Lawton v. State Mutual

• Court: Court of Appeals for the First Circuit
• Decided: December 3, 1996
• Docket: 96-1609
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________


No. 96-1609


MARYANN E. LAWTON,



                                Plaintiff, Appellant,



                                          v.



                   STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA,



                                 Defendant, Appellee.



                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________



                              _________________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                            Aldrich, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                              _________________________



               Roy  A.  Bourgeois,  with whom  Nadia  R.  Totino Beard  and
               __________________              _______________________

          Bourgeois, Dresser & White were on brief, for appellant.
          __________________________

               Neil  Jacobs, with whom Daniel W. McCarthy and Hale and Dorr
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          were on brief, for appellee.



                              _________________________


December 2, 1996

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SELYA, Circuit Judge.   Plaintiff-appellant Maryann  E.
                    SELYA, Circuit Judge.
                           _____________



          Lawton alleges that her former employer, defendant-appellee State



          Mutual Life Assurance  Company of America, discriminated  against



          her  on account of her  gender, in violation  of both federal and



          state  law.  See  42 U.S.C.    2000e-5 (1994); Mass.  Gen. L. ch.
                       ___



          151B,   4(1) (1996).  The district court granted summary judgment



          in the  employer's favor.  See  Lawton v. State  Mut. Life Assur.
                                     ___  ______    _______________________



          Co., 924 F. Supp. 331 (D. Mass. 1996).  Lawton appeals.
          ___



                    We  have  long  proclaimed  that  when  a  lower  court



          produces  a comprehensive,  well-reasoned decision,  an appellate



          court should refrain from writing at length  to no other end than



          to hear  its own words  resonate.  See,  e.g., Ayala v.  Union de
                                             ___   ____  _____     ________



          Tronquistas, 74 F.3d  344, 345  (1st Cir. 1996);  In re San  Juan
          ___________                                       _______________



          Dupont Plaza Hotel Fire Litig., 989 F.2d 36,  38 (1st Cir. 1993).
          ______________________________



          Today,  we practice what we  preach:  having  read the record and



          the  parties'  briefs  with  care,  we affirm  the  judgment  for



          substantially  the reasons elucidated  in the opinion  below.  We



          add only a few comments.



                    First:   The  plaintiff  claims that  her dismissal  on
                    First:
                    _____



          August 23, 1991,  after more  than four years  in State  Mutual's



          employ, constituted a discriminatory act.  In order to prevail on



          such  a  claim in  an  abolition-of-position  case     here,  the



          defendant contends that its  business plan changed, rendering the



          management post  that Lawton  occupied anachronistic    an ousted



          employee must adduce some  proof that the employer did  not treat



          gender  neutrally  in  arriving  at  the  challenged   employment


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decision.   See Vega  v. Kodak Caribbean,  Ltd., 3 F.3d  476, 479
                      ___ ____     ______________________



          (1st Cir. 1993); Holt  v. Gamewell Corp., 797 F.2d 36, 37-38 (1st
                           ____     ______________



          Cir.  1986).   The  district court  determined  that the  summary



          judgment record in this case affords no such substantiation.  See
                                                                        ___



          Lawton,  924  F.  Supp. at  345.    The  plaintiff disputes  this
          ______



          assessment, primarily on the basis that "the sworn testimony of a



          highly  qualified and experienced expert [statistician]" supplies



          the missing link.



                    This  argument  confuses   prunes  with   pomegranates.



          Assuming,   arguendo,  that   the  statistician's   affidavit  is
                      ________



          probative at all,1 it proves only that men, on average, earn more



          in the defendant's employ  than women, and that men,  on average,



          are  more  likely  to be  promoted  than  women.   Even  if these



          aspersions  are taken  as true  (and, thus,  cast certain  of the



          defendant's  employment practices  into disrepute),  salary level



          discrimination,   in  and   of  itself,   is  not   probative  of



          discrimination in layoffs.  Indeed, a coldly calculating employer
                         __ _______



          might  well  seek  to  dismiss its  higher-paid  employees  while



          retaining their  lower-paid counterparts.   Therefore, the  court



          did not  err in  granting summary  judgment on  the abolition-of-



          position claim.



                    Second:   Prior  to  filing a  Title  VII action  in  a
                    Second:
                    ______



          federal   district   court,   a  plaintiff   must   exhaust   her



          administrative  remedies.    Tight  time  limits  constrain  this

                              
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               1State  Mutual   hotly  contests   not  only   the  expert's

          conclusions, but  also his  methodology and the  adequacy of  his

          data base.  We need not resolve this contretemps.



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protocol.  Lawton worked in Massachusetts, and Massachusetts is a



          so-called "deferral jurisdiction"    the commonwealth has its own



          civil  rights statute and agency    so exhaustion  depends on the



          filing  of  a  charge   with  the  Equal  Employment  Opportunity



          Commission within  300 days of the  purported discriminatory act.



          See 42 U.S.C.   2000e-5(3) (1994);  see also Mack v. Great Atl. &
          ___                                 ___ ____ ____    ____________



          Pac.  Tea Co., 871 F.2d  179, 181-82 (1st  Cir. 1989) (describing
          _____________



          operation of statutory  scheme).  Under state law,  the timetable



          is even more compressed.  See Mass.  Gen. L. ch. 151B,   5 (1996)
                                    ___



          (providing that an administrative  complaint must be filed within



          six months after the alleged discriminatory act occurs).



                    In this  case the plaintiff contends  that, in addition



          to  unlawfully  cashiering her,  the  defendant  also refused  to



          promote her on several occasions due to her gender.  She filed an



          administrative  complaint attacking  both the  discharge and  the



          failure  to promote  on  February 17,  1992.   The  first of  the



          withheld promotions  took  place  in  1987,  and  the  other  two



          occurred  in 1990.2  Since all the promotions transpired prior to



          April 24,  1991, more than 300  days elapsed between the  last of



          them and  the date of the administrative  filing.  Thus, they all



          fell outside the applicable limitations period.



                    The  plaintiff tries  to  detour  around this  temporal



                              
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               2The  plaintiff makes  a halfhearted  effort to  implicate a

          fourth (more recent) promotion but, as the district court pointed

          out,  her  belated  reliance  on  this  incident     involving  a

          promotion  for which she never  applied   came  too late because,

          among other things, she never included any reference to it in her

          administrative complaint.  See  Lawton, 924 F. Supp. at 338 n.6.
                                     ___  ______



                                          4



barrier.   She  clings to  the  notion that  her case  presents a



          "continuing violation," thereby allowing her to reach back beyond



          the normal  limitations period to  the earlier promotions.   See,
                                                                       ___



          e.g., Sabree v. United  Bhd. of Carpenters and Joiners,  921 F.2d
          ____  ______    ______________________________________



          396,  400  (1st  Cir.  1990)  (explicating  continuing  violation



          theory);  Jensen  v. Frank,  912 F.2d  517,  522 (1st  Cir. 1990)
                    ______     _____



          (same);  Mack, 871  F.2d at  182-83 (same).   The  district court
                   ____



          acknowledged the  legitimacy of the continuing  violation theory,



          but found it inapplicable to Lawton's circumstances.  Lawton, 924
                                                                ______



          F. Supp. at 339-40.  We agree.



                    In general,  continuing violations arise in  one of two



          incarnations.     The   first   incarnation  encompasses   serial



          violations,  that  is,  violations  which comprise  a  number  of



          discriminatory  acts  emanating  from  the   same  discriminatory



          animus,  each of  which constitutes  a separate  wrong actionable



          under Title VII.  See Jensen, 912 F.2d at 522; Mack,  871 F.2d at
                            ___ ______                   ____



          183.   To give purchase to  this type of continuing violation, at



          least  one  act  in the  series  must  have  occurred within  the



          limitations period.  See Mack, 871 F.2d at 183.
                               ___ ____



                    Lawton cannot  clear this hurdle:   as we  already have



          indicated,  the foregone  promotions all  occurred more  than 300



          days before  she initiated agency-level proceedings.   Her firing



          (which  took place within the  300-day period) does  not fill the



          void:   that  act  is  of  a  wholly  different  character,  and,



          moreover, it has  not been traced  to any discriminatory  animus.



          See  supra.    Common  sense  teaches  that  a  plaintiff  cannot
          ___  _____


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resuscitate time-barred  acts, said to be  discriminatory, by the



          simple  expedient  of  linking  them  to  a  non-identical,  non-



          discriminatory, non-time-barred act.



                    The  other method by which  a plaintiff can establish a



          continuing  violation  is by  demonstrating  the  existence of  a



          systemic violation.   "A systemic  violation has its  roots in  a



          discriminatory  policy  or practice;  so  long as  the  policy or



          practice  itself   continues  into   the  limitation   period,  a



          challenger  may be  deemed  to have  filed  a timely  complaint."



          Jensen,  912 F.2d  at 523.   Lawton  asserts that she  meets this
          ______



          criterion, and  that, therefore,  her claim is  not pretermitted.



          This assertion cannot withstand scrutiny.



                    First and foremost, the plaintiff never articulated any



          particular  discriminatory  policy  or practice  in  the district



          court.   In  the absence  of such  an articulation,  her systemic



          violation claim fails.  See Mack, 871 F.2d at 184 (describing the
                                  ___ ____



          plaintiff's   burden   to   demonstrate   that   "a   discernible



          discriminatory policy was in effect,  and injured her, during the



          limitations  period").   The generalized  references made  by the



          plaintiff  in  the  lower  court were  patently  insufficient  to



          satisfy the applicable standard.



                    Confronted with  this omission at oral  argument before



          us, the plaintiff's attorney, in  what amounts to confession  and



          attempted avoidance, defined the alleged discriminatory policy as



          "the practice of not  open-posting those jobs which  are gateways



          into the  mainstream  career path  [at  State Mutual],  with  the


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result  that  those are  reserved for  the  domain of  men making



          decisions about men."   This rhetorical flourish  comes too late,



          for  the plaintiff did not  enunciate the supposed  policy in the



          proceedings below  (administrative or  judicial).  No  precept is



          more  firmly  settled  in  this circuit  than  that  theories not



          squarely raised and seasonably  propounded before the trial court



          cannot rewardingly be advanced on appeal.3  See, e.g., Teamsters,
                                                      ___  ____  __________



          Chauffers,  Warehousemen  &  Helpers   Union,  Local  No.  59  v.
          _____________________________________________________________



          Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992);  McCoy v.
          _____________________                                    _____



          Massachusetts  Inst. of Tech., 950  F.2d 13, 22  (1st Cir. 1991),
          _____________________________



          cert. denied, 504 U.S. 910 (1992).
          _____ ______



                    In  all events,  the late-blooming  articulation offers



          too  little   substance;  the   stated  policy,  even   if  fully



          considered, would not support  the weight of Lawton's case.   The



          record  is  devoid  both of  evidence  that  might  explicate the



          parameters of  the policy (e.g.,  there is  no proof as  to which



          positions are "gateways" or how one might distinguish "mainstream



          career paths"),  and of  evidence that  might show  the continued



          existence of the policy  during the limitations period.   What is
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          more, there is no evidence that Lawton herself was injured by any



          such  policy during  the  300 days  preceding  her initiation  of
                       ____________________________________________________



          administrative   proceedings.     Consequently,   she   has   not
          ____________________________



          established the kind of systemic violation which would permit her



          to evade the time bar that blocks her path. 

                              
          ____________________



               3For that matter, the plaintiff did not enunciate the policy

          in her appellate briefs.   This, too, is a  disqualifying factor.

          See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).
          ___ _________    ______________



                                          7



Third:   The plaintiff's fallback position  is that the
                    Third:
                    _____



          district  court acted  precipitously.   She asseverates  that her



          claims should not have been adjudicated on summary judgment, but,



          at   the  very  least,  ought  to  have  gone  to  trial.    This



          asseveration lacks merit.



                    The proper  province of summary judgment  "is to pierce



          the  boilerplate of the pleadings and assay the parties' proof in



          order to determine whether trial is actually required."  Wynne v.
                                                                   _____



          Tufts  Univ. Sch.  of Med., 976  F.2d 791,  794 (1st  Cir. 1992),
          __________________________



          cert.  denied, 507 U.S. 1030  (1993).  Though  the district court
          _____  ______



          must  "interpret the record in  the light most  hospitable to the



          nonmoving  party, reconciling  all  competing inferences  in that



          party's  favor," McIntosh v. Antonino,  71 F.3d 29,  33 (1st Cir.
                           ________    ________



          1995), the nonmovant has a corresponding obligation  to offer the



          court more than steamy  rhetoric and bare conclusions.   See id.;
                                                                   ___ ___



          see also  Morris v. Government Dev.  Bank, 27 F.3d 746,  748 (1st
          ___ ____  ______    _____________________



          Cir. 1994); Medina-Munoz  v. R.J. Reynolds Tobacco Co.,  896 F.2d
                      ____________     _________________________



          5, 7-8  (1st Cir. 1990).  This principle is accentuated where, as



          here, a  Rule 56 motion targets  an issue on which  the nonmoving



          party must carry the devoir of persuasion.  In that  setting, the



          nonmovant must "produce specific  facts, in suitable  evidentiary



          form," sufficient to limn  a trialworthy issue.  Morris,  27 F.3d
                                                           ______



          at 748.  Failure to  do so allows the summary judgment  engine to



          operate at full throttle.  See, e.g., Kelly v. United States, 924
                                     ___  ____  _____    _____________



          F.2d 355, 358 (1st Cir. 1991) (warning that  "the decision to sit



          idly by and allow the summary judgment proponent to configure the


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record is likely to prove fraught with consequence").



                    The district  court faithfully applied these  tenets in



          determining  that no  genuine  issue of  material fact  loomed in



          respect to either the abolition-of-position or failure-to-promote



          claims.   Although Lawton  labors to show  discrepancies here and



          there,  "genuineness and  materiality are not  infinitely elastic



          euphemisms  that may  be stretched  to fit  whatever pererrations



          catch a litigant's fancy."  Blackie v. State of Me., 75 F.3d 716,
                                      _______    ____________



          721 (1st  Cir. 1996).   On the key  factual issue related  to her



          ouster   the presence or absence of the requisite  discriminatory



          intent   the probative evidence points in  only one direction.  A



          factfinder,  drawing reasonable  inferences  from the  nisi prius
                               __________



          roll,  could  not conclude  without  undue  speculation that  the



          defendant  acted from  a gender-based  animus in  eliminating the



          plaintiff's  job.   Thus, brevis  disposition was  appropriate on
                                    ______



          that issue.   See Medina-Munoz,  896 F.2d at  8 (explaining  that
                        ___ ____________



          summary  judgment may be granted  on "intent" issues).   So, too,



          with the  promotion-related  claims; questions  dealing with  the



          applicability  and effect  of the passage  of time  on particular



          sets  of facts often are appropriately disposed of at the summary



          judgment stage,  see, e.g., Rivera-Muriente v. Agosto-Alicea, 959
                           ___  ____  _______________    _____________



          F.2d 349, 352 (1st Cir. 1992); Jensen, 912 F.2d at  520, and this
                                         ______



          case fits snugly within that paradigm.4  

                              
          ____________________



               4When a defendant  moves for summary judgment  based in part

          on a plausible claim that the plaintiff's suit is outlawed by the

          passage of  time, "the onus  of identifying  a trialworthy  issue

          customarily  falls on the plaintiff."   McIntosh, 71  F.3d at 33.
                                                  ________

          Here, Lawton has not identified any such issue. 



                                          9



Mindful of the district court's more exegetic treatment



          of these, and other, matters, we need go no further.


Affirmed.
          Affirmed.
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