandum was fabricated
after the November 19 meeting. To support this contention,
she points to five facts that, she argues, are suggestive of
fabrication: (1) one of the employees that Tucker listed for
an ongoing position in the October 25 memorandum had already
left the company late that summer, before the memo was
created; (2) Tucker stated that she had sent other memoranda
regarding earlier layoffs to Schultz, but neither she nor
Schultz kept copies of them (only the October 25 memo was
retained); (3) Tucker commented to Fennell earlier in October
1995 that she was doing a good job, that her services were
needed, and that she would not be required to cross-train as
a telemarketer; (4) First Step employees had inconsistently
described the job action taken with respect to Fennell
(sometimes as a layoff, other times as an elimination of her
position) as well as the precise reasons for the action; and
(5) certain other employees listed in the memorandum for
layoff were ultimately not laid off. For ease of reference,
we shall refer to these as "the five suspicious facts."
B. Prior Proceedings
On January 23, 1995, Fennell filed a three-count
complaint in federal district court alleging that First Step
fired her in retaliation for her report of sexual harassment,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e-3(a), the Maine Human Rights Act, Me. Rev.
-5- 5
Stat. Ann. tit. 5, 4572(1)(E), and the Maine
Whistleblower's Protection Act, Me. Rev. Stat. Ann. tit. 26,
833(1)(A). On August 4, 1995, after the close of
discovery, First Step moved for summary judgment on all three
counts, arguing primarily that Fennell's layoff was planned
before she lodged her sexual harassment complaint, and thus
was not retaliatory. First Step asserted that there was no
genuine issue as to the fact that the layoff decision
predated Fennell's complaint, because the October 25 memo and
the corroborating testimony of three First Step managers was
essentially uncontroverted. On August 25, 1995, Fennell
opposed the motion, arguing that there was a genuine issue of
material fact as to whether the October 25 memo was actually
written before she complained to Tucker or whether it was,
instead, fabricated to exonerate First Step. In her
opposition to summary judgment, Fennell requested additional
time for discovery under Fed. R. Civ. P. 56(f) to determine,
based on the computer word processing file, when the memo was
written. On August 28, 1995, First Step responded by
providing a diskette containing a copy of the word processing
file of the October 25 memo. On September 9, 1995, First
Step submitted a reply brief and an objection to Fennell's
request for more discovery time, supported by an affidavit
averring that there was no way to determine from its computer
system when the document was first created.
-6- 6
The district court determined that, in light of the
October 25 memo, Fennell had not shown evidence sufficient to
allow a reasonable jury to find that her layoff was in
retaliation for her complaints about sexual harassment, and
it granted "conditional" summary judgment in favor of First
Step. The condition was that Fennell would have, under Rule
56(f), "seven (7) days in which to file any affidavit
revealing competent testimony, based on the magnetic medium
[i.e. the diskette containing the word processing file], that
the memorandum was created or modified (as opposed to being
simply called up) on or after November 19, 1993."3
Pursuant to the district court's order allowing
limited further discovery, Fennell submitted the affidavit of
her computer expert stating that the computer word processing
file containing the October 25 memo on a magnetic diskette
revealed that the document was "autodated"4 on August 7,
3. There is no dispute that the October 25, 1993, memo, listing Fennell among those to be laid off, existed in May 1994, when it was submitted by First Step as part of the Maine Human Rights Commission fact finding process. Thus, if the document was fabricated as Fennell maintains, the fabrication occurred sometime after November 19, 1993, and before May 1994.
4. Fennell's expert actually stated that the memo was "modified" on August 7, 1995. However, the expert did not suggest that there were any textual changes to the memo on
that date. Rather, the expert referred to the automatic modification of the date assigned to the document file by the word processing program after certain commands have been entered. For example, the expert stated, "if a file is 'called-up' to an application such as Wordperfect, and saved to a different location (whether changed or not), the date of
-7- 7
1995. Fennell's expert proposed that the original date of
creation or date of any earlier modification could be
determined by a review of the file as it resided on First
Step's hard drive, rather than the diskette that had been
provided by First Step. The district court held a
hearing on Fennell's request for discovery of First Step's
hard drive and then directed the parties to submit a
"protocol" under which Fennell would have access to First
Step's hard drive. If no joint protocol could be agreed
upon, differences were to be resolved by conference.
Subsequently, the parties submitted substantially different
protocols.
After reviewing the protocols, and without holding
another conference, the district court decided that its
earlier decision to consider further discovery had been ill-
advised. Accordingly, the court denied any further Rule
56(f) discovery, and granted First Step summary judgment.
This appeal ensued.
II. II.
Discussion Discussion
saving is shown as the modification date." In an attempt to achieve some clarity, we shall refer to such a change to the date of a computer file not as a "modification," but as "autodating." We consider "modification," as that term was used by the district court, to mean a change in the text of the document that would appear on a paper printout of the document, as opposed to changes to the date assigned to the computer file containing the document text.
-8- 8
Fennell appeals the district court's grant of
summary judgment in favor of First Step, as well as its
denial of her request for additional discovery of First
Step's computer files in the hope that she might find
evidence that the October 25 memo was fabricated after the
fact. Because summary judgment would have been inappropriate
if Fennell had presented evidence that the memo was a
perjurious fabrication, we will address the discovery issue
first.
A. Denial of Rule 56(f) Discovery
We review a district court's ruling on a discovery
request under Fed. R. Civ. P. 56(f) for abuse of discretion.
Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir.
1991). Federal Rule of Civil Procedure 56(f) provides:
Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
To receive the benefit of Rule 56(f), the "movant must (1)
articulate a plausible basis for the belief that discoverable
materials exist which would raise a trialworthy issue, and
(2) 'demonstrate good cause for failure to have conducted the
discovery earlier.'" Price, 931 F.2d at 164 (quoting
-9- 9
Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec.
Co., 840 F.2d 985, 988 (1st Cir. 1988)). Although the
district court did not use these precise words, it denied any
further Rule 56(f) discovery essentially because Fennell did
not articulate a plausible basis for the belief that
discoverable materials existed which would have raised a
trialworthy issue. For purposes of our analysis, we will
assume, but need not decide, that Fennell met the "good
cause" element.
Fennell argues that the district court should have
allowed Rule 56(f) discovery of First Step's hard drive
because her expert established that the October 25 memo was
"autodated" on August 7, 1995. Fennell argues that
regardless of whether the autodating was intentional or
inadvertent, it obscured the date of the document's last
prior modification or, if there was no prior modification,
the date of its creation, thus rendering those dates
uncertain. Fennell maintains that First Step must "live with
that uncertainty," by which she means that there is a genuine
dispute as to the date on which the memo was written.
Fennell emphasizes that First Step's summary judgment motion
is based in large part on the memo, as proof that the
business decision to lay off Fennell predated her report of
sexual harassment. Fennell also points to the "five
suspicious facts" noted earlier as support for her contention
-10- 10
that there is a plausible basis for her belief that further
discovery will yield evidence that the memo was fabricated.
We begin our analysis with a review of the discovery-related
proceedings below.
We note at the outset that First Step did not file
its motion for summary judgment until after the close of
discovery pursuant to the district court's pretrial order.
Fennell's original discovery request did not make clear
whether it called for a diskette copy of the memo or a paper
"original." In any event, there is no indication and no
allegation that First Step withheld the diskette from Fennell
in bad faith.
Despite the district court's determination that
Fennell's opposition to summary judgment had not demonstrated
any genuine dispute as to First Step's contention that its
decision to lay off Fennell preceded her complaint, the court
granted a seven-day extension to allow Fennell to file an
affidavit providing some computer-based evidence that the
memo was fabricated and antedated. By this time, a diskette
containing the memo's computer file was already in Fennell's
hands, thus the proposed extension did not involve any
intrusion or impose costs upon First Step.
In compliance with the discovery extension, Fennell
submitted the affidavit of her computer expert, which stated
that analysis of the diskette containing the word processing
-11- 11
file of the October 25 memo revealed that the document was
"autodated" on August 7, 1995. The district court determined
that the computer expert's affidavit did not reveal that the
memorandum was "created or modified (as opposed to being
simply called up) on or after November 19, 1993." In other
words, the affidavit was not probative of any fabrication.
Fennell's expert proposed that the original date of
creation or date of last textual modification could be
determined by review of the file as it resided on First
Step's hard drive. On the other hand, a First Step employee
had stated, in an affidavit previously filed in reply to
Fennell's opposition to summary judgment, that First Step's
computer consultant determined that its system could not
reveal the date on which the document was first created or
last textually modified.
The district court held a conference after Fennell
filed her computer expert's affidavit. After considering
Fennell's proposal that access to First Step's hard drive
might reveal the date of creation or modification of the
October 25 memo, the district court directed the parties to
submit a "protocol" establishing the procedures by which
Fennell would have access to relevant materials on First
Step's hard drive. The district court cautioned that
discovery would be allowed only if the protocol ensured that
hard drive access would have a "minimal degree of intrusion
-12- 12
time-wise and interference-wise" with First Step's
operations, and if it provided "adequate assurances of
confidentiality."
Fennell provided a protocol requiring a specialist
to "mirror" First Step's entire hard drive, and take the
mirror copy to its facility in Canada for complete analysis
and ultimate erasure.5 First Step objected to Fennell's
protocol and provided its own protocol.6
After reviewing the two protocols and apparently
recognizing that the parties were unlikely to reach
consensus, the district court concluded that its earlier
5. Fennell's protocol proposed, in sum: (1) a conference call between the parties and their computer representatives to discuss the computer system configuration; (2) an on-site visit at First Step's warehouse where counsel would observe Fennell's computer representative create a "mirror" of the target hard drive; (3) an off-site analysis of the mirror hard drive by a specialty laboratory, whereby the technicians would attempt to determine the creation date or modification date of the relevant files; (4) the erasure or destruction of the mirror hard drive, certified by affidavit; and (5) a protective order stipulating, in sum, that all information on the mirror hard drive not relating to the creation, modification, or erasure, of the relevant files is confidential.
6. First Step objected to Fennell's protocol because, inter
alia, it: (1) failed to describe the methodology by which
the technicians would attempt to determine the creation or modification dates (First Step noted that its computer system contains many hard drives, and expressed concerns over business risks resulting from accidental data loss, incompatible hardware, and system downtime); (2) did not adequately address attorney-client privilege and work product concerns as to other documents on the hard drive; and (3) allowed unsupervised possession of the mirror drive. The district court described the detailed protocol that First Step proposed as "extremely cumbersome and expensive."
-13- 13
decision to permit additional discovery had been "ill-
advised" because it would involve "a 'fishing expedition'
without any particularized likelihood of discovering
appropriate information," while, "[a]t the same time, the
process involves substantial risks and costs." To inform our
judgment whether the denial of further discovery was an abuse
of the district court's discretion, we first address the
district court's conclusion that the "risks and costs" were
substantial, and then its conclusion that the proposed
discovery was a "fishing expedition."
1. Risks and Costs
A party seeking discovery under Rule 56(f) must
"articulate a plausible basis for the belief that
discoverable materials exist which would raise a trialworthy
issue." Price, 931 F.2d at 164 (emphasis added). In
determining whether material is "discoverable," the court
should consider not only whether the material actually
exists, but the burdens and expenses entailed in obtaining
the material. See Fed. R. Civ. P. 26(b)(2).7 Discovery
7. Fed. R. Civ. P. 26(b)(2) provides:
The frequency or extent of use of the discovery methods otherwise permitted under these rules . . . shall be limited by the court if it determines that: . . . (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the
-14- 14
matters are for the informed discretion of the district
court, and the breadth of that discretion in managing pre-
trial mechanics and discovery is very great. Fusco v.
General Motors Corp., 11 F.3d 259, 267 (1st Cir. 1993). In
exercising this broad discretion, the district court in this
case balanced the costs, burdens, and delays that the
proposed discovery entailed, as well as the likelihood of
discovering evidence of fabrication, against the obvious
importance of the evidence sought. See Resolution Trust v.
North Bridge Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994)
(party seeking Rule 56(f) discovery "should set forth a
plausible basis for believing that specified facts,
susceptible of collection within a reasonable time frame,
probably exist")(emphasis added).
The district court recognized First Step's concerns
over Fennell's insufficiently detailed description of the
proposed analysis of the hard drive,8 as well as the
confidentiality of information on the hard drive that was
proprietary or subject to attorney-client privilege or work-
issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
8. First Step argued that Fennell's failure to disclose the specific technical steps to be taken in the analysis of the mirrored drive rendered her protocol nothing more than a proposal for a fishing expedition. First Step also argued that the unknown mirroring process and analysis of its system might temporarily or permanently affect their computer system and business operations.
-15- 15
product privilege. The district court also recognized that
resolving the discovery dispute, and the discovery process
itself, would increase legal and expert fees. The protocols
alerted the district court to genuine problems surrounding
the proposed discovery of First Step's hard drive. In
exercising its discretion, the district court reasonably
concluded that the discovery process would involve
substantial risks and costs. See id.
2. A Fishing Expedition?
The district court determined not only that the
risks and costs of further discovery were substantial, but
also that Fennell had not demonstrated "a particularized
likelihood of discovering appropriate information." We
agree. In our view, Fennell did not sufficiently "set forth
a plausible basis for believing that specified facts,
probably exist." Id. (party seeking discovery must show that
it will not be an "exercise in futility").
As to "susceptibility of collection," all Fennell
was able to say was that "there may be a way." Fennell
submitted the affidavit of her expert, proposing that the
original date of creation or date of any earlier modification
of the October 25 memo could be determined by a review of the
memo file as it resided on First Step's hard drive, rather
than on the diskette originally provided by First Step.
-16- 16
First Step submitted a reply to Fennell's expert affidavit,
which argued that Fennell's expert's statements were
conclusory, without foundation, and that Fennell's
speculation and conjecture did not warrant additional
discovery. The district court then held a hearing on the
discovery issue, at which the following was stated:
[The Court:] It's my understanding that based upon telephone communications as recently as today, that [Fennell] is informed by the [computer experts who were to analyze the mirrored hard drive] that they cannot reach a conclusion from the disk that has been provided, but instead, that the only way they can reach any kind of conclusion is by access to the hard drive on [First Step's] premises. That at this time, they cannot guarantee that there they can reach a conclusive result, but that it's their position there may be a way. Is that essentially correct?
[Counsel for Fennell:] That's correct, Your Honor.
The lack of detail in Fennell's protocol cast even more doubt
on the soundness of the technical basis for the discovery
venture. The district court had good reason to be skeptical,
based on Fennell's inadequate showing that the proposed
analysis could determine the memo's creation date.
As to whether "specified facts . . . probably
exist," Fennell presented precious little that suggested that
fabrication had occurred. The "autodating" that occurred on
August 7, 1995, could not have indicated that the document
was fabricated on that day, as it had been submitted more
-17- 17
than a year earlier in the state proceedings. The
"autodating" could indicate an intentional conspiracy to
cover up the document's fabrication by obliterating the
actual creation date, but that is mere speculation.
The "five suspicious facts," enumerated earlier,
are equally speculative. We fail to see how the inclusion of
an employee who had already left the company on the list of
employees to be retained makes fabrication more likely.
Fennell argues that the mistake indicates that the memo was
prepared at a later point in time, when Tucker's memory of
who was employed would have faded. That inference is, at
best, extremely attenuated.
The fact that the October 25 memo was retained
while other similar memos are no longer extant is also
virtually non-probative. It would be natural for an employer
to take care to retain a memo pertaining to an employee, soon
to be laid off, who had lodged a sexual harassment complaint.
Moreover, Fennell filed a state human rights charge within
ninety days of her complaint, thus the desirability of saving
any documents relating to her termination became obvious soon
after the memo was written. Nothing in the record suggests
any similar reasons for saving the earlier memos.
The fact that Tucker had made positive comments
about Fennell's performance and job security and First Step's
future shortly before she was placed on the layoff list is
-18- 18
not necessarily probative of fabrication, either. First Step
does not assert that Fennell was let go for poor performance,
but rather that her termination was part of a reorganization
dictated by financial concerns unrelated to her performance.
The need for her services until the end of the Christmas rush
could have been one reason Tucker spoke as she did.
Fennell claims that First Step managers
inconsistently described the nature of and the reasons for
the job action, but our review of all the statements shows no
sinister inconsistency. It appears that the term "layoff"
was used loosely, and was not necessarily indicative of a
temporary, rather than a permanent, action. And the various
statements about why she was let go, while worded in
different ways, all relate to First Step's business objective
of improving the economic efficiency of its warehouse
operation. We see nothing out-of-the-ordinary or suspicious
about the statements.
Finally, the fact that some employees slated for
layoff in the memo were ultimately not laid off might say
something about the finality of the layoff list as a general
matter, but we fail to see how it suggests fabrication. It
is true that only two of the five individuals slated for
Christmas week layoffs were actually laid off as scheduled,
but the record indicates non-suspicious reasons for the
changes in First Step's plans. Two of the three who survived
-19- 19
the axe stayed on in telemarketing because two other
telemarketers requested layoffs. The other employee was out
with an injury collecting worker's compensation during
Christmas week; at the urging of First Step's insurer, she
was called back to light duty after the New Year and then
laid off shortly thereafter. And, even ignoring the
apparently legitimate reasons why some of the slated layoffs
did not occur, the changes in First Step's staffing plans do
not suggest fabrication. Why would a fabricated layoff list
be more likely to name employees eventually retained than a
real layoff list? Wouldn't a fabricated list, written after
the fact, have the benefit of hindsight and thus be more
accurate? We see little probative value in this, or any of
the other "five suspicious facts."
3. Conclusion: No Abuse of Discretion
Even if we were inclined to disagree with the
district court's assessment of Fennell's arguments, which we
are not, we reverse a district court's discovery ruling only
for abuse of discretion. While there may be cases where
discovery of word processing files on a computer hard drive
might well be warranted, Fennell has not met her burden of
demonstrating that the district court abused its discretion
in denying that opportunity here. Thus, we hold that the
district court acted within its discretion in disallowing
further Rule 56(f) discovery, given its conclusions,
-20- 20
supported by the record, that (1) the discovery would entail
substantial risks and costs, and (2) there was little
particularized basis to believe that any evidence of
fabrication could be discovered by Fennell's experts.
-21- 21
B. Grant of Summary Judgment for the Defendant First Step
1. Standard of Review
We review a grant of summary judgment de novo, and
like the district court, we are obliged to view the facts in
the light most favorable to the non-moving party, drawing all
reasonable inferences in that party's favor. Mesnick v.
General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), cert.
denied, 504 U.S. 985 (1992). Summary judgment is appropriate
when "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c). "[T]he mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). "Moreover, summary judgment may be
appropriate `[e]ven in cases where elusive concepts such as
motive or intent are at issue, . . . if the non-moving party
rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation.'" Woods v. Friction
Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994) (quoting
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990)). Finally, Fed. R. Civ. P. 56(c) "mandates the
-22- 22
entry of summary judgment, . . . upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
2. Retaliatory Discharge: The Legal Framework
Although Fennell has framed her retaliatory
discharge claims in one federal count and two state law
counts, the parties agree that the well-established
analytical framework used in Title VII retaliation claims
applies to the state law counts as well. Thus, for purposes
of this appeal, we treat all three counts as subsumed in the
Title VII count.
Where, as in this case and in retaliation cases
generally, there is no direct evidence of the defendant's
retaliatory animus, the McDonnell Douglas burden-shifting
framework is used to allocate and order the burdens of
producing evidence. See Mesnick, 950 F.2d at 827 (explaining
the interplay between the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
the standards for summary judgment). To establish a prima
facie case of retaliation, Fennell must show that: (1) she
engaged in protected conduct under Title VII (or here,
Maine's Human Rights Act or Whistleblower's Protection Act);
(2) she suffered an adverse employment action; and (3) a
-23- 23
causal connection existed between the protected conduct and
the adverse action. See, e.g., Hoeppner v. Crotched Mountain
Rehabilitation Ctr., 31 F.3d 9, 14 (1st Cir. 1994).
Once a prima facie showing has been made, the
burden shifts to the defendant to articulate a legitimate,
non-retaliatory reason for its employment decision. See,
e.g., Mesnick, 950 F.2d at 827.9 If the defendant does so,
the ultimate burden falls on the plaintiff to show that the
proffered legitimate reason is in fact a pretext and that the
job action was the result of the defendant's retaliatory
animus. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993); Mesnick, 950 F.2d at 827-28. On summary
judgment, the need to order the presentation of proof is
largely obviated, and a court may often dispense with strict
attention to the burden-shifting framework, focusing instead
on whether the evidence as a whole is sufficient to make out
a jury question as to pretext and discriminatory animus. Id.
at 827.
3. Application to Fennell's Case
9. Mesnick dealt with a claim of retaliation for conduct
protected by the Age Discrimination in Employment Act ("ADEA"). 29 U.S.C. 621-634. The analytical framework for ADEA discrimination and retaliation cases was patterned after the framework for Title VII cases, and our precedents are largely interchangeable. See, e.g., Hazel v. U.S. Postmaster
General, 7 F.3d 1, 3-4 (1st Cir. 1993) (applying McDonnell
Douglas framework and a unified retaliation analysis to
claims under both the ADEA and Title VII).
-24- 24
Although First Step refutes that Fennell has even
made out a prima facie case of retaliation, the district
court apparently assumed that she did. The plaintiff's prima
facie burden is not onerous, and we find that she met that
burden by demonstrating, among other things, that her
termination occurred shortly after her protected conduct, the
report of harassment. See Oliver v. Digital Equip. Corp.,
846 F.2d 103, 110 (1st Cir. 1988) (discharge soon after
protected conduct is strongly suggestive of retaliation).
Fennell cannot seriously dispute that First Step
met its burden of articulating a legitimate, non-retaliatory
reason for her discharge: that economic and business reasons
led First Step to decide to lay her off, and that the
decision was made prior to her complaint. Thus, we arrive at
the dispositive question: whether Fennell has, on the summary
judgment record, established genuine issues of fact that (1)
First Step's business reasons were a pretext and (2) her
discharge was in retaliation for her reports of sexual
harassment.
The district court granted summary judgment because
it held that Fennell had not shown a genuine issue as to the
fact that First Step decided to discharge her before she made
the report of sexual harassment. The linchpin of the
district court's holding was the October 25 memo, listing
Fennell among those to be laid off. Fennell asserts that the
-25- 25
memo was fabricated some time after her report of harassment.
We discussed Fennell's assertions of fabrication in analyzing
the discovery issue, and we found them to be unpersuasive.
For the reasons stated in that analysis, we hold that Fennell
has not presented evidence that would allow a reasonable jury
to find that the memorandum was fabricated. At bottom,
Fennell's fabrication claims amount to no more than
"conclusory allegations, improbable inferences, and
unsupported speculation." Medina-Munoz, 896 F.2d at 8.
In addition to the memo, First Step also provided
the uncontroverted affidavits of three employees who swear
that Fennell was on a list of employees to be laid off, and
they saw the list before she lodged her complaint of
harassment. Given the memo and the three affidavits, we
conclude that Fennell has failed to demonstrate a genuine
issue as to whether First Step's layoff decision predated her
complaint. Thus, no reasonable jury could find that First
Step's business-related, non-retaliatory reason for
Fennell's layoff decision was a pretext -- it cannot have
retaliated for conduct that had yet to occur.
Fennell also argues that even if the memo was
legitimate and predated her report, the job action
contemplated in the memo was vague and not final, and that
retaliatory animus motivated her ultimate termination. We
are not persuaded. The October 25 memo used the term
-26- 26
"layoff," and Smith used the same term in his December 20,
1993, letter informing Fennell of her discharge. The next
day, Tucker wrote Fennell a letter stating that her position
had been eliminated. Fennell argues that the October 25 memo
contemplated a "layoff," from which she would be called back
when work was available, but that in fact she was terminated
and her position eliminated. First Step counters that she
was laid off because her position was eliminated, and that it
would have brought Fennell back from layoff if another
supervisory position opened for which she was qualified.
First Step states that it did not transfer Fennell to a non-
supervisory position because it does not generally demote
supervisors to line positions, believing that morale problems
result. Our view of the summary judgment record, viewed
favorably to Fennell, leads to the inescapable conclusion
that the pre-complaint decision to "lay off" Fennell was a
decision to eliminate her position, rather than a temporary
measure with the expectation that she would be called back.
After reviewing the entire record, we hold that Fennell has
not presented evidence that would allow a reasonable jury to
find that First Step had originally decided merely to "lay
off" Fennell but then later decided to take a more permanent
action in retaliation for her complaint.
We also reject Fennell's argument that the pre-
complaint decision to lay her off was not a final decision,
-27- 27
and that it could have been reconsidered later, but was not
because of her complaint. We agree with the district court
that "could have" is not enough. Fennell has presented no
evidence that there was later reconsideration or that the
decision was not final. We recognize that certain other
employees on the layoff list were ultimately not laid off
because of changed circumstances relevant to their jobs, but
that fact standing alone says little or nothing about any
changes in circumstance that might have led to
reconsideration of Fennell's job future.
Fennell makes one other argument worthy of mention.
She claims that after her complaint of sexual harassment she
was "immediately demoted to a lesser position." She does
not, however, develop this argument in her brief, and we are
not clear whether she raises it as a separately actionable
act of retaliation or as evidence of the retaliatory animus
behind her termination. In either case, we agree with the
district court's rejection of her demotion argument. It is
difficult to see how her assignment to packing duties during
the Christmas season rush amounts to a demotion, given that
in her affidavit she described her earlier duties thus: "I
spent most of my time as Warehouse Lead on the warehouse
floor working alongside other warehouse employees." The
demotion argument has not raised any genuine issues of fact
as to retaliation, and in any event the argument is waived
-28- 28
for failure to develop it fully in her brief. See, e.g.,
Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990)
(explaining that issues adverted to on appeal in a
perfunctory manner, unaccompanied by some developed
argumentation, are deemed to have been abandoned).
Fennell points to a variety of other facts as proof
that First Step could not have wanted to discharge her for
legitimate business reasons. These other facts include her
value as an employee, her awards for Employee of the Month
and the Year, her utility in performing the annual inventory
to be performed shortly after her layoff, the fact that the
First Step catalogue was featured on the Oprah Winfrey show
shortly before her layoff, and First Step's plans for a large
mailing of catalogues in January 1994. In essence, she
attempts to second-guess First Step's business judgment that
a leaner warehouse management team -- that is, a team without
Fennell -- was desirable. None of these other assertions
creates a genuine issue of fact as to whether First Step's
reasons for termination were a pretext, in light of the
October 25 memo and the three affidavits averring that the
layoff list was made before Fennell's complaint. "Courts may
not sit as super personnel departments, assessing the merits
-- or even the rationality -- of employers' nondiscriminatory
business decisions." Mesnick, 950 F.2d at 825.
-29- 29
In the absence of a genuine issue as to the
authenticity of the October 25 memo scheduling Fennell for a
layoff, Fennell is left with only conjecture and innuendo
that her termination was an act of retaliation. The district
court appropriately granted summary judgment for First Step.
-30- 30
III. III.
Conclusion Conclusion
For the foregoing reasons, the judgment of the
district court is affirmed.
-31- 31