Lennon v. Rubin

• Court: Court of Appeals for the First Circuit
• Decided: February 11, 1999
• Docket: 98-1634
• Status: Published

Opinion

USCA1 Opinion

                United States Court of Appeals

                    For the First Circuit

                     ____________________

                               

No. 98-1634

                               

                       JOHN J. LENNON,

                               

                    Plaintiff, Appellant,

                               

                              v.

                               

           ROBERT RUBIN, SECRETARY OF THE TREASURY,

                               

                     Defendant, Appellee.

                               

                     ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

                               

              FOR THE DISTRICT OF MASSACHUSETTS

                               

       [Hon. Reginald C. Lindsay, U.S. District Judge]

         [Hon. William G. Young, U.S. District Judge]

                     ____________________

                               

                            Before

                               

                    Boudin, Circuit Judge,

Gibson, Senior Circuit Judge,

and Lynch, Circuit Judge.



____________________



     Edward L. Hoban for appellant.

     Rayford A. Farquhar, Assistant U.S. Attorney, with whom

Donald K. Stern, U.S. Attorney, was on brief, for appellee.    



                     ____________________

                               

                       February 3, 1999

                     ____________________ 


LYNCH, Circuit Judge.  John J. Lennon filed an action

asserting that his employer, the Bureau of Alcohol, Tobacco, and

Firearms ("ATF") in the Department of the Treasury, retaliated

against him in violation of the Age Discrimination in Employment

Act ("ADEA") and Title VII for filing age discrimination claims,

discriminated against him in violation of Title VII on the basis

of his status as a white male, and violated the Privacy Act

through prohibited recordkeeping and disclosure of information. 

Lennon appeals from Judge Young's dismissal of his retaliation

claims and Judge Lindsay's grant of summary judgment to the

defendant on Lennon's remaining claims.  We affirm.

  We outline the most salient facts only briefly. 

Lennon was a "GS-1811-12, Criminal Investigator, Special Agent"

at ATF.  Prior to November 1992, he made a number of age-based

discrimination and retaliation complaints against Terence

McArdle, the "Special Agent in Charge" of the Boston ATF office

who was one of Lennon's supervisors.  "On November 10, 1992,

while driving in an automobile with [an African-American ATF

agent], as the result of a near accident, Lennon made a

spontaneous remark that would be considered racially

derogatory."  Amended Complaint  6.  After the agent

complained, Lennon was suspended for three days.

  On April 17, 1995, the ATF announced a vacancy for a

GS-1811-13 Senior Operations Officer, for which Lennon applied

and was placed on the "best qualified" list.  McArdle ultimately

selected Joycelyn Christopher, an African-American woman, to

fill the position.

  Lennon filed suit on October 16, 1996.  After the

defendant moved to dismiss all of the retaliation claims, Judge

Young granted the motion, stating in a written order that the

Title VII retaliation counts failed to state a claim because

Lennon's underlying complaints of discrimination had been based

on age, not on race, color, sex or national origin.  Both

parties subsequently moved for summary judgment on the remaining

claims.  In a ruling from the bench, Judge Lindsay denied

Lennon's motion and granted summary judgment to the defendant on

the discrimination and Privacy Act claims, remarking with

respect to the former that "if the plaintiff could make a prima

facie case, he is unable to establish a triable issue[] that the

. . . nondiscriminatory reason[] offered by the government [is]

pretext."

  We review the disposition of a motion to dismiss de

novo, taking the alleged facts to be true.  See LaChapelle v.

Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998).  We

likewise review the district court's grant of summary judgment

de novo, considering the facts in the light most favorable to

the nonmoving party.  See Udo v. Tomes, 54 F.3d 9, 12 (1st Cir.

1995).  However, we review the district court's decision as to

"the evidentiary materials it will consider in deciding a motion

for summary judgment" only for "a clear abuse of discretion." 

EEOC v. Green, 76 F.3d 19, 24 (1st Cir. 1996); see also Schubertv. Nissan Motor Corp., 148 F.3d 25, 29-30 (1st Cir. 1998).  

  We reject Lennon's challenge to the district court's

dismissal of his Title VII claims for retaliation based on age

discrimination complaints.  Lennon grounds his argument that

Title VII covers age-related retaliation complaints on the

language of 42 U.S.C.  2000e-16(c), which protects employees of

the federal government.  That section states:

            Within 90 days of receipt of notice of final action

                 taken by a department, agency, or unit referred to in

                 subsection (a) of this section, or by the Equal

                 Employment Opportunity Commission upon an appeal from

                 a decision or order of such department, agency, or

                 unit on a complaint of discrimination based on race,

                 color, religion, sex or national origin, brought

                 pursuant to subsection (a) of this section, Executive

                 Order 11478 or any succeeding Executive orders, or

                 after one hundred and eighty days from the filing of

                 the initial charge . . . , an employee . . . , if

                 aggrieved by the final disposition of his complaint,

                 or by the failure to take final action on his

                 complaint, may file a civil action as provided in

                 section 2000e-5 of this title . . . .

     

Lennon notes that Executive Order 11478 has been amended to

prohibit agencies from discrimination based on age and claims

that this prohibition is incorporated into Title VII through the

reference to the Executive Order. 

          Lennon's argument founders on the plain language of

the statute.  The provision on which Lennon relies specifically

states that the complaint of discrimination must be "based on

race, color, religion, sex or national origin."  Executive Order

11478 is merely one example of the various prohibitions on

executive branch discrimination that such a complaint may be

"brought pursuant to."  42 U.S.C.  2000e-16(c); see also id. 

2000e-16(a) (stating that federal employment "shall be made free

from any discrimination based on race, color, religion, sex, or

national origin"); cf. Fears v. Catlin, 377 F. Supp. 291, 293

(D. Colo. 1974) (noting that Executive Order 11478 was enacted

in 1969 and that "it appears that  2000e-16(c) was meant to

cover claims that arose prior to the enactment of [Title VII's

section on federal employees]").  The fact that the Executive

Order forbids age discrimination as well as race and sex

discrimination does not expand the categories on which a

complaint may be based or the reach of Title VII.

          Further, Lennon's construction would render

superfluous the ADEA's prohibition on age discrimination against

federal government employees.  See 29 U.S.C.  633a; see alsoLavery v. Marsh, 918 F.2d 1022, 1025 (1st Cir. 1990) ("[T]he

ADEA amendment prohibiting federal-sector age discrimination was

patterned after 42 U.S.C. section 2000e-16(a), (b), the

amendments to Title VII extending that statute's protection to

federal employees.").  Accordingly, since Lennon's previous

complaints related to age rather than to a category protected

under Title VII, his retaliation claims are not cognizable under

Title VII. 

          Lennon also challenges the district court's dismissal

of his claim of retaliation in violation of the ADEA.  We are

hampered in our review of this dismissal by the fact that

neither Lennon nor the defendant ever identifies the basis given

by the court for the ruling.  Lennon, without record support,

states that the court's ruling was based on an interpretation of

the relevant statute; the government's motion to dismiss

suggests it was based on the facts alleged.  A transcript of the

judge's ruling from the bench has not been provided by the

parties and does not appear in the record transferred from the

district court (most likely because no one ordered a

transcription of the proceedings).  "It is appellants'

responsibility to provide the court with intelligible briefs and

appendices sufficient to support their points on appeal, failing

which the court in its discretion . . . may scrutinize the

merits of the case insofar as the record permits, or may dismiss

the appeal if the absence of a [record] thwarts intelligent

review.  Accordingly, . . . wherever material uncertainties

result from an incomplete or indecipherable record and impede or

affect our decision, we resolve such uncertainties against

appellants."  Credit Francais International, S.A. v. Bio-Vita,

Ltd., 78 F.3d 698, 700-01 (1st Cir. 1996) (citations and

internal quotation marks omitted).  Lennon has not adequately

provided a record and his discussion of this claim is a cursory

one (including no analysis of the statute that apparently needs

to be interpreted and consisting of an assertion that he has

established a prima facie case and a citation to an ADEA case

involving a federal employee that did not analyze 29 U.S.C.

 633a, the relevant ADEA section).  See generally United Statesv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough

merely to mention a possible argument in the most skeletal way,

leaving the court to do counsel's work, create the ossature for

the argument, and put flesh on its bones.").  We decline to

disturb the district court's ruling.

          We also uphold the district court's grant of summary

judgment on Lennon's Title VII race and sex discrimination

claims.  As an initial matter, we find no abuse of discretion in

the district court's denial of Lennon's motion to strike the

declaration of Daniel M. Hartnett.  That declaration concerned

which ATF employee had official responsibility to fill the

Senior Operations Officer position that Lennon claims he was

illegally denied.  The motion to strike was based on an alleged

lack of personal knowledge by the declarant and on the

contention that the declaration drew a legal conclusion. 

However, the district court could reasonably have found that

Hartnett, former Deputy Director and Associate Director of Law

Enforcement at ATF, was competent to discuss the existence and

effect of various ATF orders that were issued during his tenure. 

          In any event, eliminating Hartnett's declaration from

consideration in connection with the summary judgment motions

would not make a difference in the outcome.  See New England

Anti-Vivisection Soc'y, Inc. v. United States Surgical Corp.,

889 F.2d 1198, 1204 (1st Cir. 1990).  Lennon focuses on the

wrong question.  He focuses on the selecting authority, argues

that through the mechanical operation of various ATF orders

there was no delegation of selecting authority for the position

at issue for a period of approximately four years, and concludes

that "[t]he penalty for not being completely faithful to you own

plan [sic] is you lose."  But Lennon never contests the fact

that an ATF employee named Terence McArdle actually chose an

African-American woman, Joycelyn Christopher, over Lennon for

the operations position, or that the ATF enforced McArdle's

choice.  Whether McArdle lost his official authorization is not

determinative of whether the actual selection was discriminatory

on the basis of race or sex, and does not itself invalidate the

defendant's articulation of a "legitimate, nondiscriminatory

reason" for the employment action.  Udo, 54 F.3d at 12 (internal

quotation marks omitted).

          Defendant did indeed articulate such a

nondiscriminatory reason (we bypass whether Lennon adequately

established a prima facie case of race and sex discrimination). 

Defendant presented evidence that the Senior Operations Officer

position requires, inter alia, an ability to work well with

others, to exercise discretion, tact, and diplomacy, and to

resolve conflicts.  Defendant also presented evidence that,

while Christopher (the person selected) excelled in these areas

and had successfully performed some of the required functions,

Lennon had difficulty working with others, was not tactful, and

voiced his opinions without restraint.  Defendant documented a

number of specific incidents to back up these assessments,

including one in which Lennon used a racially derogatory term in

front of an African-American ATF agent with whom he was working.

          We have carefully examined all of the evidence

presented by Lennon, including the evidence that Lennon claims

was not considered by the district court, and we agree with the

district court's conclusion that Lennon did not counter the

defendant's articulated reason by "introduc[ing] sufficient

evidence . . . (1) that the employer's articulated reason for

[its treatment of] the plaintiff is a pretext, and (2) that the

true reason is discriminatory."  Mulero-Rodriguez v. Ponte,

Inc., 98 F.3d 670, 674 (1st Cir. 1996) (emphasis added); see

also Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 12-13 (1st

Cir. 1998).  Taken most favorably to Lennon, some of the

evidence he presented to the district court might raise a

suggestion of pretext, but a reasonable factfinder could not

make a finding of discriminatory animus.  See Fisher v. Vassar

College, 114 F.3d 1332, 1337 (2d Cir. 1997) (en banc)

("Individual decision-makers may intentionally dissemble in

order to hide a reason that is non-discriminatory but unbecoming

or small-minded, such as back-scratching, log-rolling, horse-

trading, institutional politics, envy, nepotism, spite, or

personal hostility."), cert. denied, 118 S. Ct. 851 (1998).  

          The district court also correctly granted summary

judgment on Lennon's claim of improper disclosure of records in

violation of the Privacy Act.  Lennon came forward with a memo

from one M.J. Wilkins, an employee in the ATF Employee and Labor

Relations Branch, stating that she was forwarding a package of

materials relating to Lennon to the "ATF EEO Task Force," a

group that included individuals from outside the agency. 

However, Wilkins testified that she actually gave the package

only to Marjorie Kornegay, the ATF's Assistant Director for

Equal Employment Opportunity Programs and a member of the Task

Force, and Kornegay declared that she never gave the package to

the other Task Force members and that the Task Force never

reviewed any material relating to Lennon.  See 5 U.S.C. 

552a(b)(1).  Lennon weakly responds that whether the file was

actually reviewed by the Task Force "is the question of fact

that the plaintiff wants decided by a fact finder, not an

affidavit," and that the question "cannot be decided by some

sort of statement from Kornegay."  These arguments misapprehend

Lennon's burden at the summary judgment stage, where "[b]rash

conjecture, coupled with earnest hope that something concrete

will eventually materialize, is insufficient."  Dow v. United

Bhd. of Carpenters & Joiners, 1 F.3d 56, 58 (1st Cir. 1993); see

also Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991) ("Genuine issues of material fact are not the stuff of an

opposing party's dreams.  On issues where the nonmovant bears

the ultimate burden of proof, he must present definite,

competent evidence to rebut the motion.").  On the evidence

presented, no reasonable factfinder could find that there was an

impermissible disclosure.

          Finally, our de novo review discloses no error in the

district court's grant of summary judgment for the defendant on

Lennon's Privacy Act claim that the defendant intentionally or

willfully maintained illegal systems of records that had an

adverse effect on him.  See 5 U.S.C.  552a(g)(1), (4).  We

pause only to note that the district court did not abuse its

discretion in failing to strike Exhibits 14 and 15 to

defendant's statement of undisputed material facts, which

consisted of charts listing and describing each allegedly

illegally maintained record and citing a source of authority for

the maintenance of each record.  Lennon contends that these

exhibits were not authenticated and do not fall into the class

of materials identified in Federal Rule of Civil Procedure 56. 

However, since all but one of the records listed and described

in the exhibits were separately reproduced elsewhere in

defendant's submission, and since the remainder of the exhibits

consists of citations to and quotations from legal authority,

the district court was entitled to consider the exhibits, which

were referenced in defendant's memoranda of law, as legal

argument not subject to strictures on evidentiary submissions. 

          We have considered all of Lennon's properly presented

arguments and find them without merit.  Accordingly, the

judgment of the district court is affirmed.