January 13, 1993
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1952
MICHAEL PAGANO,
Plaintiff, Appellant,
v.
ANTHONY M. FRANK, POSTMASTER GENERAL, ETC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Norman Jackman, with whom Martha M. Wishart and Jackman &
Roth were on brief, for appellant.
David G. Karro, Attorney, Office of Labor Law, U. S. Postal
Service, with whom A. John Pappalardo, United States Attorney,
and Annette Forde, Assistant United States Attorney, were on
brief, for appellee.
SELYA, Circuit Judge. The United States Postal Service SELYA, Circuit Judge.
prides itself on surmounting obstacles that nature places in its
path.1 In this bitterly contested case, plaintiff-appellant
Michael Pagano, a veteran postal worker, complains that, whatever
success the Service may have encountered in its struggle with the
elements, it has been unable to surmount a man-made obstacle:
prejudice in the workplace. The district court ruled in favor of
the defendant. Finding appellant's arguments to be unpersuasive,
we affirm.
I. BACKGROUND
The Lynnfield Post Office hired appellant as a part-
time mail carrier in 1973. He became a full-time employee two
years later, working primarily as a clerk at a branch office. In
1983,
appellant became a dispatcher at the main post office under the
direct supervision of James Walsh. Walsh and Pagano did not
enjoy a cordial working relationship a situation that perhaps
stemmed from the latter's propensity for unauthorized absences.
When Walsh was promoted to postmaster in mid-1984, Paul
Hentschel became Pagano's supervisor. On December 2, 1984,
Hentschel sent appellant an admonitory letter regarding frequent
tardiness and excessive use of sick leave. A second warning
letter, issued exactly one year later, cited continuing instances
1An inscription on the exterior of the main New York City post office, often thought to be the Postal Service's motto, reads: "Neither snow, nor rain, nor heat, nor gloom of night stays these couriers from their appointed rounds." (adapted from VIII Herodotus, Histories 98).
of unpunctuality and sick leave abuses during a two-month period
ending December 2, 1985.
Notwithstanding these admonitions, appellant persisted
in his moratory ways. Hentschel suspended him for seven days in
January (later reduced to five) and fourteen days in March (later
reduced to seven). Seeing no improvement, Hentschel issued a so-
called "notice of removal" on July 15, 1986 (later withdrawn),
and reissued it on October 22, 1986. During the ensuing
grievance proceedings, Walsh overrode Hentschel's action and
authorized a "last chance" agreement. Although the agreement
contained a promise that appellant would report for work
regularly and punctually, this covenant was honored mainly in the
breach: appellant was absent or late nineteen times during the
four-month period ending March 23, 1987. Hentschel discharged
appellant in May of that year, citing his "lack of dependability
in reporting and not being available for duty."
Three months after his termination, appellant filed a
formal administrative complaint with the Postal Service's equal
employment opportunity office, alleging that he was dismissed
because of his employer's animus against persons of Italian
origin.2 For the next three years, appellant vigorously pursued
2Appellant originally claimed that a second discriminatory animus, arising out of his role in the investigation of a sexual harassment complaint, contributed to his difficulties. He has, however, abandoned this theory on appeal. Accordingly, we pass over it. See United States v. Slade, F.2d , n.3 (1st
Cir. 1992) [No. 92-1176, slip op. at 6 n.3] (reiterating the general rule that "theories neither briefed nor argued on appeal are deemed to have been waived").
his case on the administrative level. Receiving no satisfaction,
he brought suit against the Postmaster General in the United
States District Court for the District of Massachusetts.
Appellant docketed his complaint in the district court
on August 7, 1990. On February 19, 1992, a magistrate judge
denied his motion for leave to file an amended complaint.
Several months thereafter, the district court granted the
defendant's motion for summary judgment. This appeal ensued.
II. THE NEED TO OBJECT TO A MAGISTRATE'S ORDER
As a preliminary matter, appellant contends that the
district court erred in denying his motion to add counts alleging
wrongful discharge and breach of contract. The facts are as
follows. Appellant's motion to amend his complaint was filed on
January 10, 1992. The district judge referred the motion to a
magistrate judge who denied it on grounds of futility, ruling
that the additional claims were both preempted by Title VII and
that, moreover, the wrongful discharge claim failed to comport
with the Federal Tort Claims Act. Appellant took no further
action. Because appellant failed to object to the magistrate's
order within the prescribed ten-day period, see Fed. R. Civ. P.
72(a), we cannot consider this assignment of error.3
3We analyze this point under Fed. R. Civ. P. 72(a) partially because appellant, in post-argument briefing before us, explicitly invited that characterization. However, even if we viewed the magistrate's denial of the motion to amend as implicating 28 U.S.C. 636(b)(1)(B) and Fed. R. Civ. P. 72(b) rather than 28 U.S.C. 636(b)(1)(A) and Rule 72(a), the result that we reach would not be affected. See Park Motor Mart, Inc.
v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980) (holding
that, in respect to a magistrate's recommended disposition under
Under ordinary circumstances a motion to amend a
complaint is "a pretrial matter not dispositive of a claim or
defense of a party" within the purview of Fed. R. Civ. P. 72(a).
See Walker v. Union Carbide Corp., 630 F. Supp. 275, 277 (D. Me.
1986); see also 28 U.S.C. 636(b)(1)(A) (providing that a
district judge "may designate a magistrate to hear and determine
any pretrial matter," with certain enumerated exceptions not
relevant here). A party displeased by a magistrate's order on a
nondispositive motion must serve and file objections to the order
within ten days. See Fed. R. Civ. P. 72(a); see generally 28
U.S.C. 636(d) (congressional grant of rulemaking power). If
the aggrieved party preserves his rights in this fashion, the
district judge can set aside the magistrate's ruling if he finds
it to be "clearly erroneous or contrary to law." 28 U.S.C.
636(b)(1)(A); Fed. R. Civ. P. 72(a). If, however, the aggrieved
party sits idly by and fails to object within the prescribed
period, he "may not thereafter assign as error a defect in the
magistrate's order . . . ." Id.; see also Rule 2(b), Rules for
U.S. Magistrates in the United States District Court for the
District of Massachusetts (implementing 28 U.S.C.
636(b)(1)(A), (d) and Civil Rule 72 (a)).
In this instance, Pagano did not object to the
section 636(b)(1)(B), "a party 'may' file objections within ten days or he may not, as he chooses, but he 'shall' do so if he wishes further consideration"); accord Davet v. Maccarone, 973
F.2d 22, 30-31 (1st Cir. 1992); Templeman v. Chris Craft Corp.,
770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021 (1985);
Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983).
magistrate's denial of the motion to amend. That ends the
matter. Congress granted the courts of appeals jurisdiction to
hear appeals "from all final decisions of the district courts of
the United States." 28 U.S.C. 1291. We have held that for a
magistrate's decision to be "final" within the meaning of the
statute it "must have been reviewed by the district court, which
retains ultimate decision-making power." United States v. Ecker,
923 F.2d 7, 8 (1st Cir. 1991) (quoting Siers v. Morrash, 700 F.2d
113, 115 (3d Cir. 1983)).4 In other words, when, as now, a
litigant could have tested a magistrate's ruling by bringing it
before the district judge, but failed to do so within the
allotted ten-day period, he cannot later leapfrog the trial court
and appeal the ruling directly to the court of appeals. See
Unauthorized Practice of Law Comm. v. Gordon, F.2d ,
(1st Cir. 1992) (per curiam) [No.92-1710, slip op. at 7-8];
McKeever v. Block, 932 F.2d 795, 799 (9th Cir. 1991); Singletary
v. B.R.X., Inc., 828 F.2d 1135, 1137 (5th Cir. 1987); Siers, 700
F.2d at 116; see also Ecker, 923 F.2d at 9 (holding that the
court of appeals cannot undertake direct review of a magistrate's
order on a nondispositive pretrial motion in a criminal case);
United States v. Renfro, 620 F.2d 497, 500 (5th Cir.) (same),
cert. denied, 449 U.S. 921 (1980).
Because appellant took no steps to have the district
4Of course, when magistrates sit as de facto district judges
by consent of the litigants under 28 U.S.C. 636(c), they can enter final, appealable judgments. See 28 U.S.C. 636(c)(3).
However, section 636(c) has no applicability in the instant case.
judge review the magistrate's denial of the motion to amend, he
is precluded from contesting the merits of that order in the
present proceeding. See Rittenhouse v. Mabry, 832 F.2d 1380,
1387 (5th Cir. 1987) (refusing to entertain a plaintiff's
challenge to a magistrate's denial of his motion to amend his
complaint because "no appeal therefrom to the district court was
ever taken or attempted and the district court did not in any way
review or confirm th[e] order").
III. THE PROPRIETY OF SUMMARY JUDGMENT
We divide our examination of the summary judgment
entered below into two segments. We begin by outlining the Rule
56 standard and then proceed to the underlying Title VII claim.
A. The Summary Judgment Standard.
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 a judgment as a matter of law." Fed. R. Civ. P.
56(c). Where, as in this case, the defendant has invoked Rule 56
and asserted a lack of supporting evidence, the plaintiff must
establish the existence of a triable issue which is both genuine
and material to his claim. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). "In this context, 'genuine' means
that the evidence about the fact is such that a reasonable jury
could resolve the point in favor of the nonmoving party [and]
'material' means that the fact is one that might affect the
outcome of the suit under the governing law." United States v.
One Parcel of Real Property, Etc. (Great Harbor Neck, New
Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992) (citations and
internal quotation marks omitted).
On issues where the nonmovant bears the ultimate burden
of proof at trial, he may not defeat a motion for summary
judgment by relying upon evidence that is "merely colorable" or
"not significantly probative." Anderson, 477 U.S. at 249-50. To
the contrary, the nonmovant must "present definite, competent
evidence to rebut the motion." Mesnick v. General Elec. Co., 950
F.2d 816, 822 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965
(1992). Even when elusive concepts like motive or intent are in
play, "summary judgment may be appropriate if the non-moving
party rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation." Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
We afford plenary review to a district court's grant of
summary judgment. In the course thereof, we must read the record
in the light most amicable to the party contesting summary
judgment, indulging all reasonable inferences in that party's
favor. See, e.g., Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990).
B. The Title VII Claim.
Title VII renders it unlawful for an employer to
"discharge any individual . . . because of such individual's
race, color, religion, sex, or national origin . . . ." 42
U.S.C. 2000e-2(a)(1). To prevail on a Title VII claim, a
plaintiff must prove that the defendant discriminated against him
for a proscribed reason. See Cumpiano v. Banco Santander Puerto
Rico, 902 F.2d 148, 153 (1st Cir. 1990). Because appellant
produced no direct evidence of discriminatory intent, we must
initially analyze his claim under the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973).5
McDonnell Douglas requires, first, that the claimant
state a prima facie case. This showing transfers the burden of
production, requiring the employer to articulate (but not
necessarily prove) some legitimate, nondiscriminatory reason
justifying the adverse employment action. Cumpiano, 902 F.2d at
153. Satisfying this burden of production effectively dissolves
the inference of discrimination arising from the plaintiff's
prima facie case.6 See White v. Vathally, 732 F.2d 1037, 1040
(1st
5In general, the McDonnell Douglas model operates in the
same way for Title VII cases as for cases brought under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-634 (1988). See Villanueva v. Wellesley College, 930 F.2d
124, 127 n.2 (1st Cir.) cert. denied, 112 S. Ct. 181 (1991); Loeb
v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir. 1979). Hence, we
cite interchangeably to Title VII and ADEA decisions in the succedent analysis.
6Even though the McDonnell Douglas inference vanishes, the
evidence submitted in support of the prima facie case remains under consideration. See Mesnick, 950 F.2d at 825 n.6
(explaining that, although the burden-shifting framework becomes inconsequential at this point, the district court, faced with a Rule 56 motion, "must still examine the evidence that the parties adduced in proceeding under the framework").
Cir.), cert. denied, 469 U.S. 933 (1984). Once the parties reach
this stage, therefore, the plaintiff, if he is to defeat a
properly documented motion for summary judgment, "must offer some
minimally sufficient evidence, direct or indirect, both of
pretext and of the employer's discriminatory animus." Mesnick,
950 F.2d at 825; accord Villanueva v. Wellesley College, 930 F.2d
124, 127-28 (1st Cir.), cert. denied, 112 S. Ct. 181 (1991);
Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.
1988).
In this case, the district court apparently assumed
that appellant stated a prima facie case7 and that the employer
articulated a facially valid, nondiscriminatory reason (chronic
absenteeism and tardiness) for the dismissal. From that starting
point, the court ruled against appellant on two bases. First,
the court determined that appellant failed to submit evidence of
pretext. Second, the court found that "there is no evidence in
the record . . . that would justify even a circumstantial
inference that plaintiff was dismissed because of his Italian
heritage." Either conclusion would have warranted brevis
disposition. Having scrutinized the record, we are persuaded
that both are supportable.
7In employment termination cases, a prima facie case may be established by demonstrating that "(1) the plaintiff was within a protected class; (2) she was qualified for, and adequately performed, her job; (3) she was nevertheless dismissed; and (4) after her departure, the employer sought someone of roughly equivalent qualifications to perform substantially the same work." Cumpiano, 902 F.2d at 153. Following the district
court's lead, we also assume arguendo that appellant stated a
prima facie case.
1. Pretext. Appellant's effort to establish pretext 1. Pretext.
takes an unexpected twist. The Postal Service's stated reason
for cashiering Pagano focused on his rotten attendance record and
unremitting lack of punctuality. Usually, a Title VII plaintiff
seeks to show pretext by attacking the factual premise on which
the employer's professed reason rests. Here, however, appellant
concedes the truth of the Service's factual predicate he was,
by his own admission, often absent and frequently late but says
that the proffered reason was nonetheless pretextual because the
employer's attendance policy was not applied to other, similarly
situated, non-Italian employees in the same way.
This uncommon claim hinges on appellant's attempt to
compare his work record and treatment with the work record and
treatment of one Patrick Rafferty, a co-employee of Irish
descent. In appellant's view, Rafferty committed equivalent sins
but received much milder punishment. The court below jettisoned
this claim, finding that Rafferty's case was not a fair congener.
We agree.
In contending that he and Rafferty were "similarly
situated," appellant limits his analysis to the number of times
the two men were late during a finite period. Yet, appellant had
a substantially longer and more varied history of attendance
problems than did Rafferty and appellant, unlike Rafferty, failed
to mend his ways following receipt of formal warnings. Appellant
also racked up many more violations of the Postal Service's
attendance policy than did Rafferty when items such as sick time,
absences without leave, and the like are taken into account.8
In short, the record shows beyond hope of contradiction
that the two men were not similarly situated vis-a-vis overall
attendance and that Rafferty, like Pagano, was disciplined for
provable infractions at a level corresponding to the infractions'
severity. In the absence of any other evidence that the Postal
Service applied the attendance rules unevenly, the district court
did not err in holding that there was no genuine issue of
material fact on the question of pretext.9 See Oliver v.
Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir. 1988).
2. Discriminatory Animus. Appellant likewise failed 2. Discriminatory Animus.
to adduce any evidence tending to prove defendant's supposed
discriminatory intent. Appellant produced no evidence that
Hentschel, the official responsible for monitoring the attendance
policy and initiating disciplinary proceedings, harbored an
anti-Italian animus. Rather, he attempted to establish animus by
showing that Walsh, the Lynnfield postmaster, nursed a grudge
8For example, in the seventeen months prior to appellant's dismissal, he was involved in fifty-three separate occurrences that called the attendance rules into question. Rafferty was involved in only fourteen such instances during the same period.
9Relatedly, appellant asserts that there is a fact dispute about whether the Postal Service consistently recorded every instance of employee lateness or absence. Even if such a question exists, however, it is not material to this case. Appellant adduced no proof that the Service either failed to record transgressions based upon employees' national origin or placed ersatz infractions on his work record. Indeed, his evidence suggests that the Service may have been somewhat charitable in not recording all violations of the attendance rules. If this is so, appellant, as a habitual latecomer, likely benefitted from the employer's laxity.
against persons of Italian descent. The sum total of appellant's
evidence consists of three statements attributed to Walsh. When
reacting to news that he had become appellant's immediate
superior, Walsh allegedly remarked, "Good, now we can fire you."
On another occasion, Walsh allegedly told a co-worker that he
hoped appellant would quit. Finally, upon hearing an employee of
Italian lineagecough, Walsh reputedly said, "I hope he chokes."
This evidence is manifestly insufficient to create a
trialworthy issue regarding the existence of a statutorily
proscribed animus. To be sure, the attributed remarks are
concededly coarse but there is nothing about them which
suggests to an objectively reasonable observer that they
constituted expressions of discrimination based on national
origin. Sporadic instances of rude behavior, without more, do
not comprise competent proof of nationality-based discrimination.
See, e.g., Mesnick, 950 F.2d at 826; Medina-Munoz, 896 F.2d at 9-
10; Robinson v. Montgomery Ward & Co., 823 F.2d 793, 797 (4th
Cir. 1987), cert. denied, 484 U.S. 1042 (1988); Clark v.
Atchison, Topeka & Santa Fe Ry. Co., 731 F.2d 698, 702 (10th Cir.
1984). We hold, therefore, that this smattering of offhand
comments, spread over a fourteen-year period, fails as a matter
of law to show anti-Italian animus.10
10In view of this ruling, we need not reach, and, thus, take no view anent, the district court's alternative holding that Walsh's comments, even if probative of ethnic hostility, were inconsequential absent evidence that he had some input into, or impact upon, Hentschel's decision to end appellant's employment.
IV. CONCLUSION IV. CONCLUSION
We need go no further. We are without jurisdiction to
consider appellant's belated challenge to the magistrate's denial
of his motion to file an amended complaint. And, given the lack
of a triable issue of fact regarding either pretext or animus, we
conclude, without serious question, that the lower court
appropriately entered judgment in defendant's favor. See Oliver,
846 F.2d at 109 (holding that summary judgment is proper in a
Title VII case where plaintiff's opposition, at bottom, rests
solely upon "unsupported allegations and speculation").
Affirmed.
See, e.g., Medina-Munoz, 896 F.2d at 10 ("The biases of one who
neither makes nor influences the challenged personnel decision are not probative in an employment discrimination case.").