Fennell v. First Step Designs ( 1996 )


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  • USCA1 Opinion











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

    No. 95-2294

    RACHEL L. FENNELL,

    Plaintiff, Appellant,

    v.

    FIRST STEP DESIGNS, LTD, D/B/A HAND-IN-HAND,

    Defendant, Appellee.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

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

    ____________________

    Before

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

    ____________________

    Roy T. Pierce with whom Alfred C. Frawley and Brann & Isaacson ______________ __________________ _________________
    were on brief for appellant.
    Peter Bennett with whom Frederick B. Finberg and Bennett and ______________ _____________________ ____________
    Associates, P.A. were on brief for appellee. ________________


    ____________________

    May 15, 1996
    ____________________




















    STAHL, Circuit Judge. Rachel L. Fennell sued her STAHL, Circuit Judge. ______________

    former employer, First Step Designs, Ltd. ("First Step"),

    under Title VII and related state laws, claiming that she was

    terminated in retaliation for making allegations of sexual

    harassment. First Step moved for summary judgment,

    presenting evidence that the decision to lay off Fennell had

    been made prior to her complaint. The district court granted

    summary judgment for First Step, after denying Fennell's

    motion for further discovery under Fed. R. Civ. P. 56(f).

    Fennell had hoped that further discovery would uncover proof

    in First Step's computer files that a memo about planned

    layoffs, dated prior to her report of harassment, had been

    fabricated. Fennell appeals both rulings. We affirm.

    I. I. __

    Background Background __________

    A. Factual Background: Fennell's Retaliation Claim ___________________________________________________

    First Step, a designer, manufacturer, and

    distributor of play equipment for children, operates a

    warehouse and customer service center in Oxford, Maine.

    Fennell worked as a Warehouse Lead, a supervisory position in

    which she directed the warehouse staff in fulfilling orders.

    Although Fennell was a supervisor and shared office space

    with the Warehouse Manager, she spent most of her time on the

    warehouse floor working alongside the other warehouse

    workers. Her immediate supervisor was Wayne Smith, the



    -2- 2













    Warehouse Manager. Kathleen Tucker, General Manager of the

    warehouse, was Smith's supervisor.

    1. Fennell's Report of Harassment and Her ___________________________________________________

    Subsequent Layoff _________________

    Two First Step employees had complained to Fennell

    about on-the-job sexual remarks by Smith, and Fennell had

    heard from other employees about a sexually offensive remark

    Smith had made while performing as a country musician at a

    company-sponsored benefit dance. On November 19, 1993,

    Fennell met with Tucker and recounted what she had heard

    about Smith's inappropriate remarks. According to Fennell,

    Tucker was hostile. Smith's immediate predecessor had been

    fired in May of 1993 for sexual harassment, and Tucker was

    incredulous to hear that First Step might have another

    harasser as Warehouse Manager.

    On December 20, 1993, Fennell was laid off,1 and

    she believes her layoff was in retaliation for her complaints

    to Tucker. Fennell also alleges that, after her report to

    Tucker, she was given inferior work (regular packing duties

    rather than supervisory duties). First Step maintains that

    Fennell's layoff was planned before she complained to Tucker

    about Smith, and that her complaint was not a factor in its

    decision to lay her off.

    ____________________

    1. Fennell asserts that she was terminated, while First Step
    maintains she was only laid off. We address this dispute in
    Part II.B.3, our discussion of the grant of summary judgment.

    -3- 3













    2. The October 25 Memo _______________________

    A memorandum dated October 25, 1993, from Tucker to

    Eric Schultz, First Step's Boston-based Chief Operating

    Officer, indicated that Fennell was scheduled for a layoff

    the week before Christmas.2 The memo, titled "SUBJECT:

    ANTICIPATED LAYOFFS/STAFFING," listed twenty-eight persons

    and their continuing positions in the warehouse; it also

    listed Fennell and four others under the subtitle "SCHEDULED

    LAYOFFS WEEK OF CHRISTMAS." According to the affidavits of

    Tucker and Schultz, the memorandum was a response to pressure

    from Schultz to reduce operating costs at the warehouse.

    Tucker and Schultz both state in their affidavits that the

    memorandum was faxed to Schultz on October 25, and the

    document bears a hand stamp indicating that it was faxed that

    day. Brigitte Marston, a customer service supervisor also

    reporting to Tucker, states in her affidavit that she saw a

    "layoff list" with Fennell's name on it before Fennell's

    November 19 meeting with Tucker. (Marston also attended that

    meeting, at Fennell's request.) On November 5, 1993, Marston

    sent an internal electronic mail message ("E-mail") to

    another employee, in which she referred to the layoff list.

    Marston implied in the E-mail that she had seen the list and

    knew who was on it.

    ____________________

    2. Copies of the memorandum have been made part of the
    summary judgment record as exhibits to the affidavits of
    Tucker and Schultz.

    -4- 4













    Fennell contends that the memorandum was fabricated

    after the November 19 meeting. To support this contention, _____

    she points to five facts that, she argues, are suggestive of

    fabrication: (1) one of the employees that Tucker listed for

    an ongoing position in the October 25 memorandum had already

    left the company late that summer, before the memo was

    created; (2) Tucker stated that she had sent other memoranda

    regarding earlier layoffs to Schultz, but neither she nor

    Schultz kept copies of them (only the October 25 memo was

    retained); (3) Tucker commented to Fennell earlier in October

    1995 that she was doing a good job, that her services were

    needed, and that she would not be required to cross-train as

    a telemarketer; (4) First Step employees had inconsistently

    described the job action taken with respect to Fennell

    (sometimes as a layoff, other times as an elimination of her

    position) as well as the precise reasons for the action; and

    (5) certain other employees listed in the memorandum for

    layoff were ultimately not laid off. For ease of reference,

    we shall refer to these as "the five suspicious facts."

    B. Prior Proceedings _____________________

    On January 23, 1995, Fennell filed a three-count

    complaint in federal district court alleging that First Step

    fired her in retaliation for her report of sexual harassment,

    in violation of Title VII of the Civil Rights Act of 1964, 42

    U.S.C. 2000e-3(a), the Maine Human Rights Act, Me. Rev.



    -5- 5













    Stat. Ann. tit. 5, 4572(1)(E), and the Maine

    Whistleblower's Protection Act, Me. Rev. Stat. Ann. tit. 26,

    833(1)(A). On August 4, 1995, after the close of

    discovery, First Step moved for summary judgment on all three

    counts, arguing primarily that Fennell's layoff was planned

    before she lodged her sexual harassment complaint, and thus

    was not retaliatory. First Step asserted that there was no

    genuine issue as to the fact that the layoff decision

    predated Fennell's complaint, because the October 25 memo and

    the corroborating testimony of three First Step managers was

    essentially uncontroverted. On August 25, 1995, Fennell

    opposed the motion, arguing that there was a genuine issue of

    material fact as to whether the October 25 memo was actually

    written before she complained to Tucker or whether it was,

    instead, fabricated to exonerate First Step. In her

    opposition to summary judgment, Fennell requested additional

    time for discovery under Fed. R. Civ. P. 56(f) to determine,

    based on the computer word processing file, when the memo was

    written. On August 28, 1995, First Step responded by

    providing a diskette containing a copy of the word processing

    file of the October 25 memo. On September 9, 1995, First

    Step submitted a reply brief and an objection to Fennell's

    request for more discovery time, supported by an affidavit

    averring that there was no way to determine from its computer

    system when the document was first created.



    -6- 6













    The district court determined that, in light of the

    October 25 memo, Fennell had not shown evidence sufficient to

    allow a reasonable jury to find that her layoff was in

    retaliation for her complaints about sexual harassment, and

    it granted "conditional" summary judgment in favor of First

    Step. The condition was that Fennell would have, under Rule

    56(f), "seven (7) days in which to file any affidavit

    revealing competent testimony, based on the magnetic medium

    [i.e. the diskette containing the word processing file], that

    the memorandum was created or modified (as opposed to being

    simply called up) on or after November 19, 1993."3

    Pursuant to the district court's order allowing

    limited further discovery, Fennell submitted the affidavit of

    her computer expert stating that the computer word processing

    file containing the October 25 memo on a magnetic diskette

    revealed that the document was "autodated"4 on August 7,

    ____________________

    3. There is no dispute that the October 25, 1993, memo,
    listing Fennell among those to be laid off, existed in May
    1994, when it was submitted by First Step as part of the
    Maine Human Rights Commission fact finding process. Thus, if
    the document was fabricated as Fennell maintains, the
    fabrication occurred sometime after November 19, 1993, and
    before May 1994.

    4. Fennell's expert actually stated that the memo was
    "modified" on August 7, 1995. However, the expert did not
    suggest that there were any textual changes to the memo on _______
    that date. Rather, the expert referred to the automatic
    modification of the date assigned to the document file by the
    word processing program after certain commands have been
    entered. For example, the expert stated, "if a file is
    'called-up' to an application such as Wordperfect, and saved
    to a different location (whether changed or not), the date of

    -7- 7













    1995. Fennell's expert proposed that the original date of

    creation or date of any earlier modification could be

    determined by a review of the file as it resided on First

    Step's hard drive, rather than the diskette that had been

    provided by First Step. The district court held a

    hearing on Fennell's request for discovery of First Step's

    hard drive and then directed the parties to submit a

    "protocol" under which Fennell would have access to First

    Step's hard drive. If no joint protocol could be agreed

    upon, differences were to be resolved by conference.

    Subsequently, the parties submitted substantially different

    protocols.

    After reviewing the protocols, and without holding

    another conference, the district court decided that its

    earlier decision to consider further discovery had been ill-

    advised. Accordingly, the court denied any further Rule

    56(f) discovery, and granted First Step summary judgment.

    This appeal ensued.

    II. II. ___

    Discussion Discussion __________


    ____________________

    saving is shown as the modification date." In an attempt to
    achieve some clarity, we shall refer to such a change to the
    date of a computer file not as a "modification," but as
    "autodating." We consider "modification," as that term was
    used by the district court, to mean a change in the text of
    the document that would appear on a paper printout of the
    document, as opposed to changes to the date assigned to the
    computer file containing the document text.

    -8- 8













    Fennell appeals the district court's grant of

    summary judgment in favor of First Step, as well as its

    denial of her request for additional discovery of First

    Step's computer files in the hope that she might find

    evidence that the October 25 memo was fabricated after the

    fact. Because summary judgment would have been inappropriate

    if Fennell had presented evidence that the memo was a

    perjurious fabrication, we will address the discovery issue

    first.

    A. Denial of Rule 56(f) Discovery __________________________________

    We review a district court's ruling on a discovery

    request under Fed. R. Civ. P. 56(f) for abuse of discretion.

    Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir. _____ ____________________

    1991). Federal Rule of Civil Procedure 56(f) provides:

    Should it appear from the affidavits of a
    party opposing the [summary judgment]
    motion that the party cannot for reasons
    stated present by affidavit facts
    essential to justify the party's
    opposition, the court may refuse the
    application for judgment or may order a
    continuance to permit affidavits to be
    obtained or depositions to be taken or
    discovery to be had or may make such
    other order as is just.

    To receive the benefit of Rule 56(f), the "movant must (1)

    articulate a plausible basis for the belief that discoverable

    materials exist which would raise a trialworthy issue, and

    (2) 'demonstrate good cause for failure to have conducted the

    discovery earlier.'" Price, 931 F.2d at 164 (quoting _____



    -9- 9













    Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. ____________________ ____________________________________

    Co., 840 F.2d 985, 988 (1st Cir. 1988)). Although the ___

    district court did not use these precise words, it denied any

    further Rule 56(f) discovery essentially because Fennell did

    not articulate a plausible basis for the belief that

    discoverable materials existed which would have raised a

    trialworthy issue. For purposes of our analysis, we will

    assume, but need not decide, that Fennell met the "good

    cause" element.

    Fennell argues that the district court should have

    allowed Rule 56(f) discovery of First Step's hard drive

    because her expert established that the October 25 memo was

    "autodated" on August 7, 1995. Fennell argues that

    regardless of whether the autodating was intentional or

    inadvertent, it obscured the date of the document's last

    prior modification or, if there was no prior modification,

    the date of its creation, thus rendering those dates

    uncertain. Fennell maintains that First Step must "live with

    that uncertainty," by which she means that there is a genuine

    dispute as to the date on which the memo was written.

    Fennell emphasizes that First Step's summary judgment motion

    is based in large part on the memo, as proof that the

    business decision to lay off Fennell predated her report of

    sexual harassment. Fennell also points to the "five

    suspicious facts" noted earlier as support for her contention



    -10- 10













    that there is a plausible basis for her belief that further

    discovery will yield evidence that the memo was fabricated.

    We begin our analysis with a review of the discovery-related

    proceedings below.

    We note at the outset that First Step did not file

    its motion for summary judgment until after the close of

    discovery pursuant to the district court's pretrial order.

    Fennell's original discovery request did not make clear

    whether it called for a diskette copy of the memo or a paper

    "original." In any event, there is no indication and no

    allegation that First Step withheld the diskette from Fennell

    in bad faith.

    Despite the district court's determination that

    Fennell's opposition to summary judgment had not demonstrated

    any genuine dispute as to First Step's contention that its

    decision to lay off Fennell preceded her complaint, the court

    granted a seven-day extension to allow Fennell to file an

    affidavit providing some computer-based evidence that the

    memo was fabricated and antedated. By this time, a diskette

    containing the memo's computer file was already in Fennell's

    hands, thus the proposed extension did not involve any

    intrusion or impose costs upon First Step.

    In compliance with the discovery extension, Fennell

    submitted the affidavit of her computer expert, which stated

    that analysis of the diskette containing the word processing



    -11- 11













    file of the October 25 memo revealed that the document was

    "autodated" on August 7, 1995. The district court determined

    that the computer expert's affidavit did not reveal that the

    memorandum was "created or modified (as opposed to being

    simply called up) on or after November 19, 1993." In other

    words, the affidavit was not probative of any fabrication.

    Fennell's expert proposed that the original date of

    creation or date of last textual modification could be

    determined by review of the file as it resided on First

    Step's hard drive. On the other hand, a First Step employee

    had stated, in an affidavit previously filed in reply to

    Fennell's opposition to summary judgment, that First Step's

    computer consultant determined that its system could not

    reveal the date on which the document was first created or

    last textually modified.

    The district court held a conference after Fennell

    filed her computer expert's affidavit. After considering

    Fennell's proposal that access to First Step's hard drive

    might reveal the date of creation or modification of the

    October 25 memo, the district court directed the parties to

    submit a "protocol" establishing the procedures by which

    Fennell would have access to relevant materials on First

    Step's hard drive. The district court cautioned that

    discovery would be allowed only if the protocol ensured that

    hard drive access would have a "minimal degree of intrusion



    -12- 12













    time-wise and interference-wise" with First Step's

    operations, and if it provided "adequate assurances of

    confidentiality."

    Fennell provided a protocol requiring a specialist

    to "mirror" First Step's entire hard drive, and take the

    mirror copy to its facility in Canada for complete analysis

    and ultimate erasure.5 First Step objected to Fennell's

    protocol and provided its own protocol.6

    After reviewing the two protocols and apparently

    recognizing that the parties were unlikely to reach

    consensus, the district court concluded that its earlier

    ____________________

    5. Fennell's protocol proposed, in sum: (1) a conference
    call between the parties and their computer representatives
    to discuss the computer system configuration; (2) an on-site
    visit at First Step's warehouse where counsel would observe
    Fennell's computer representative create a "mirror" of the
    target hard drive; (3) an off-site analysis of the mirror
    hard drive by a specialty laboratory, whereby the technicians
    would attempt to determine the creation date or modification
    date of the relevant files; (4) the erasure or destruction of
    the mirror hard drive, certified by affidavit; and (5) a
    protective order stipulating, in sum, that all information on
    the mirror hard drive not relating to the creation,
    modification, or erasure, of the relevant files is
    confidential.

    6. First Step objected to Fennell's protocol because, inter _____
    alia, it: (1) failed to describe the methodology by which ____
    the technicians would attempt to determine the creation or
    modification dates (First Step noted that its computer system
    contains many hard drives, and expressed concerns over
    business risks resulting from accidental data loss,
    incompatible hardware, and system downtime); (2) did not
    adequately address attorney-client privilege and work product
    concerns as to other documents on the hard drive; and (3)
    allowed unsupervised possession of the mirror drive. The
    district court described the detailed protocol that First
    Step proposed as "extremely cumbersome and expensive."

    -13- 13













    decision to permit additional discovery had been "ill-

    advised" because it would involve "a 'fishing expedition'

    without any particularized likelihood of discovering

    appropriate information," while, "[a]t the same time, the

    process involves substantial risks and costs." To inform our

    judgment whether the denial of further discovery was an abuse

    of the district court's discretion, we first address the

    district court's conclusion that the "risks and costs" were

    substantial, and then its conclusion that the proposed

    discovery was a "fishing expedition."

    1. Risks and Costs ___________________

    A party seeking discovery under Rule 56(f) must

    "articulate a plausible basis for the belief that

    discoverable materials exist which would raise a trialworthy ____________

    issue." Price, 931 F.2d at 164 (emphasis added). In _____

    determining whether material is "discoverable," the court

    should consider not only whether the material actually

    exists, but the burdens and expenses entailed in obtaining

    the material. See Fed. R. Civ. P. 26(b)(2).7 Discovery ___

    ____________________

    7. Fed. R. Civ. P. 26(b)(2) provides:

    The frequency or extent of use of the
    discovery methods otherwise permitted
    under these rules . . . shall be limited
    by the court if it determines that: . . .
    (iii) the burden or expense of the
    proposed discovery outweighs its likely
    benefit, taking into account the needs of
    the case, the amount in controversy, the
    parties' resources, the importance of the

    -14- 14













    matters are for the informed discretion of the district

    court, and the breadth of that discretion in managing pre-

    trial mechanics and discovery is very great. Fusco v. _____

    General Motors Corp., 11 F.3d 259, 267 (1st Cir. 1993). In _____________________

    exercising this broad discretion, the district court in this

    case balanced the costs, burdens, and delays that the

    proposed discovery entailed, as well as the likelihood of

    discovering evidence of fabrication, against the obvious

    importance of the evidence sought. See Resolution Trust v. ___ ________________

    North Bridge Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994) _____________________

    (party seeking Rule 56(f) discovery "should set forth a

    plausible basis for believing that specified facts,

    susceptible of collection within a reasonable time frame, ____________________________________________________________

    probably exist")(emphasis added).

    The district court recognized First Step's concerns

    over Fennell's insufficiently detailed description of the

    proposed analysis of the hard drive,8 as well as the

    confidentiality of information on the hard drive that was

    proprietary or subject to attorney-client privilege or work-

    ____________________

    issues at stake in the litigation, and
    the importance of the proposed discovery
    in resolving the issues.

    8. First Step argued that Fennell's failure to disclose the
    specific technical steps to be taken in the analysis of the
    mirrored drive rendered her protocol nothing more than a
    proposal for a fishing expedition. First Step also argued
    that the unknown mirroring process and analysis of its system
    might temporarily or permanently affect their computer system
    and business operations.

    -15- 15













    product privilege. The district court also recognized that

    resolving the discovery dispute, and the discovery process

    itself, would increase legal and expert fees. The protocols

    alerted the district court to genuine problems surrounding

    the proposed discovery of First Step's hard drive. In

    exercising its discretion, the district court reasonably

    concluded that the discovery process would involve

    substantial risks and costs. See id. ___ ___

    2. A Fishing Expedition? _________________________

    The district court determined not only that the

    risks and costs of further discovery were substantial, but

    also that Fennell had not demonstrated "a particularized

    likelihood of discovering appropriate information." We

    agree. In our view, Fennell did not sufficiently "set forth

    a plausible basis for believing that specified facts,

    susceptible of collection within a reasonable time frame,

    probably exist." Id. (party seeking discovery must show that ___

    it will not be an "exercise in futility").

    As to "susceptibility of collection," all Fennell

    was able to say was that "there may be a way." Fennell

    submitted the affidavit of her expert, proposing that the

    original date of creation or date of any earlier modification

    of the October 25 memo could be determined by a review of the

    memo file as it resided on First Step's hard drive, rather

    than on the diskette originally provided by First Step.



    -16- 16













    First Step submitted a reply to Fennell's expert affidavit,

    which argued that Fennell's expert's statements were

    conclusory, without foundation, and that Fennell's

    speculation and conjecture did not warrant additional

    discovery. The district court then held a hearing on the

    discovery issue, at which the following was stated:

    [The Court:] It's my understanding
    that based upon telephone communications
    as recently as today, that [Fennell] is
    informed by the [computer experts who
    were to analyze the mirrored hard drive]
    that they cannot reach a conclusion from
    the disk that has been provided, but
    instead, that the only way they can reach
    any kind of conclusion is by access to
    the hard drive on [First Step's]
    premises. That at this time, they cannot
    guarantee that there they can reach a
    conclusive result, but that it's their
    position there may be a way. Is that
    essentially correct?

    [Counsel for Fennell:] That's
    correct, Your Honor.

    The lack of detail in Fennell's protocol cast even more doubt

    on the soundness of the technical basis for the discovery

    venture. The district court had good reason to be skeptical,

    based on Fennell's inadequate showing that the proposed

    analysis could determine the memo's creation date.

    As to whether "specified facts . . . probably

    exist," Fennell presented precious little that suggested that

    fabrication had occurred. The "autodating" that occurred on

    August 7, 1995, could not have indicated that the document

    was fabricated on that day, as it had been submitted more


    -17- 17













    than a year earlier in the state proceedings. The

    "autodating" could indicate an intentional conspiracy to

    cover up the document's fabrication by obliterating the

    actual creation date, but that is mere speculation.

    The "five suspicious facts," enumerated earlier,

    are equally speculative. We fail to see how the inclusion of

    an employee who had already left the company on the list of

    employees to be retained makes fabrication more likely.

    Fennell argues that the mistake indicates that the memo was

    prepared at a later point in time, when Tucker's memory of

    who was employed would have faded. That inference is, at

    best, extremely attenuated.

    The fact that the October 25 memo was retained

    while other similar memos are no longer extant is also

    virtually non-probative. It would be natural for an employer

    to take care to retain a memo pertaining to an employee, soon

    to be laid off, who had lodged a sexual harassment complaint.

    Moreover, Fennell filed a state human rights charge within

    ninety days of her complaint, thus the desirability of saving

    any documents relating to her termination became obvious soon

    after the memo was written. Nothing in the record suggests

    any similar reasons for saving the earlier memos.

    The fact that Tucker had made positive comments

    about Fennell's performance and job security and First Step's

    future shortly before she was placed on the layoff list is



    -18- 18













    not necessarily probative of fabrication, either. First Step

    does not assert that Fennell was let go for poor performance,

    but rather that her termination was part of a reorganization

    dictated by financial concerns unrelated to her performance.

    The need for her services until the end of the Christmas rush

    could have been one reason Tucker spoke as she did.

    Fennell claims that First Step managers

    inconsistently described the nature of and the reasons for

    the job action, but our review of all the statements shows no

    sinister inconsistency. It appears that the term "layoff"

    was used loosely, and was not necessarily indicative of a

    temporary, rather than a permanent, action. And the various

    statements about why she was let go, while worded in

    different ways, all relate to First Step's business objective

    of improving the economic efficiency of its warehouse

    operation. We see nothing out-of-the-ordinary or suspicious

    about the statements.

    Finally, the fact that some employees slated for

    layoff in the memo were ultimately not laid off might say

    something about the finality of the layoff list as a general

    matter, but we fail to see how it suggests fabrication. It

    is true that only two of the five individuals slated for

    Christmas week layoffs were actually laid off as scheduled,

    but the record indicates non-suspicious reasons for the

    changes in First Step's plans. Two of the three who survived



    -19- 19













    the axe stayed on in telemarketing because two other

    telemarketers requested layoffs. The other employee was out

    with an injury collecting worker's compensation during

    Christmas week; at the urging of First Step's insurer, she

    was called back to light duty after the New Year and then

    laid off shortly thereafter. And, even ignoring the

    apparently legitimate reasons why some of the slated layoffs

    did not occur, the changes in First Step's staffing plans do

    not suggest fabrication. Why would a fabricated layoff list

    be more likely to name employees eventually retained than a

    real layoff list? Wouldn't a fabricated list, written after

    the fact, have the benefit of hindsight and thus be more ____

    accurate? We see little probative value in this, or any of

    the other "five suspicious facts."

    3. Conclusion: No Abuse of Discretion _______________________________________

    Even if we were inclined to disagree with the

    district court's assessment of Fennell's arguments, which we

    are not, we reverse a district court's discovery ruling only

    for abuse of discretion. While there may be cases where

    discovery of word processing files on a computer hard drive

    might well be warranted, Fennell has not met her burden of

    demonstrating that the district court abused its discretion

    in denying that opportunity here. Thus, we hold that the

    district court acted within its discretion in disallowing

    further Rule 56(f) discovery, given its conclusions,



    -20- 20













    supported by the record, that (1) the discovery would entail

    substantial risks and costs, and (2) there was little

    particularized basis to believe that any evidence of

    fabrication could be discovered by Fennell's experts.













































    -21- 21













    B. Grant of Summary Judgment for the Defendant First Step __________________________________________________________

    1. Standard of Review _____________________

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

    like the district court, we are obliged to view the facts in

    the light most favorable to the non-moving party, drawing all

    reasonable inferences in that party's favor. Mesnick v. _______

    General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), cert. _________________ _____

    denied, 504 U.S. 985 (1992). 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 judgment as a matter

    of law." Fed. R. Civ. P. 56(c). "[T]he mere existence of

    some alleged factual dispute between the parties will not ____

    defeat an otherwise properly supported motion for summary

    judgment; the requirement is that there be no genuine issue _______

    of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. ________ ________ ___________________

    242, 247-48 (1986). "Moreover, summary judgment may be

    appropriate ``[e]ven in 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.'" Woods v. Friction _____ ________

    Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994) (quoting _______________

    Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st ____________ _________________________

    Cir. 1990)). Finally, Fed. R. Civ. P. 56(c) "mandates the



    -22- 22













    entry of summary judgment, . . . upon motion, against a party

    who fails to make a showing sufficient to establish the

    existence of an element essential to that party's case, and

    on which that party will bear the burden of proof at trial."

    Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). _____________ _______

    2. Retaliatory Discharge: The Legal Framework ______________________________________________

    Although Fennell has framed her retaliatory

    discharge claims in one federal count and two state law

    counts, the parties agree that the well-established

    analytical framework used in Title VII retaliation claims

    applies to the state law counts as well. Thus, for purposes

    of this appeal, we treat all three counts as subsumed in the

    Title VII count.

    Where, as in this case and in retaliation cases

    generally, there is no direct evidence of the defendant's

    retaliatory animus, the McDonnell Douglas burden-shifting _________________

    framework is used to allocate and order the burdens of

    producing evidence. See Mesnick, 950 F.2d at 827 (explaining ___ _______

    the interplay between the burden-shifting framework set forth

    in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and _______________________ ______

    the standards for summary judgment). To establish a prima

    facie case of retaliation, Fennell must show that: (1) she

    engaged in protected conduct under Title VII (or here,

    Maine's Human Rights Act or Whistleblower's Protection Act);

    (2) she suffered an adverse employment action; and (3) a



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    causal connection existed between the protected conduct and

    the adverse action. See, e.g., Hoeppner v. Crotched Mountain ___ ____ ________ _________________

    Rehabilitation Ctr., 31 F.3d 9, 14 (1st Cir. 1994). ___________________

    Once a prima facie showing has been made, the

    burden shifts to the defendant to articulate a legitimate,

    non-retaliatory reason for its employment decision. See, ___

    e.g., Mesnick, 950 F.2d at 827.9 If the defendant does so, ____ _______

    the ultimate burden falls on the plaintiff to show that the

    proffered legitimate reason is in fact a pretext and that the

    job action was the result of the defendant's retaliatory

    animus. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, ___ _______________________ _____

    510-11 (1993); Mesnick, 950 F.2d at 827-28. On summary _______

    judgment, the need to order the presentation of proof is

    largely obviated, and a court may often dispense with strict

    attention to the burden-shifting framework, focusing instead

    on whether the evidence as a whole is sufficient to make out

    a jury question as to pretext and discriminatory animus. Id. ___

    at 827.

    3. Application to Fennell's Case _________________________________



    ____________________

    9. Mesnick dealt with a claim of retaliation for conduct _______
    protected by the Age Discrimination in Employment Act
    ("ADEA"). 29 U.S.C. 621-634. The analytical framework for
    ADEA discrimination and retaliation cases was patterned after
    the framework for Title VII cases, and our precedents are
    largely interchangeable. See, e.g., Hazel v. U.S. Postmaster ___ ____ _____ _______________
    General, 7 F.3d 1, 3-4 (1st Cir. 1993) (applying McDonnell _______ _________
    Douglas framework and a unified retaliation analysis to _______
    claims under both the ADEA and Title VII).

    -24- 24













    Although First Step refutes that Fennell has even

    made out a prima facie case of retaliation, the district

    court apparently assumed that she did. The plaintiff's prima

    facie burden is not onerous, and we find that she met that

    burden by demonstrating, among other things, that her

    termination occurred shortly after her protected conduct, the

    report of harassment. See Oliver v. Digital Equip. Corp., ___ ______ _____________________

    846 F.2d 103, 110 (1st Cir. 1988) (discharge soon after

    protected conduct is strongly suggestive of retaliation).

    Fennell cannot seriously dispute that First Step

    met its burden of articulating a legitimate, non-retaliatory ____________

    reason for her discharge: that economic and business reasons

    led First Step to decide to lay her off, and that the

    decision was made prior to her complaint. Thus, we arrive at

    the dispositive question: whether Fennell has, on the summary

    judgment record, established genuine issues of fact that (1)

    First Step's business reasons were a pretext and (2) her

    discharge was in retaliation for her reports of sexual

    harassment.

    The district court granted summary judgment because

    it held that Fennell had not shown a genuine issue as to the

    fact that First Step decided to discharge her before she made

    the report of sexual harassment. The linchpin of the

    district court's holding was the October 25 memo, listing

    Fennell among those to be laid off. Fennell asserts that the



    -25- 25













    memo was fabricated some time after her report of harassment.

    We discussed Fennell's assertions of fabrication in analyzing

    the discovery issue, and we found them to be unpersuasive.

    For the reasons stated in that analysis, we hold that Fennell

    has not presented evidence that would allow a reasonable jury

    to find that the memorandum was fabricated. At bottom,

    Fennell's fabrication claims amount to no more than

    "conclusory allegations, improbable inferences, and

    unsupported speculation." Medina-Munoz, 896 F.2d at 8. ____________

    In addition to the memo, First Step also provided

    the uncontroverted affidavits of three employees who swear

    that Fennell was on a list of employees to be laid off, and

    they saw the list before she lodged her complaint of

    harassment. Given the memo and the three affidavits, we

    conclude that Fennell has failed to demonstrate a genuine

    issue as to whether First Step's layoff decision predated her

    complaint. Thus, no reasonable jury could find that First

    Step's business-related, non-retaliatory reason for

    Fennell's layoff decision was a pretext -- it cannot have

    retaliated for conduct that had yet to occur.

    Fennell also argues that even if the memo was

    legitimate and predated her report, the job action

    contemplated in the memo was vague and not final, and that

    retaliatory animus motivated her ultimate termination. We

    are not persuaded. The October 25 memo used the term



    -26- 26













    "layoff," and Smith used the same term in his December 20,

    1993, letter informing Fennell of her discharge. The next

    day, Tucker wrote Fennell a letter stating that her position

    had been eliminated. Fennell argues that the October 25 memo

    contemplated a "layoff," from which she would be called back

    when work was available, but that in fact she was terminated

    and her position eliminated. First Step counters that she

    was laid off because her position was eliminated, and that it

    would have brought Fennell back from layoff if another

    supervisory position opened for which she was qualified.

    First Step states that it did not transfer Fennell to a non-

    supervisory position because it does not generally demote

    supervisors to line positions, believing that morale problems

    result. Our view of the summary judgment record, viewed

    favorably to Fennell, leads to the inescapable conclusion

    that the pre-complaint decision to "lay off" Fennell was a

    decision to eliminate her position, rather than a temporary

    measure with the expectation that she would be called back.

    After reviewing the entire record, we hold that Fennell has

    not presented evidence that would allow a reasonable jury to

    find that First Step had originally decided merely to "lay

    off" Fennell but then later decided to take a more permanent

    action in retaliation for her complaint.

    We also reject Fennell's argument that the pre-

    complaint decision to lay her off was not a final decision,



    -27- 27













    and that it could have been reconsidered later, but was not

    because of her complaint. We agree with the district court

    that "could have" is not enough. Fennell has presented no

    evidence that there was later reconsideration or that the

    decision was not final. We recognize that certain other

    employees on the layoff list were ultimately not laid off

    because of changed circumstances relevant to their jobs, but

    that fact standing alone says little or nothing about any

    changes in circumstance that might have led to

    reconsideration of Fennell's job future.

    Fennell makes one other argument worthy of mention.

    She claims that after her complaint of sexual harassment she

    was "immediately demoted to a lesser position." She does

    not, however, develop this argument in her brief, and we are

    not clear whether she raises it as a separately actionable

    act of retaliation or as evidence of the retaliatory animus

    behind her termination. In either case, we agree with the

    district court's rejection of her demotion argument. It is

    difficult to see how her assignment to packing duties during

    the Christmas season rush amounts to a demotion, given that

    in her affidavit she described her earlier duties thus: "I

    spent most of my time as Warehouse Lead on the warehouse

    floor working alongside other warehouse employees." The

    demotion argument has not raised any genuine issues of fact

    as to retaliation, and in any event the argument is waived



    -28- 28













    for failure to develop it fully in her brief. See, e.g., ___ ____

    Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) ____ _______________

    (explaining that issues adverted to on appeal in a

    perfunctory manner, unaccompanied by some developed

    argumentation, are deemed to have been abandoned).

    Fennell points to a variety of other facts as proof

    that First Step could not have wanted to discharge her for

    legitimate business reasons. These other facts include her

    value as an employee, her awards for Employee of the Month

    and the Year, her utility in performing the annual inventory

    to be performed shortly after her layoff, the fact that the

    First Step catalogue was featured on the Oprah Winfrey show

    shortly before her layoff, and First Step's plans for a large

    mailing of catalogues in January 1994. In essence, she

    attempts to second-guess First Step's business judgment that

    a leaner warehouse management team -- that is, a team without

    Fennell -- was desirable. None of these other assertions

    creates a genuine issue of fact as to whether First Step's

    reasons for termination were a pretext, in light of the

    October 25 memo and the three affidavits averring that the

    layoff list was made before Fennell's complaint. "Courts may

    not sit as super personnel departments, assessing the merits

    -- or even the rationality -- of employers' nondiscriminatory

    business decisions." Mesnick, 950 F.2d at 825. _______





    -29- 29













    In the absence of a genuine issue as to the

    authenticity of the October 25 memo scheduling Fennell for a

    layoff, Fennell is left with only conjecture and innuendo

    that her termination was an act of retaliation. The district

    court appropriately granted summary judgment for First Step.











































    -30- 30













    III. III. ____

    Conclusion Conclusion __________

    For the foregoing reasons, the judgment of the

    district court is affirmed. ________













































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