USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2084
HUGH G. PILGRIM,
Plaintiff, Appellant,
v.
THE TRUSTEES OF TUFTS COLLEGE,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
____________________
Before
Selya, Circuit Judge,
Aldrich and Cyr, Senior Circuit Judges.
____________________
William F. Green with whom Robert A. Rossi was on brief for
appellant.
David C. Henderson with whom Victoria L. Botvin and Nutter,
McClennen & Fish were on brief for appellees.
____________________
July 10, 1997
____________________
ALDRICH, Senior Circuit Judge. Plaintiff Hugh G.
Pilgrim ("Pilgrim") commenced this journey, pro se, with a 24
page complaint of employment discrimination containing 19
counts, his opponents being the Trustees of Tufts College
("Tufts")
and
several
named individuals. After a number of not
now
relevant
steps he ended, with counsel, with 6 counts, some
old, some new, and with Tufts as the sole adversary. At one
time or another he faced the following procedures -- a motion
to
dismiss;
multiple motions to strike; and defendant's motion
for summary judgment. On his own part Pilgrim moved for
summary judgment. In due course the court denied this, and
granted all of Tufts' motions. We affirm.
I. Background
We take the facts favorably to plaintiff, or, if
against
him,
if
not
rebutted. Pilgrim was an African-American,
a native of Barbados. He had many qualifications, for which,
in November 1987, he became employed as an environmental
research analyst in Tufts Center for Environmental Management
("CEM"). In January of 1989 his promotion to Program
Development Analyst brought him under the supervision of Kurt
Fischer ("Fischer"), a white male. In April of 1990 Fischer
gave Pilgrim an "inconsistent" performance rating. Despite
Pilgrim's
request for the full account, Fischer did not supply
it
until
July 30. The writing was even more negative than the
oral review. Fischer required Pilgrim to sign for its receipt
-2-
without
any
opportunity
either to read or discuss. Under Tufts
policy
Pilgrim should have been allowed to discuss a negative
review
with
the
next
level of management, in this case, William
Moomaw ("Moomaw") a director of CEM and Fischer's supervisor.
Moomaw, however, refused to meet with Pilgrim.
Beginning in June of 1990, Fischer began imposing
disciplinary restrictions on Pilgrim. These included a
requirement
that,
for
a
three week period, he submit daily logs
recording all of his activities (including telephone calls in
and
out,
and
all meetings held), and that he submit in advance
abstracts
of
papers intended for publication or acceptance for
presentation at conferences. He was also denied funding to
attend professional conferences. Fischer imposed further
disciplinary restrictions in September 1990, including
reimplementation
of
the
daily log requirement and an order that
Pilgrim cease participating in an ad hoc committee on race,
justice and the environment.
According to Pilgrim's affidavit, during the period
Fischer supervised Pilgrim, he called him "space pilgrim,"
"lazy" and accused him of "shifting positions all the time."
Pilgrim took these comments as racial slurs.
On
September
24, 1990, Pilgrim initiated an internal
grievance procedure alleging discrimination by Fischer.
Pilgrim's claims were initially evaluated by Moomaw who
subsequently informed Pilgrim by letter that there was no
-3-
evidence
of
discrimination by Fischer. Pilgrim proceeded with
the grievance. A grievance committee (sometimes the
"Committee") composed of three Tufts faculty members, was
convened. We note, in passing, that in March of 1991, Dean
Anthony Cortese ("Cortese") refused to provide Pilgrim with a
reference to accompany his application for admission to a
workshop. According to Pilgrim, Cortese told him that the
refusal was based on the fact that Pilgrim had filed this
grievance.
In January of 1991, the Tufts Budget Department
directed CEM to cut its payroll expenses by ten percent.
Moomaw and two other directors decided to eliminate ten staff
positions and to reconfigure others. As a result of these
moves, Pilgrim's job was deemed superfluous. A few of the
designated
employees
left voluntarily while the rest, including
Pilgrim,
were scheduled for termination. On the advice of the
Human
Resources
Department, however, Pilgrim was spared because
of his pending grievance. The other employees (including an
African-American woman who was rehired three months later),
were terminated on June 10, 1991.
On March 27, 1991, the Committee had forwarded the
results of its investigation of Pilgrim's grievance to Jean
Mayer ("Mayer"), then President of Tufts. When Pilgrim
attempted to obtain a copy of the Committee's report, he was
told
that
Mayer had determined that it was "classified." As a
-4-
result
of
the
Committee's recommendations, however, Fischer was
relieved
of
all supervisory duties and Pilgrim began reporting
to Moomaw.
In July of 1991, six weeks after the new reporting
relationship began, Moomaw gave Pilgrim an "inconsistent"
performance
rating,
repeating criticisms made by Fischer a year
earlier.
Also that summer, Pilgrim applied for a promotion to
Executive
Director
of
the Sustainability Consortium, a position
which was eventually given to a white female.
On October 2, 1991, Pilgrim filed a complaint with
the Massachusetts Commission Against Discrimination ("MCAD")
claiming various acts of alleged racial and national origin
discrimination on the part of Tufts. On October 31, he was
notified that he would be terminated on December 31, and he
amended his MCAD complaint to reflect the fact that he was
being
"laid-off."
He
filed an amended complaint in this action
on June 2, 1994, charging, inter alia, racial and national
origin-based harassment, failure to promote, wrongful
discharge,
and
retaliatory discharge1 in violation of Title VII
1. Not to by-pass anything, we recognize in a footnote,
Pilgrim's retaliatory discharge claim, on the very difficult
to make assumption that it was inferentially pleaded in his
complaint to the MCAD. Even assuming that amending his MCAD
complaint as to his "laid off" status was enough to encompass
a claim of retaliatory discharge in this action, see
Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996)
(construing liberally pro se plaintiff's administrative
complaint), it is precluded by the undisputed fact that Tufts
was not notified of the MCAD complaint until more than two
months after Pilgrim was notified of his termination, see
-5-
of
the
Civil
Rights
Act
of 1964, 42 U.S.C. S 2000e et seq., and
pendent state discrimination claims brought under Mass. Gen.
Laws ch. 151B, and the Massachusetts Civil Rights Act.
II. Discussion
Prior to any analysis of Pilgrim's substantive
claims,
we
first
dispose
of several procedural grounds alleged.
Pilgrim maintains that the court erred in striking certain
exhibits and portions of his affidavits, wrongly disregarded
his showing of a continuing violation which would have pushed
back
the
barriers
of
the
statutes of limitation, and abused its
discretion in refusing to admit the Committee's report,
virtually the only piece of evidence presented in his
opposition to summary judgment. We review seriatim.
A. Motions to Strike
Pilgrim appeals the allowance of Tufts' motion to
strike 18 of 19 documents submitted in support of his motion
for
summary
judgment2 and the partial striking of "incompetent
hearsay" in the 19th document: his affidavit. One of the
Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st
Cir. 1996) (requiring a plaintiff to show knowledge of
protected conduct by employer).
2. Although Pilgrim is not appealing the denial of his
motion for summary judgment, he apparently subsequently
resubmitted some or all of these previously stricken
documents in conjunction with his opposition to Tufts' motion
for summary judgment and now argues that they should have
been considered as part of the court's analysis of that
motion.
-6-
stricken documents was the report of the grievance committee,
which we address separately, post.
Without further explanation for the disallowance of
these documents, we will assume that the court's basis for
striking was the one stated in Tufts' motion, that the court
had used to grant an earlier motion to strike: Pilgrim's
failure to certify the documents in accordance with Fed. R.
Civ. P. 56(e), or his failure to state an inability to do so.
See
Fed.
R.
Civ. P. 56(f). Pilgrim makes no excuses, arguing,
instead, that Tufts' motion to strike was untimely, coming
after the 20 days allowed by Fed. R. Civ. P. 12(f). As Tufts
points out, however, Rule 12(f) applies only to pleadings and
has no applicability to motions made in pursuit of or in
opposition to summary judgment.
In
regard
to
Pilgrim's
affidavit, we are unsure which
of
the
statements the court struck. However, we will consider
statements Pilgrim alleges were made directly to him by
Fischer, Cortese, Rebecca Flewellyn, Mayer's assistant, and
Kathe Cronin, the Human Resource Director, as admissions by a
party opponent under Fed. R. Evid. 801(d)(2). The alleged
statement by Professor Gerard Gill, one of the members of the
Committee,
to
Pilgrim
that "race was a factor in Kurt Fischer's
treatment
of
[him]"
was
inadmissible hearsay against Tufts. We
concur with the court that all other alleged statements were
hearsay and therefore excludable.
-7-
-8-
B. Continuing Violations
As part of its motion to dismiss, Tufts sought to
limit Pilgrim's Title VII and Chapter 151B claims to conduct
occurring
outside
the
parameters set by the respective statutes
of limitation. The court held that any conduct alleged to
violate
Title VII that occurred before February 4, 1991 -- 240
days
prior
to
the
MCAD
complaint -- and any conduct relevant to
his claim under Chapter 151B occurring before June 2, 1991 --
180
days
prior to the MCAD complaint, could not be considered.
See 42 U.S.C. S 2000e-5(e); 29 C.F.R. SS 1601.70(a),
1601.74(a); Mass. Gen. Laws ch. 151B S 9. To avoid the
strictures of the limitations periods, Pilgrim contends that
the periods should be extended due to a continuing violation.
In the Title VII arena:
[I]f a violation is of a continuing
nature,
the
charge of discrimination filed
with the appropriate agency may be timely
as to all discriminatory acts encompassed
by the violation so long as the charge is
filed during the life of the violation or
within the statutory period . . . which
commences upon the violation's
termination.
Kassaye v. Bryant College, 999 F.2d 603, 606 (1st Cir. 1993).
The same holds true of Chapter 151B. See Lynn Teachers Union
v. Massachusetts Comm'n Against Discrim., 406 Mass. 515, 520
(1990).
A continuing violation may be either serial or
systemic.
La
wton v. State Mut. Life Assur. Co., 101 F.3d 218,
-9-
221
(1st
Cir. 1996). 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."
Id.
at
222
(citing
Jensen
v. Frank, 912 F.2d 517, 522 (1st Cir.
1990)). Pilgrim argues only for a serial violation. This is
one "compris[ing] a number of discriminatory acts emanating
from
the
same discriminatory animus, each of which constitutes
a separate wrong actionable under Title VII." Id. at 221-22.
The series must contain a specific beachhead violation
occurring within the limitations period. Muniz-Cabrero v.
Ruiz, 23 F.3d 607, 610 (1st Cir. 1994). Mere subsequent
effects of earlier discriminatory action will not extend the
limitations
period. Kassaye, 999 F.2d at 606. As a threshold
requirement,
Pilgrim must identify at least one discriminatory
act or practice occurring after February 4, 1991.
Pilgrim maintains that Cortese's refusal of the
letter
of
reference on March 1, 1991 and Moomaw's negative May
1991 review establish that beachhead. We disagree. Pilgrim
has not shown either of these actions to constitute an
actionable violation of Title VII or Chapter 151B. Pilgrim's
affidavit testimony that Cortese told him he was denying the
letter
of
reference because Pilgrim had filed a discrimination
grievance is not of itself evidence of, nor an admission of
racial
or
national
origin bias. Nor has Pilgrim identified any
-10-
evidence
that would lend an inference of illegal motivation to
Moomaw's review. Thus, there is no continuing violation that
would serve to extend the limitations period.
C. Denial of Extension of Discovery Deadline
On
April
24,
1995,
the
court set December 29, 1995 as
the deadline for discovery. On December 11 Pilgrim noticed
five Tufts employees, including Fischer and Moomaw, for
depositions to be taken in mid-January 1996. On January 4,
1996,
Tufts
objected
to
the proposed depositions as being after
the discovery deadline. On January 9, Pilgrim moved for an
extension
of
the deadline that the court then denied. We will
overturn
a
court's denial of a motion to extend discovery only
for abuse of discretion. Coyante v. Puerto Rico Ports Auth.,
105
F.3d
17,
22 (1st Cir. 1997). There is no such abuse here.
Pilgrim acknowledges that his failure to ask for an extension
prior to the deadline's expiration was an error in judgment.
In the next breath, however, he accuses Tufts of delaying
delivery of documents, without which he could not properly
depose its employees.
We cannot agree. First, Tufts did not, as Pilgrim
implies,
delay in the delivery of these documents. The record
reflects that an overly broad discovery order by Pilgrim
resulted in a motion to quash and finally in a protection
order. Second, Pilgrim's own brief tells us that these
documents
were
delivered
on December 21, 1995, 10 days after he
-11-
noticed
the
depositions.
We fail to understand how Pilgrim can
claim that he scheduled the depositions after receiving the
documents and then admit that the documents came later. If
there was any error here, it was Pilgrim's own.
D. The Grievance Report3
Central to almost every substantive ground in
Pilgrim's appeal is a report (the "Report") issued by the
Committee
on
March 27, 1991. When Pilgrim attempted to submit
it as part of his summary judgment motion, the court found it
inadmissible as "a collection of multi-level hearsay
statements."
We understand Pilgrim's distress at this ruling,
the Report being his only hope of withstanding Tufts' motion
for summary judgment. On appeal, as he did below, Pilgrim
contends that the Report was not hearsay, but instead
qualifies, inter alia, as an admission of a party opponent
under Fed. R. Evid. 801(d)(2)(B), as an adoptive admission.
Rule
801(d)(2)(B)
provides that "[a] statement is not
hearsay
if
.
.
.
[the]
statement is offered against a party and
is . . . a statement of which the party has manifested an
adoption
or
belief
in
its truth . . . ." The burden of showing
the manifestation is on the party offering the evidence. Cf.
Riccardi
v.
Children's
Ho
sp. Medical Ctr., 811 F.2d 18, 24 (1st
3. As we noted, ante, the Report was one of the documents
earlier stricken for lack of certification. However, since
the court ruled on its admissibility in its memoranda denying
Pilgrim's motion for summary judgment, we assume this
deficiency was repaired.
-12-
Cir. 1987). We have identified the correct approach where
documents are concerned as asking whether "the surrounding
circumstances tie the possessor and the document together in
some
meaningful
way."
Un
ited States v. Paulino, 13 F.3d 20, 24
(1st Cir. 1994). We believe that Pilgrim has carried his
burden,
at
least
to
an
extent. The question is to what extent?
The
answer
is: to the extent that the adoptive party accepted
and acted upon the evidence.
"Adoption or acquiescence may be manifested in any
appropriate manner." Fed. Rules of Evid., Advisory Committee
Notes. The Committee was convened under Tufts' established
grievance procedures, and its recommendations given to Mayer.
The major ones were that Fischer be relieved from all
supervisory
responsibilities, that Pilgrim, instead, report to
Moomaw, and that an independent overseer outside of CEM be
appointed to monitor the new reporting relationship.
Tufts does not dispute that Mayer implemented all
three of these recommendations. In particular, removing
Fischer
from
all
supervisory duties was a serious enough action
that
we
cannot
but
think
that Mayer would not have carried this
out unless he accepted the Report's conclusions as the truth.
As such, his acceptance of the contents of the Report and his
implementation of its recommendations, without disclaimer,
served as an adoption of the Report for the purposes of Rule
801(D)(2)(B). We note, however, that while the Report was
-13-
generated during the limitations period, most of its contents
detail conduct that occurred prior to that period, and hence
barred
from
consideration. We will, nevertheless, discuss it.
In
essence,
the Committee concluded that Fischer had
failed
to
give Pilgrim a fair and impartial review and that he
had
exaggerated
complaints about Pilgrim's performance in order
to justify an "apparent desire . . . to terminate [him]." It
also stated a finding that "Pilgrim appears to have been
singled
out
for
certain
types of disciplinary actions." On the
question of racial and national origin discrimination it
stated:
[N]o
substantive evidence that Mr. Fischer
intended to discriminate against Mr.
Pilgrim on the basis of race, color, [or]
national
origin . . . although Mr. Fischer
could have been motivated by prejudices
against Mr. Pilgrim. It is plausible to
the Committee that Mr. Fischer's actions
were motivated by other factors, such as
personality conflicts. However, the
Committee could not fully evaluate this
component
of
the grievance, as performance
reviews of other CEM personnel supervised
by Fischer could not be obtained.
Therefore,
the Committee could not compare
Mr. Fischer's decisions with respect to
performance ratings and salary increases.
Nonetheless, the Committee finds that
several
of
Mr. Fischer's actions . . . did
result
in
the perception of discrimination
by Mr. Pilgrim. Such restrictions could
have had discriminatory impacts to the
extent that Mr. Pilgrim was in several
instances treated differently from other
professional staff at CEM.
Having
determined that this finding, along with party opponent
admissions from Pilgrim's affidavit, compose all of Pilgrim's
-14-
evidence,
we
turn
next
to the court's grant of summary judgment
to Tufts.
E. Summary Judgment
We review grants of summary judgment de novo,
indulging,
as
must
the
court below, in all inferences favorable
to
the
non-moving
party.
Lehman v. Prudential Ins. Co. of Am.,
74 F.3d 323, 327 (1st Cir. 1996). Summary judgment is
appropriate only when the record, viewed in this favorable
light, produces no genuine issue of material fact, thereby
entitling the moving party to a judgment as a matter of law.
Fed. R. Civ. P. 56(c). This standard is applicable even in
employment
discrimination
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." Lehman, 74 F.3d at
327 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990)). The bare fact is that Pilgrim
failed
to
present evidence of the quality and type adequate to
stave off summary judgment within the context of the familiar
McDonnell-Douglas framework for discrimination claims. See
McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);
Lattimore
v.
Polaroid Corp., 99 F.3d 456, 465 (1st Cir. 1996).
Pilgrim's
perception is not evidence. The Report's deficiency
we
have
already referred to. As we noted, ante, the Report is
the
cornerstone upon which Pilgrim attempts to build his case.
-15-
But a close reading of the Committee's conclusions fails to
provide the required inference of bias behind Tufts' actions.
Read
closely
in
the
light most favorable to Pilgrim, the Report
concludes that the restrictions placed on him resulted in
Pilgrim being treated "differently from other professional
staff." In the same breath, the Committee reported that they
were unable to find any "substantive evidence that Fischer
intended
to
discriminate against Pilgrim on the basis of race,
color [or] national origin . . . and that [i]t is plausible
that Mr. Fischer's actions were motivated by other factors,
such as personality conflicts."
The
only
inference
that
can be drawn here is that for
whatever
reason
Pilgrim
received "different" treatment, it was
as likely due to a clash of personalities as anything else.
And although the Committee found that Fischer's behavior left
Pilgrim
with
the perception he had been discriminated against,
Pilgrim's perception is not enough to withstand summary
judgment. The relevant inquiry here is the intent of the
defendant which the Committee was unable to define.
Nor do any of statements in Pilgrim's affidavit
alleged to have been made by the defendant's employees lend
assistance to this uphill battle. These statements, for the
most
part,
serve
to
show
that Pilgrim was told by certain Tufts
employees, first, that he would receive a copy of the Report,
and
later
by
those
same
employees, that he would not be able to
-16-
obtain a copy because it was "classified." The inference
Pilgrim would like us to draw from this -- that he was
initially denied access to the Report because Tufts feared it
would be damaging -- is belied by the actual contents.
Cortese's alleged comment that he would not provide
a reference for a workshop Pilgrim wanted to attend because
Pilgrim "filed a discrimination grievance against CEM with
Tufts," as we observed, ante, does not disclose the actuating
motive. As is the case with virtually all of Pilgrim's
evidence, it can be construed as supporting the fact that
Pilgrim
was
treated
differently, however, it does not show that
this treatment resulted from any racial or national origin
bias.
To avoid summary judgment Pilgrim must, at the very
least, present a single piece of evidence that would allow a
reasonable juror to infer this bias. He has not done so;
accordingly,
his claims must fail. The orders of the district
court are
Affirmed.
-17-