Ray, III v. Ropes & Gray LLP ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1003
JOHN H. RAY, III,
Plaintiff, Appellant,
v.
ROPES & GRAY LLP; DAVID C. CHAPIN; JOHN D. DONOVAN, JR;
KEITH F. HIGGINS; JESSE J. JENNER; WILLIAM A. KNOWLTON;
OTHON A. PROUNIS; DAVID M. MANDEL; ROBERT G. JONES;
RANDALL W. BODNER; BRIEN T. O'CONNOR; JOY U. CURTIS;
BRADFORD R. MALT; JOAN MCPHEE; JOHN T. MONTGOMERY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
John H. Ray, III, with whom Ray Legal Consulting Group, P.C.
was on brief, for appellant
Michael B. Keating, with whom Christopher E. Hart, Daniel L.
McFadden, Foley Hoag LLP, Lisa G. Arrowood and Arrowood Peters LLP
were on brief, for appellees.
August 25, 2015
HOWARD, Chief Judge. John H. Ray III, at the time an
associate at the Boston law firm of Ropes & Gray ("Ropes"), was
informed in December 2008 that Ropes would not advance him for
further consideration as a partner. Contending that the employer's
decision was the result of racial discrimination, and that Ropes
retaliated against Ray in various ways after he filed a complaint
with the Equal Employment Opportunity Commission ("EEOC"), Ray
filed an action pursuant to Title VII in federal district court.
After the district court granted summary judgment to Ropes on the
discrimination claim, the retaliation claims proceeded to trial
where a jury concluded that Ropes had not unlawfully retaliated
against Ray. Ray now appeals both the district court's summary
judgment ruling and several rulings made during trial. We affirm.
I. Background
Because the retaliation claims went to trial, we present
the facts in the first instance in the light most favorable to the
jury verdict. Smith v. Jenkins, 732 F.3d 51, 59 (1st Cir. 2013).
We recognize that Ray has also challenged the district court's
summary judgment decision and that the facts relevant to his
discrimination and retaliation claims overlap considerably.
Accordingly, when we reach the summary judgment issue, we consider
the facts in the light most favorable to Ray and draw all
reasonable inferences in his favor. Reyes-Pérez v. State Ins. Fund
Corp., 755 F.3d 49, 50 (1st Cir. 2014).
-2-
With limited exceptions, during the relevant time period
Ropes adhered to an "up or out policy" whereby senior associates
who were not promoted to or did not continue to advance toward a
partner or counsel position were asked to leave the firm.
Partnership decisions were made by the firm's nine-member Policy
Committee. In an associate's sixth through ninth years the
Committee annually considered evaluations of each associate
submitted by the firm's partners. Selection was competitive. To
be considered for partner, Ropes required that associates garner
"consistently superlative" reviews. Although technical legal
skills and analytic acumen were important criteria for advancement,
the Committee also considered, among other things, an associate's
management ability, collegiality, and the needs of particular
practice groups or firm offices. In some years, no new partners
were named from among a practice group's senior associates.
Ropes typically promoted its associates to partner during
their ninth year, although the firm generally endeavored to give
associates an indication of their partnership prospects during
their eighth year. If it became clear at the conclusion of an
associate's eighth year that he or she would not make partner,
Ropes asked the associate to leave the firm.
In 2005, Ray joined Ropes as a fifth-year associate, and
he received generally positive reviews during his initial year at
the firm. But Ray's reviews in 2007 and 2008 proved decidedly less
-3-
positive. In 2007, at the end of Ray's seventh associate year,
partner John Donovan informed Ray that becoming a partner would be
an "uphill climb" and his chances were likely "no better than
even." Donovan expressed specific concern about Ray's interactions
with the firm's staff and other associates, noting that Ray's
failure to improve his relationships and leadership skills would be
a "dealbreaker." Ray's reviews in 2008 remained predominantly
negative. Several partners noted Ray's continued difficulties
working with associates and staff, while others informed the Policy
Committee that Ray had trouble meeting deadlines and needed to
improve his writing skills; some indicated that Ray should be given
an "exit message."
Donovan met with Ray in December 2008, and informed him
that the Policy Committee had concluded that a consensus to promote
Ray to partner had not and would not develop. The firm offered him
a six-month severance package through June 2009, during which Ray
would continue to receive his salary, could use his Ropes office,
and could hold himself out as a Ropes associate. Donovan told Ray
that finding new employment should be his top priority. Ray
requested several extensions of this severance period. The first
occurred on the same day as the meeting with Donovan, when Ray
inquired whether the period could be extended to September 2009
while he pursued an academic position. In February and April of
2009, Ray made additional requests in light of the prevailing
-4-
economic conditions and the limited number of law firms that were
then hiring. Ropes denied each request.
As the severance period progressed, and Ray's extensions
were denied, Ray began to imply that he did not "feel the [Policy
Committee]'s decision was fair or appropriate." In May 2009,
roughly six weeks before the end of the severance period, Ropes
offered Ray a two-month extension, although the proposal required
Ray to release any and all claims against Ropes. Ray rejected the
offer on May 14, and sent a draft EEOC complaint to Donovan by e-
mail. In that e-mail, Ray stated that he would file the complaint
unless Ropes either offered him an indefinite extension of his
severance period or a settlement in the amount of $8.5 million. In
response, Donovan informed Ray that he was not to return to his
Ropes office and that his personal items would be mailed to him.
Ray filed his complaint with the EEOC the following day,
alleging that Ropes discriminated against him in deciding not to
advance him to partner. He also alleged that Ropes's decision
constituted retaliation for complaints that Ray had made to
management about the racially-charged remarks of two partners.1
1
We address these remarks, below, as pertinent to Ray's
challenge to the summary judgment ruling. Although Ray's EEOC
complaint alleged that Ropes decided not to promote him in
retaliation for these earlier complaints, as explained below, Ray's
retaliation claims as tried before the jury and argued on appeal
only involve actions that Ropes and its employees allegedly took
after Ray filed his EEOC complaint. Specifically, these claims
involve two partners' refusal to supply Ray with promised letters
of recommendation and Ropes's release of the EEOC's initial
-5-
Despite the complaint, Ropes continued to compensate Ray through
the conclusion of his severance period.
A few weeks after filing his EEOC complaint, Ray renewed
an earlier request for letters of recommendation from two Ropes
partners -- Brien O'Connor and Randall Bodner -- to support Ray's
application for a position as an Assistant United States Attorney.
Although both had previously agreed to write letters, Bodner
responded by e-mail that he could no longer "in good conscience"
write a letter in light of Ray's EEOC complaint, which Bodner
considered a "groundless claim" brought only for Ray's "own
personal benefit." Bodner also rejected a later request to
recommend Ray for a law school professorship. O'Connor never
responded to Ray's renewed request.
The EEOC issued an initial determination letter in
January 2011, concluding that the evidence failed to indicate that
a violation of the law had occurred. Ray sought reconsideration of
that determination, and the EEOC issued a final determination in
February 2011. In its reconsidered decision, the agency reaffirmed
its determination that the evidence did not support a finding of
discrimination but concluded that, after further consideration, the
determination letter to media website "Above the Law."
-6-
evidence did support a finding that Ropes had retaliated against
Ray for filing his charge with the EEOC.2
After the EEOC concluded that conciliation efforts had
failed, declined to bring a lawsuit against Ropes, and provided Ray
with notice of his right to sue, Ray made his claims public. On
May 10, 2011 he faxed the EEOC's final determination to several
politicians and the president of the National Association for the
Advancement of Colored People. In addition, on May 12, Ray, an
alumnus of Harvard Law School, sent a letter to the law school's
dean enclosing the EEOC determination and requesting that Ropes be
barred from participating in the university's on-campus interview
process and be foreclosed from using the university's facilities.
That letter was copied to the Harvard Black Law Students
Association and the Harvard Law Review.
Legal media website "Above the Law" obtained a copy of
the letter to the dean and decided to publish the letter on its
blog. Before doing so, the website requested comment from Ropes's
Director of Public Relations, Timothy Larimer. In response,
Larimer provided the website with an unredacted copy of the EEOC's
initial January 2011 determination letter, which contained
sensitive and confidential information about Ray's employment at
2
The record does not make clear when or why the focus of
Ray's EEOC retaliation claim shifted from Ropes's decision not to
promote him to partner to Ray's filing of his charge with the EEOC.
-7-
the firm. "Above the Law" posted that letter in full on its
website, redacting only the name of a particular Ropes employee.
Throughout this period, Ray made several settlement
demands. Armed with the EEOC's reconsidered finding in February
2011, Ray first demanded by e-mail a settlement of at least $10
million. In May 2011 he increased his request to $21.5 million,
and later to $40 million.
In August 2011, Ray filed this lawsuit alleging, among
other claims, discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964 and analogous Massachusetts
statutes. He alleged that Ropes's decision not to advance him to
partner was based on racial discrimination and retaliation for his
earlier complaints of discrimination to management, and that the
firm had also retaliated against him for filing his EEOC complaint
and sending letters to Harvard Law School's dean and others. Ray
subsequently moved for summary judgment on the retaliation claims,
while Ropes moved for summary judgment on all claims. The district
court granted summary judgment for Ropes on the discrimination
claim, ruling that "Ray ha[d] not come forward with plausible
evidence that the partner evaluations or the Policy Committee's
decision, consciously or unconsciously, were tinged with or
influenced by racial animus." Ray v. Ropes & Gray LLP, 961 F.
Supp. 2d 344, 355 (D. Mass. 2013). For similar reasons, the
district court held that Ray had not shown pretext and precluded
-8-
him from pursuing at trial his claim that Ropes had retaliated
against him (by not making him partner) for reporting prior
incidents of alleged discrimination, including the racially-charged
remarks of two partners, to management. Id. at 358 n.14. On two
of Ray's other claims of retaliation, however, the court denied
summary judgment and found that Ray had established a genuine issue
of material fact about whether Ropes had retaliated against him by
refusing to provide him with letters of recommendation and by
providing the EEOC's initial determination letter to "Above the
Law." Id. at 357-60.
Those retaliation claims proceeded to trial. During
closing arguments Ropes suggested, among other things, that Ray
"did not actually believe in" his EEOC claim and that Ray had used
it "to try to extort money" from the firm. The jury found in favor
of Ropes, and the special verdict form makes clear that the jury
concluded that Ray had not established a prima facie case of
retaliation because he had not engaged in protected activity under
Title VII. The parties do not dispute that the jury so found. In
accordance with the verdict form's instructions, the jury thus had
no opportunity to consider whether Ropes retaliated against Ray for
that activity (neither do the parties dispute this consequence of
the jury's finding). This timely appeal followed.
-9-
II. Analysis
Ray's appeal follows principally along two paths. First,
he asserts that the district court made several errors of law when
instructing the jury on the elements of his retaliation claims.
Second, he argues that the district court erred in granting summary
judgment on his discrimination claim. We consider each in turn.
A. The Retaliation Claims
Section 704(a) of Title VII makes it unlawful for an
employer to retaliate against an employee for engaging in certain
protected activity. See 42 U.S.C. § 2000e-3(a). To establish a
prima facie case of retaliation, a plaintiff must prove that "(1)
he or she engaged in protected activity under Title VII, (2) he or
she suffered an adverse employment action, and (3) the adverse
employment action was causally connected to the protected
activity." Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d
39, 46 (1st Cir. 2010).
Title VII protects from retaliation two distinct
varieties of activity, both implicated in this case. The statute's
participation clause prohibits an employer from discriminating
against someone who "made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under" Title VII. 41 U.S.C. § 2000e-3(a). While the
participation clause protects employees from retaliation for filing
a Title VII complaint, it also "casts its protective cloak much
-10-
more broadly." Rodríguez-Vives v. P.R. Firefighters Corps of P.R.,
743 F.3d 278, 283-84 (1st Cir. 2014). The clause also protects,
for example, an employee who informally files or defends a charge
of discrimination, involuntarily testifies as a witness in a
proceeding, or aids a co-worker in asserting her rights. See,
e.g., Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511
F.3d 216, 223 (1st Cir. 2007) (complaining to human resource
department and EEOC); Deravin v. Kerik, 335 F.3d 195, 204 (2d Cir.
2003) (participating as witness); Eichman v. Ind. State Univ. Bd.
of Trs., 597 F.2d 1104, 1107 (7th Cir. 1979) (assisting co-worker
in exercising rights).
The statute also protects "opposition activity," distinct
from the "participation activity" described above. The opposition
clause prohibits employers from retaliating against a person who
"has opposed any practice made an unlawful employment practice by
[Title VII]." 42 U.S.C. § 2000e-3(a). Protected opposition
activity includes responding to an employer's inquiries about
inappropriate behavior, writing letters protesting an employer's
allegedly unlawful actions, or picketing and boycotting an
employer. See, e.g., Crawford v. Metro. Gov't of Nashville &
Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009) (responding to
employer's inquiries); Robinson v. S.E. Penn. Transp. Auth., Red
Arrow Div., 982 F.2d 892, 896 (3d Cir. 1993) (letter to
congressman); Payne v. McLemore's Wholesale & Retail Stores, 654
-11-
F.2d 1130, 1141 (5th Cir. Unit A Sept. 1981) (picketing and boycott
activity). Unlike the participation clause, which protects an
employee from retaliation for direct engagement with Title VII
proceedings, the opposition clause sweeps even more broadly and
protects an employee for more informally opposing an employment
activity that might violate Title VII.
As presented at trial, Ray's retaliation claims were
premised on two alleged instances of retaliation, each implicating
a different type of protected activity. First, Ray sought to
demonstrate that Ropes retaliated against him for filing his EEOC
complaint (participation activity) when Bodner and O'Brien refused
to supply him with letters of recommendation. Second, Ray alleged
that Ropes retaliated against him for sending letters to Harvard
Law School's dean and several other high-profile individuals
(opposition activity) by supplying the EEOC's initial determination
letter to "Above the Law."
At trial, the district court instructed the jury that
Ray's EEOC complaint was protected activity under the participation
clause, as a matter of law, "if it is done in good faith." The
court further instructed the jury that, to prove good faith, Ray
must show "that he was acting under the sincerely held belief that
his right to be free from discrimination had been violated." By
contrast, the court instructed the jury that Ray's opposition
activity (his letters) was protected if Ray had shown that it was
-12-
both undertaken "in good faith" and "based on a reasonable belief
that [his] employer has engaged in an unlawful employment
practice." In both instances, the jury concluded that Ray's
activity was not protected by Title VII, thus resolving his
retaliation claims on the first prong of the prima facie case. Ray
argues that both instructions were erroneous.
1. Participation Clause: Ray's EEOC Complaint
i. Preservation
Ray first claims that the district court erred in holding
that a plaintiff seeking protection for participation activity must
show -- as an element of his prima facie case -- that he filed his
EEOC complaint in "good faith." Ray describes his challenge as an
attack on the jury instructions, an argument that Ropes contends he
waived below by requesting an alteration to the jury instructions
to affirmatively endorse the good faith element that he now
contests. Therefore, we must first determine whether Ray properly
preserved this challenge.
Ropes's focus on the final round of instructional
skirmishes obscures the court's earlier, definitive resolution of
the specific legal question that Ray now challenges on appeal. It
is true that Rule 51 requires a party to object to the language of
an instruction at the close of trial to preserve any argument for
direct appeal. See Fed. R. Civ. P. 51(c)(2); Surprenant v. Rivas,
424 F.3d 5, 15 & n.3 (1st. Cir. 2005). But not all legal rulings
-13-
are made during wrangling over jury instructions. For instance,
where motions in limine provide a "final and unconditional"
resolution of an issue, a party is not required to take further
steps to preserve that issue for appeal. Crowe v. Bolduc, 334 F.3d
124, 133 (1st Cir. 2003). Here, although Ray's description of his
challenge as one to the "jury instruction, rather than [to] the
district court's underlying conclusion, is perplexing," Seahorse
Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 76 (1st
Cir. 2002), we need not be distracted by inartful labels. A fair
view of the record indicates that Ray adequately objected to the
court's legal ruling to preserve the issue for appeal.
Ray's argument before us makes clear that his true
concern is with the district court's legal ruling that good faith
is an element of the prima facie case. That question was fully
litigated at the summary judgment stage and definitively decided
during the opening days of trial. By the fourth day of trial the
court had held that, under its reading of the law, good faith was
a required element. It had further ruled that it would "give
instructions which are based largely on the Third Circuit's Pattern
Instructions" regarding good faith. As Ray's reply brief points
out, his requested alteration to the court's subsequent draft jury
instructions (which included the good faith element) -- the one
that Ropes contends indicates a waiver -- came only after the
court's definitive ruling. Given the court's firm resolution in
-14-
the early days of trial, Ray was justified in assuming that the
trial had crossed the Rubicon and that his participation clause
claim would unquestionably be tried with a good faith element. We
conclude that in these circumstances, Ray was not required to
uselessly raise an objection yet again when commenting on the
court's draft jury instructions several days later. And we are not
alone in our assessment; in similarly unusual circumstances both
this circuit and the Supreme Court have concluded the same. Cf.
Krock v. Elec. Motor & Repair Co., 327 F.2d 213, 215-16 (1st Cir.
1964) (rejecting argument that defendant's failure to reassert
objections during jury instructions waived objections properly
raised during trial); City of St. Louis v. Praprotnik, 485 U.S.
112, 120 (1988) (plurality op.) (reaching jury instruction, despite
failure to comply with Rule 51, where "the focus of petitioner's
challenge is not on the jury instruction itself, but on the denial
of its motions for summary judgment and a directed verdict" raising
the same legal issue).
Given the considerable attention paid to the "good faith"
question in the district court, it should come as no surprise to
anyone that the issue is now front and center on appeal. The
realities of this record plainly show that the court's "good faith"
ruling was firmly in place by the first few days of trial, with
counsel's objections definitively noted. Therefore, there is no
obstacle to our direct review of that ruling, notwithstanding Ray's
-15-
description of the district court's error as an erroneous "jury
instruction."3
ii. Good Faith and Protected Participation Activity
We must then resolve whether a plaintiff claiming
retaliation must act in good faith when engaging in activity
protected by the participation clause.
Our precedent makes clear that, unlike opposition
activity, a plaintiff who engages in participation activity need
3
In denying a motion in limine on the eve of trial, the
district court wrote in an electronic order that "Plaintiff is
correct that good faith is not an element of a retaliation claim
premised on participation activity." On appeal, Ray argues that
the court's subsequent holding that good faith is an element
violated the law of the case doctrine. We disagree. Even assuming
that the law of the case doctrine applied to the court's
interlocutory order, we would "review the decision to reconsider
only for a particularly egregious abuse of discretion." Harlow v.
Children's Hosp., 432 F.3d 50, 55 (1st Cir. 2005). As the parties'
draft jury instructions indicated, there was considerable confusion
before trial between the parties and the court as to the court's
position on the "good faith" element. In the face of this
confusion -- and prior to any final judgment on the retaliation
claims Ray presented at trial -- it was not an abuse of discretion
for the court to clarify its position during the first few days of
trial. See United States v. Tejeda, 481 F.3d 44, 57 (1st Cir.
2007). Of course, we still assess whether any change in position
prejudiced Ray. See id.; Fiori v. Truck Drivers, Local 170, 354
F.3d 84, 90 (1st Cir. 2004). But we discern no prejudice here. At
no point did Ray claim below that his trial preparation had been
prejudiced nor, as far as we can tell, did he ever reference the
district court's electronic order when discussing the good faith
issue during the first few days of trial. Moreover, the order was
published a mere four days before trial and long after discovery
had concluded. On appeal Ray has not indicated how he was
prejudiced during the brief period he may have assumed that he
would not need to make any showing of good faith. Finally, the
court clarified its position before the jury was even sworn, and
Ray was thus provided with a full opportunity to present evidence
on the issue -- evidence which included his own testimony.
-16-
not hold a reasonable belief that his employer's actions actually
violated Title VII. In Wyatt v. City of Boston, we distinguished
between the necessary showings under the participation and
opposition clauses and explained that it was "well settled" that
the participation clause "protects an employee regardless of the
merit of his or her EEOC charge." 35 F.3d 13, 15 (1st Cir. 1994)
(citing Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th
Cir. 1978)). We explained that section 704(a) contains no language
indicating that a plaintiff's charges must be valid or even
reasonable in order to be protected as participation activity.
Id.; accord Glover v. S.C. Law Enf't Div., 170 F.3d 411, 414 (4th
Cir. 1999) (holding that "[r]eading a reasonableness test into
section 704(a)'s participation clause would do violence to the text
of that provision and would undermine the objectives of Title
VII").
To establish a prima facie case of protected opposition
activity, by contrast, we noted that an employee who engages in
opposition activity must hold a "reasonable belief that the
practice the employee is opposing violates Title VII."4 Wyatt, 35
F.3d at 15. We have since reiterated that, to show protected
4
This distinction arguably flows from the statute's text.
The opposition clause protects the opposition of "any practice made
an unlawful employment practice," while the participation clause
does not similarly "connect the protected activity to the
unlawfulness of any employment practice." Gilooly v. Mo. Dep't of
Health & Senior Servs., 421 F.3d 734, 742 (8th Cir. 2005)
(Colloton, J., concurring in part and dissenting in part).
-17-
opposition activity, a plaintiff must demonstrate that he held a
"good faith, reasonable belief that the underlying challenged
actions of the employer violated the law."5 Fantini v. Salem State
Coll., 557 F.3d 22, 32 (1st Cir. 2009).
Consistent with the distinction set forth in Wyatt, for
purposes of his participation clause claim the district court did
not require Ray to demonstrate that his belief that Ropes had
discriminated against him was reasonable. The district court did,
however, require Ray to show that he made his EEOC complaint in
good faith out of a "sincerely held belief that his right to be
free from discrimination had been violated."
Ray's sole argument for why the district court erred in
that good faith ruling is his cursory statement that Wyatt stands
for the proposition that "a showing of good faith for protected
participation activity is not required." Yet, Wyatt did not
explicitly resolve the good faith issue one way or another. To be
sure, Wyatt rejected any requirement that the Title VII claim
underlying a plaintiff's participation activity -- like Ray's EEOC
charge here -- prove valid or reasonable. 35 F.3d at 15. And we
5
Although our language was general and could be construed as
applying equally to the participation and opposition clauses,
Fantini involved a claim under the opposition clause, and we have
since cited Fantini as establishing the test specific to that
clause. See Collazo, 617 F.3d at 48. Nor could we have overruled
Wyatt's holding that reasonableness is not required for
participation activity absent an en banc decision by this court.
See Muskat v. United States, 554 F.3d 183, 189 (1st Cir. 2009).
-18-
have since described the showing that is required under the
opposition clause (which does require reasonableness) as a "good
faith, reasonable belief" standard. See, e.g., Collazo, 617 F.3d
at 48.
But the fact that Wyatt rejected a reasonableness
requirement for purposes of the participation clause does not
necessarily, or automatically, indicate that a plaintiff need not
engage in participation activity in good faith, either. Unlike the
reasonableness requirement, when assessing a plaintiff's good faith
a factfinder need only ask whether a plaintiff had a subjective,
honestly held belief that her claim was valid. Indeed, we have
previously distinguished between a "good faith" belief and a
"reasonable belief" in the context of Title VII's anti-retaliation
provisions. See Monteiro v. Poole Silver Co., 615 F.2d 4, 8 (1st
Cir. 1980) (distinguishing between whether a plaintiff "honestly
held" his belief that the employer had engaged in unlawful activity
and whether that belief was reasonable). And other circuits
similarly view the two as distinct elements, even though they are
often coupled together. See, e.g., Reed v. A.W. Lawrence & Co.,
Inc., 95 F.3d 1170, 1178 (7th Cir. 1996) (noting that the
defendants had "not disputed that the plaintiff believed in good
faith that [her co-worker's] comment subjected her to an unlawful
employment practice" and addressing only "whether the record
supports the jury's finding that this belief was reasonable");
-19-
Kissell v. Am. Fed'n of State, Cnty. and Mun. Emps., 90 F. App'x
620, 622 (3d Cir. 2004) (similar). Accordingly, we fail to see how
Wyatt's rejection of a reasonable belief standard for participation
activity necessarily resolves whether a plaintiff must engage in
that activity in good faith. Cf. Hochstadt v. Worcester Found. for
Experimental Biology, 545 F.2d 222, 230-31 (1st Cir. 1976) (noting
that "section 704(a) clearly does protect an employee against
discharge for filing complaints in good faith before federal and
state agencies").
Ultimately, in this case we need not definitively decide
whether a plaintiff must engage in protected activity in good faith
in order to invoke the protections of Title VII. Wyatt does not
expressly address this question, and Ray cites no other cases --
binding or otherwise -- to support his reading of Wyatt. Nor does
he provide any further explanation or argument as to why we should
assume that Wyatt intended to hold that good faith is not a
necessary element for a participation clause claim, or that
Congress intended to protect from retaliation claims of
discrimination made in bad faith. Simply put, Ray has not set
forth a coherent argument on appeal for why the district court
erred as a legal matter in requiring him to show good faith for
purposes of the participation clause. Thus, we deem his argument
waived for lack of development. See Home Orthopedics Corp. v.
Rodríguez, 781 F.3d 521, 532 (1st Cir. 2015); see also Medina-
-20-
Rivera v. MVM, Inc., 713 F.3d 132, 140 (1st Cir. 2013) (finding
undeveloped an argument that lacked "even a persuasive explanation
of what the law should be, assuming [the party] found no
authority"). And because Ray raises no argument that the evidence
was insufficient for the jury to conclude he did not act in good
faith, we need go no further.
2. Opposition Clause: Ray's letters
Ray also argues that the district court's instruction
regarding his opposition activity erroneously shifted the jury's
focus from Ray's own subjective beliefs about his underlying claim
to whether his conduct was reasonable. This deft effort at
semantics need not detain us long, however, because Ray
affirmatively waived this argument below. See United States v.
Jordan, 112 F.3d 14, 18 (1st Cir. 1997). He requested a
modification to the jury instructions that stated: "writing letters
of protest in good faith to anyone, including a newspaper reporter
or a Congressperson, constitutes 'protected activity.'" The
district court gave an instruction similar in all relevant
respects, stating: "I instruct you as a matter of law that writing
such a protest letter is a protected activity if it is done in good
faith and based on a reasonable belief that an employer has engaged
in an unlawful employment practice such as retaliation." And Ray's
counsel raised no objection to that instruction after the jury was
-21-
charged.6 Thus, having affirmatively requested the alteration and
having "directly bypassed" the "opportunity to challenge and
perhaps modify the instruction[]" as stated by the court, Ray has
"waived any right to object to [it] on appeal." United States v.
Wall, 349 F.3d 18, 24 (1st Cir. 2003).
Because Ray has not demonstrated that the district
court's participation clause and opposition clause instructions
were erroneous in this case, the jury's verdict on the retaliation
claims is affirmed.7
6
Unlike the participation clause question, the court neither
discussed this matter nor definitely ruled upon it before the
charge conference.
7
To the extent it is necessary to reach Ray's passing
argument that the district court erred in excluding the testimony
of his damages expert, Dr. Moore, the argument lacks merit. Ray
contends that Dr. Moore's testimony would have corroborated Ray's
good faith "conduct" by demonstrating that his settlement demands
were reasonable. But Ray did not proffer Dr. Moore's testimony on
this ground below and, therefore, the district court had no
occasion to consider the argument. "The failure of counsel to have
informed the trial court of the correct evidentiary theory under
which evidence is sought to be admitted is ordinarily a waiver of
the right to argue that theory on appeal." United States v.
DeSimone, 488 F.3d 561, 570 (1st Cir. 2007). Ray also argues -- in
a single sentence -- that the district court made no factual
findings regarding the expert report's relevance. But our own
review of the record shows that the court did make such findings
and concluded that Dr. Moore had not used appropriate comparators
to reach his proffered damages figure and that his report did not
adequately discuss any causal relationship between Ropes's conduct
and Ray's purported injuries. Ray has made no effort to argue why
those conclusions were in error.
-22-
B. The Discrimination Claim
Ray also protests the district court's grant of summary
judgment to Ropes on his discrimination claim. We review the
district court's determination de novo, viewing the facts in the
light most favorable to Ray and drawing all reasonable inferences
in his favor. See Espinal v. Nat'l Grid NE Holdings 2, LLC, 693
F.3d 31, 32, 34 (1st Cir. 2012).
To successfully establish a Title VII disparate treatment
claim, Ray must show that he suffered intentional discrimination.
See id.; see also 42 U.S.C. § 2000e-2(a)(1). Because Ray has not
offered "direct proof" of Ropes's alleged discriminatory animus,
"we allocate the burden of producing evidence according to the now-
familiar three-step framework set forth in McDonnell Douglas Corp.
v. Green." Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995); see also
McDonnell Douglas, 411 U.S. 792, 802-05 (1973). Under that
framework, Ray must first establish a prima facie case by showing
that: "'(1) he is a member of a protected class; (2) he was
qualified for the job; (3) the employer took an adverse employment
action against him; and (4) the position remained open or was
filled by a person with similar qualifications.'" Cham v. Station
Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2012) (quoting Kosereis
v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003)). If that
showing is made, the burden of production then shifts to Ropes, who
must establish a legitimate, nondiscriminatory justification for
-23-
the adverse employment action (here, the refusal to advance Ray
toward partner). Id. at 94. If Ropes does so, "the McDonnell
Douglas framework 'disappears' and the sole remaining issue is
'discrimination vel non.'" Id. (alteration omitted) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43
(2000)). Despite the shifting burdens of production, Ray retains
the "ultimate burden of persuasion," and to avoid summary judgment
he must raise a genuine issue of material fact that "the reasons
offered by [Ropes] were a pretext for discrimination."8 Id.The district court concluded, and the parties do not
contest, that Ray successfully established a prima facie case of
discrimination and that Ropes provided a legitimate, non-
discriminatory justification for its refusal to advance Ray --
namely, Ray's negative reviews. Thus, our sole inquiry is whether
Ray established a genuine issue of material fact that Ropes's
justification is pretextual and the firm's action was, in fact,
"improperly motivated by discrimination." Kosereis, 331 F.3d at
213. To do so, it is not sufficient for Ray "merely to impugn the
veracity of the employer's justification." Azimi v. Jordan's
Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006) (citations and
internal quotation marks omitted). Instead, Ray "must produce
8
Massachusetts law also makes use of the McDonnell Douglas
burden-shifting framework. See, e.g., Knight v. Avon Prods., Inc.,
780 N.E.2d 1255, 1261 (Mass. 2003). Like the district court, we
discuss Ray's Title VII and Massachusetts discrimination claims in
a single analysis.
-24-
sufficient evidence to create a genuine issue of fact as to two
points: 1) the employer's articulated reasons for its adverse
actions were pretextual, and 2) the real reason for the employer's
actions was discriminatory animus." Mariani-Colón, 511 F.3d at
223. In other words, Ray must "elucidate specific facts which
would enable a jury to find that the reason given is not only a
sham, but a sham intended to cover up the employer's real and
unlawful motive of discrimination." Azimi, 456 F.3d at 246(alteration, citation, and internal quotation marks omitted).
With this legal framework in mind, we turn to the
specific evidence adduced by Ray before the district court and the
arguments made before us on appeal. Ray points largely to four
types of evidence: (1) comparator evidence of other Ropes
associates who were promoted to partner or counsel; (2) the alleged
promotion of other associates on the basis of "racial"
characteristics; (3) the subjective nature of Ropes's review
process; and (4) Ropes's poor record of advancing black associates
to partner throughout the firm's history. None of the evidence,
however, raises a genuine issue of material fact that the actual
reason for Ray's dismissal was racial animus.9
9
To be clear, although we separately discuss each type of
evidence in turn so that we can set forth our rationale, after
considering all of this evidence as an "aggregate package of
proof," including the evidence Ray proffered to establish his prima
facie case, we conclude that the "totality of the evidence," is
insufficient to raise a genuine issue of material fact. Fernandes
v. Costa Bros. Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999).
-25-
First, as comparator evidence Ray points to the
evaluations of several other associates who, unlike Ray, were
advanced to either a partner or counsel position. Ropes responds
that the identified individuals are not adequate comparators and,
regardless, that Ray merely "cherry-picks" several negative
comments without considering the evaluations in their entirety.
After a careful review of the evaluations for each putative
comparator, we agree with the district court that comparison to
these individuals is inapt.
A plaintiff in a disparate treatment case may attempt to
show that "'others similarly situated to him in all relevant
respects were treated differently by the employer.'" Kosereis, 331
F.3d at 214 (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12,
20 (1st Cir. 1999)). "Reasonableness is the touchstone" when
considering comparators in a disparate treatment case; that is,
"while the plaintiff's case and the comparison cases that he
advances need not be perfect replicas, they must closely resemble
one another in respect to relevant facts and circumstances."
Conward, 171 F.3d at 20. We ask whether "a prudent person, looking
objectively at the incidents, would think them roughly equivalent
and the protagonists similarly situated." Dartmouth Review v.
Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on
We reject Ray's characterization of the district court's separate
consideration and rejection of each type of evidence of pretext as
indicating it did not, also, consider the evidence in its totality.
-26-
other grounds by Educadores Puertorriqueños en Acción v. Hernández,
367 F.3d 61, 64 (1st Cir. 2004).
The district court reasoned that the associates whom Ray
cited are not relevant comparators, in part, because they worked in
different practice groups than Ray. We think that conclusion
inappropriately circumscribed the universe of associates from which
comparison cases could be drawn, however. To the extent that Ray
challenges the application of Ropes's consistent superlatives
standard, he can look beyond a specific practice group.
But having closely reviewed those evaluations,10 we
nevertheless find that they present "differentiating or mitigating
circumstances that would distinguish" Ropes's treatment as to each
associate. Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751
(1st Cir. 1996) (citation and internal quotation marks omitted).
The evaluations of the non-black associates Ray identifies by and
large contain a mix of both positive and negative commentary on
those associates' work product and ability to work with others.
Yet even if we assume, as Ray argues, that those evaluations
demonstrate that Ray's work was equivalent to the work of the
comparator associates, Ray does not dispute that Ropes's
partnership decisions are based on a number of factors beyond the
quality of an associate's work. Ray also does not dispute that the
10
The evaluations of comparator associates are sealed. To
avoid revealing identifying information, our description is
necessarily general.
-27-
negative comments partners made in his own evaluations extend far
beyond his work product. For example, Ray's evaluations include
repeated refrains that he had insulted his co-workers, demeaned
junior associates he worked with, and passed off work to others.
Suffice it to say that these comments were distinctively more
extreme, and more numerous, than those contained in the evaluations
of any of the comparators he offered. Thus, those other
associates' evaluations bear "too little similarity" to Ray's "to
furnish a basis for suspecting racial discrimination." Conward,
171 F.3d at 22.
Second, in addition to comparator evidence, Ray points to
some of the same associates to argue that Ropes has a pattern of
"regularly us[ing] race in making employment decisions." He
alleges that, despite their poor evaluations, several Asian
associates (so described by the parties) were promoted to partner
because they accepted assignments to the firm's Asian offices. As
an initial matter, Ray's assertion that there existed a quid pro
quo relationship between those associates' relocation to overseas
offices and the improvement of their partnership prospects is not
supported by the record. The evaluations of those associates he
identifies indicate that they made transitions prior to
consideration as partner, and not -- as far as the record reveals
-- under the direction of partners who insisted that the only path
to partnership involved relocation. Moreover, Ray does not dispute
-28-
that those associates had language skills that were valuable assets
to the specific overseas offices in which those associates worked.
Nor does Ray dispute that an associate's language skills would be
a legitimate factor for the firm to consider when placing an
attorney in one of its overseas offices or when considering an
attorney for partner. Yet, Ray still asserts -- with no factual
support or reasoned explanation -- that these "purported objective
qualities were used as mere proxies for race." Based on the
evidence Ray has proffered, we simply to fail to see how a
factfinder could so infer from this record.
Third, Ray contends that Ropes's subjective review
process lends credence to his claim of discriminatory animus. To
be sure, subjective evaluations may in some circumstances "easily
mask covert or unconscious race discrimination." Robinson v.
Polaroid Corp., 732 F.2d 1010, 1015 (1st Cir. 1984). But Ray's
argument ultimately founders because it is supported only by
speculation. He supplies no evidence that creates a credible
inference that his own review process was based on any racial
animus. He claims that reviews were solicited from partners with
whom he had worked rarely, if at all. Our review of the comparator
evidence, however, reveals that this practice was not unusual;
there exists an established pattern of Ropes partners supplying
reviews for associates with whom they had rarely worked, opining on
the associate's fit into the culture of the firm or the associate's
-29-
ability to solicit business and work collegially with other staff.
Such remarks could mask racial discrimination. But in Ray's case
they were limited to repeated refrains about his treatment of other
associates and firm staff -- refrains corroborated by those
partners who did work with Ray. There is nothing about these
comments that implies racial animus toward Ray.
Ray also points to two racially-charged remarks,
allegedly made by two partners in 2008, which we accept as true for
purposes of reviewing a summary judgment ruling. In February 2008
partner Robert Skinner purportedly asked Ray to serve as the "token
black associate" or "black face" on a matter. In April 2008,
Randall Bodner –- whom Ray later asked for a letter of
recommendation -- allegedly related a war story during a mediation,
the punch-line of which was that a Mafia informant "beat a nigger
to death." Ray says that he complained about these comments to the
heads of the litigation department (Roscoe Trimmier and Lisa
Ropple), and to the head of the firm's Diversity Committee (Diane
Patrick) and that he received negative evaluations from Skinner,
Ropple, and Trimmier after making those complaints.
Racially derogatory remarks are certainly "material to
the pretext inquiry." Bonefont-Igaravidez v. Int'l Shipping Corp.,
659 F.3d 120, 125 (1st Cir. 2011). Their probative value, however,
is "'circumscribed if they were made in a situation temporally
remote from the date of the employment decision in question, or if
-30-
they . . . were made by nondecisionmakers.'" Id. (quoting McMillan
v. Mass. Soc'y for Prevention of Cruelty to Animals, 140 F.3d 288,
301 (1st Cir. 1998)). Thus, even crediting his account, Ray has
not identified any connection between the comments and the Policy
Committee's decision that supports an inference of racial animus.
Skinner and Bodner were not on the Policy Committee, nor were
Ropple, Trimmier, or Patrick. There is also no evidence that the
Policy Committee was aware of the offensive comments or of Ray's
complaints.
Finally, Ray relies on the statistic that only one black
associate had been promoted to partner at Ropes in the history of
the firm. If accurate, it is unfortunate -- even troubling -- that
as of the time of trial Ropes had promoted only a single black
lawyer from its associate ranks to partner in the 150-year history
of the firm.11 But the statistic nevertheless fails to imply
pretext here.
In a disparate treatment case "the central focus is 'less
whether a pattern of discrimination existed and more how a
particular individual was treated, and why.'" LeBlanc v. Great Am.
Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) (alteration omitted)
(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 156 (1st
Cir. 1990)). Therefore, "statistical evidence of a company's
11
Although the district court questioned the veracity of the
statistic, Ray, 961 F. Supp. 2d at 356 n.10, Ropes has not
challenged its accuracy.
-31-
general hiring patterns, although relevant, carries less probative
weight," and "in and of itself, rarely suffices to rebut an
employer's legitimate, nondiscriminatory rationale for its
decision." Id. A statistic is only helpful "if it tends to prove
the discriminatory intent of the decision makers involved," which
"often will be difficult." Hillstrom v. Best W. TLC Hotel, 354
F.3d 27, 32 (1st Cir. 2003). Ultimately, Ray cites only this bald
statistic without making any meaningful connection between the lack
of black partners and the Policy Committee's decisionmaking process
specific to his promotion. Thus, the bare statistic alone fails to
support an inference that Ropes discriminated against Ray.
We are mindful that probing an employer's rationale can
be difficult. We exercise "particular caution" when considering an
employer's motion for summary judgment raising issues of "pretext,
motive, and intent." Straughn v. Delta Air Lines, Inc., 250 F.3d
23, 34 (1st Cir. 2001) (citation and internal quotation marks
omitted). But, ultimately, "[e]ven in employment discrimination
cases where elusive concepts such as motive or intent are at issue,
summary judgment is appropriate if the non-moving party rests
merely upon conclusory allegations, improbable inferences, and
unsupported speculation." Benoit v. Tech. Mfg. Corp., 331 F.3d
166, 173 (1st Cir. 2003) (citation and internal quotation marks
omitted). Here, despite Ray's efforts to the contrary, he points
us to de minimis evidence, insufficient for a rational factfinder
-32-
to infer that Ropes's "actions were based not on [Ray's] perceived
failings, but on discriminatory animus." Mariani-Colón, 511 F.3d
at 223. Accordingly, the district court properly granted summary
judgment to Ropes on Ray's discrimination claim.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
-33-