Randall v. Scott Paper Co. ( 1995 )


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    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    [Not for Publication] [Not for Publication]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.

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    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).

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    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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    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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