Randall v. Scott Paper Co.

• Court: Court of Appeals for the First Circuit
• Decided: January 24, 1995
• Docket: 94-1677
• Status: Published

Opinion

USCA1 Opinion

January 24, 1995
                                [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 94-1677

                                 ROBERTA J. RANDALL,

                                Plaintiff, Appellant,

                                          v.

                     SCOTT PAPER COMPANY AND S.D. WARREN COMPANY,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Robert S.  Hark with  whom Isaacson &  Raymond, P.A. was  on brief
            _______________            _________________________
        for appellant.
            B. Simeon  Goldstein with  whom Pierce,  Atwood, Scribner,  Allen,
            ____________________            __________________________________
        Smith & Lancaster was on brief for appellees.
        _________________

____________________

____________________



Per Curiam.  Plaintiff Roberta Randall asserts that
                      Per Curiam.
                      ___ ______

            the   district  court   erroneously  ruled   that  statements

            contained in two affidavits were inadmissible hearsay and, as

            a  consequence  of that  ruling,  improperly granted  summary

            judgment for  defendants Scott  Paper Co. and  its subsidiary

            S.D. Warren  Co.1 on Randall's retaliation  claim under Title

            VII of  the  Civil Rights  Act  of 1964,  42  U.S.C.    2000-

            e(3)(a).   Because we conclude that even if the statements in

            question  were admissible  there  would still  be no  genuine

            issue of material fact, we affirm.

                      From   1980   to  1991,   Randall   worked  as   an

            environmental technician at Scott's mill in Westbrook, Maine.

            After she was laid off, either due to a mill-wide downsizing,

            as Scott claimed, or due to gender discrimination, as Randall

            claimed,  Randall  filed a  complaint  with  the Maine  Human

            Rights  Commission  (MHRC)  and  with  the  Equal  Employment

            Opportunity Commission (EEOC) in September 1991.   Meanwhile,

            Randall obtained  other employment,  working  first for  Betz

            Industrial from  February 1991 until December  1991, when she

            was  fired for  performance reasons,  and then  for Northeast

____________________

            1.  Because it  is  not always  clear from  the record  which
            facilities or  actions relevant to this  litigation are owned
            by  or  attributable  to  which defendant,  and  because  the
            parties treat  any such distinctions as  unimportant, we will
            henceforth  refer  to either  or  both  defendants simply  as
            "Scott," even if actual ownership of a particular facility or
            responsibility for a particular  action in reality rests with
            S.D. Warren or with both defendants.

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Test  Consultants  (NTC)  beginning  in August  1992.    Both

            companies provide environmental testing services to  Scott as

            well as to other companies.  Randall's work for Betz included

            considerable time  spent at Scott's mill  in Hinckley, Maine.

            Although 15% of  NTC's business derived from  Scott, NTC sent

            Randall  to perform work at  Scott facilities on  only one or

            two occasions.  After both the MHRC and the EEOC declined  to

            take action against Scott, Randall filed a sex discrimination

            lawsuit  against  Scott and  S.D. Warren  in  June 1993.   In

            January 1994, one  day after  she was  deposed in  connection

            with  her lawsuit, NTC laid  Randall off and  has not rehired

            her.

                      Randall's  allegation  relevant to  this  appeal is

            that  Scott  retaliated  against  her for  pursuing  her  sex

            discrimination  claim,  thus  violating  42  U.S.C.     2000-

            e(3)(a),2  by  ordering NTC  to  keep  her  away  from  Scott

                                
            ____________________

            2.  Section 2000-e(3)(a) provides in pertinent part:

                                It  shall  be an  unlawful
                           employment   practice  for   an
                           employer     to    discriminate
                           against any of his employees or
                           applicants for employment . . .
                           because  he   has  opposed  any
                           practice   made   an   unlawful
                           employment  practice   by  this
                           subchapter,  or because  he has
                           made   a   charge,   testified,
                           assisted,  or  participated  in
                           any manner in an investigation,
                           proceeding,  or  hearing  under
                           this subchapter.

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facilities and, ultimately, to  dismiss her.3  The defendants

            moved for summary judgment, asserting, inter alia, that there
                                                   _____ ____

            is  no genuine  issue of  material fact  because there  is no

            evidence linking Scott to  NTC's decision to dismiss Randall.

            In  response to  the defendants'  motion, Randall  points to:

            (1)  the   temporal  proximity  of  her   dismissal  and  her

            deposition  testimony;  (2)  the  importance of  Scott  as  a

            customer to  NTC, accounting  for approximately 15%  of NTC's

            business;  (3) the fact that she was sent to Scott facilities

            only  once or twice during  her sixteen months  at NTC; (4) a

            contract between  NTC and Scott (the  "Service Agreement") in

            which Scott  retains the  right to  reject any  NTC employees

            sent to  perform work at Scott facilities;  (5) her favorable

            performance evaluation  at NTC  relative to  another laid-off

            employee  who  was subsequently  rehired; and  (6) statements

            allegedly   made  by  Randall's   supervisor  at  NTC,  James

            Guzelian, which Randall claims strongly support the inference

            that Scott was behind her dismissal.

                      We  review a  grant  of summary  judgment de  novo,
                                                                __  ____

            drawing all reasonable inferences  in favor of the nonmovant.

____________________

            3.  Thus, Randall essentially claims that Scott "blacklisted"
            her  with NTC's  cooperation.   Scott does  not argue  that a
            blacklisting  claim  against   a  former   employer  is   not
            actionable  under  42  U.S.C.      2000e-3(a).    See,  e.g.,
                                                              ___   ____
            Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1163-
            __________    _________________________
            65 (10th Cir. 1977)  (holding that former employer's negative
            reference because of Title VII lawsuit constituted actionable
            retaliation under   2000e-3(a)).

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LeBlanc v.  Great Am. Ins.  Co., 6  F.3d 836,  841 (1st  Cir.
            _______     ___________________

            1993), cert.  denied,  114  S.  Ct.  1398  (1994).    Summary
                   _____  ______

            judgment   is  appropriate   only   when  the   moving  party

            demonstrates  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).  When

            the  nonmovant  bears  the  burden of  persuasion  at  trial,

            however, she can avoid summary  judgment against her only  if

            she makes  a showing sufficient to establish the existence of

            each  essential  element  to  her  case.   Celotex  Corp.  v.
                                                       ______________

            Catrett, 477 U.S. 317, 322-23 (1986).  Thus, to get to trial,
            _______

            the  burden-bearing nonmovant  must  adduce enough  competent

            evidence to  enable a reasonable jury to find for her on each

            element essential to her claim.  See LeBlanc, 6 F.3d at 842.
                                             ___ _______

                      The  alleged Guzelian  statements are  contained in

            two  affidavits:  Randall's and that of Ann Peoples, a former

            Scott  employee.  Randall states in her affidavit:  (1) About

            a  month after she started working for NTC, Guzelian told her

            that he had  heard about  her complaint  against Scott,  that

            "someone" in  Scott's purchasing department had  mentioned it

            to him but had told him that it should not be a problem.  (2)

            When Randall asked Guzelian when she  was going to be sent to

            do  work at S.D. Warren  facilities, "[h]e told  me that Rick

            LaCouture  (another NTC  employee)  had heard  that I  wasn't

            welcome at  S.D. Warren, so he was  going to . .  . see if he

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could find  out anything about  what Rick had said."   (3) On

            another  occasion, Guzelian  told Randall  that "he  had been

            told"  by  a  safety  supervisor at  a  Scott  facility  that

            "someone  had  noticed"  Randall's  name  and  that  "someone

            thought that it  was o.k." for her  to work at  certain Scott

            facilities  but  not  at  others  located  too  near  to  the

            Westbrook facility  where Randall had once  worked.  Guzelian

            also asked Randall during  this conversation if she "wouldn't

            . . . be better off just dropping" her lawsuit against Scott.

                      In her affidavit, Peoples claims that in the course

            of a conversation with  Guzelian concerning her own prospects

            for  employment at NTC, Guzelian told her that Randall "had a

            problem" with  Scott "because `we really can't  send her over

            there' or words to that effect."

                      The  district  court  ruled  all   of  the  alleged

            Guzelian  statements4  inadmissible  hearsay.    Randall  now

            appeals, arguing that NTC was an agent of Scott, at least for

            the   limited  purpose   of   retaliating  against   Randall.

            Guzelian's  statements  are  therefore   admissible,  Randall

            argues, under Fed. R. Evid. 801(d)(2)(D), which provides that

            "a statement  by the  party's agent  or servant  concerning a

                                
            ____________________

            4.  In his  deposition, Guzelian denies that  anyone at Scott
            or S.D.  Warren ever exerted pressure to prevent Randall from
            working  at its  facilities or  to force  NTC to  dismiss her
            entirely.    NTC  president  Steven  Broadhead  made  similar
            denials  in his deposition.  In fact, Broadhead stated in his
            deposition that Scott  had never invoked its right  under the
                                       _____
            Service Agreement to reject any NTC employees.

                                         -6-
                                          6



matter within the scope  of the agency or employment"  is not

            hearsay.  Proof of this principal-agent relationship, Randall

            asserts, is contained in a clause in the contract between NTC

            and  Scott that  grants Scott veto  power over  employees NTC

            wishes  to  send to  Scott  facilities,  and in  the  alleged

            Guzelian statements themselves.

                      We  need  not  resolve   the  question  of  whether

            Randall's agency  argument  propels the  Guzelian  statements

            over the  apparent hearsay and double-hearsay  hurdles.  Even

            if  the  Guzelian   statements  were  admissible,   Randall's

            proffered  assemblage of evidence would not get her to trial.

            A  rational factfinder  simply  could not  conclude from  the

            summary  judgment  record  that  Randall  had  satisfied  her

            ultimate burden of proving  that Scott retaliated against her

            because  of  her  lawsuit.5    Randall's  proffered  evidence

            implicates Scott only by virtue of an inferential giant step.

            While Randall  perhaps has mustered  some evidence suggesting

                                
            ____________________

            5.  We assume arguendo that Randall satisfied her prima facie
                          ________
            burden.  See Petitti v. New England Tel. & Tel. Co., 909 F.2d
                     ___ _______    ___________________________
            28,  33  (1st Cir.  1990).   Scott  has "adopted"  NTC's non-
            discriminatory   justifications   for  the   alleged  adverse
            employment  actions -- that is,  the need to  send Randall to
            non-Scott facilities  for training and the  unavailability of
            work resulting  in her ultimate  layoff.  Once  the defendant
            has  met  his  burden   of  production,  the  presumption  of
            retaliation  raised  by  the  plaintiff's  prima  facie  case
            dissolves, and  we simply look to the entire summary judgment
            record to assess  whether the plaintiff has  met her ultimate
            burden of proving that the defendant's  proffered reason is a
            pretext  for retaliation.  See Mesnick  v. General Elec. Co.,
                                       ___ _______     _________________
            950 F.2d 816, 823  (1st Cir. 1991), cert. denied,  112 S. Ct.
                                                _____ ______
            2965 (1992).

                                         -7-
                                          7



that NTC took action against her because she persisted in her

            lawsuit against Scott, an important NTC customer, she has not

            offered sufficient  evidence to enable  a rational factfinder

            to conclude that Scott  instructed NTC to keep her  away from

            its facilities or to lay her off because of her lawsuit.

                      Rather than  implicating Scott, the  first Guzelian

            statement  contained  in Randall's  deposition  actually cuts

            against  her argument, since  it suggests  that Scott  had no
            _______

            problem with her work for NTC.  The second and third Guzelian

            statements  in  Randall's   affidavit  might  indicate   that

            "someone"  at Scott thought  that Randall should  not work at

            certain Scott facilities for  unspecified reasons, but  there

            is  no   indication,  or  even  an   allegation,  that  these
                                                 __________

            statements came from anyone with the authority to bind Scott.

            See Smith v. Stratus Computer, Inc., 40 F.3d 11, 18 (1st Cir.
            ___ _____    ______________________

            1994)  (holding that plaintiff's  failure to  adduce evidence

            that maker of statement made or influenced personnel decision

            rendered  comment  irrelevant   to  issue  of  discriminatory

            animus).     The  inferential   leap  from  these   anonymous

            statements to  the conclusion that someone  with authority at

            Scott must have  ordered NTC  to keep her  away from  certain

            Scott  facilities  and ultimately  fire  her --  or  that the

            motivation   behind   these   "orders"   was   Randall's  sex

            discrimination lawsuit -- is far too great for any reasonable

            factfinder to undertake.  The Guzelian statement contained in

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                                          8



Peoples'  affidavit  provides  Randall's  complaint  with  no

            additional  sustenance; it, too, fails to link Scott to NTC's

            decision to  lay her off,  suggesting only that  Guzelian was
                                                             ________

            uncomfortable sending Randall to Scott facilities.

                      Nor do any of the other factors that Randall points

            to  --  e.g., Scott's  importance to  NTC  as a  customer and

            Scott's veto power under the Service Agreement -- bolster her

            case sufficiently to get her to trial.  None of these factors

            could possibly  support  a reasonable  inference  that  Scott

            retaliated against Randall and caused the adverse  employment

            actions she suffered  at NTC.   Thus, Randall  has failed  to

            adduce sufficient evidence  to meet her burden  at trial, and

            the defendants are therefore entitled to judgment as a matter

            of law.

                      Affirmed.  Costs to Appellees.
                      Affirmed.  Costs to Appellees.
                      ________   __________________

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