Begovic v. Water Pik Tech. Inc. ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1697
RUSMIR BEGOVIC,
Plaintiff, Appellant,
v.
WATER PIK TECHNOLOGIES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Rusmir Begovic on brief pro se.
Lee Stephen MacPhee and Morrison Mahoney LLP on brief for
appellee.
April 17, 2006
Per Curiam. Plaintiff Rusmir Begovic has worked as a
machinist at defendant Water Pik Technologies, Inc. since 1993. A
native of Bosnia, he brings this action alleging that he was
subjected to discrimination and retaliation in violation of Title
VII. See 42 U.S.C. §§ 2000e-2, 2000e-3. In particular, he
contends that four work-related events-–the rejection of his two
applications for job promotions; the discontinuance of his tuition
reimbursement benefit; and his failure to obtain a higher hourly
wage-–amounted to disparate treatment based on his national origin.
He also claims that several of these events constituted acts of
retaliation for his earlier complaints about discrimination. From
an award of summary judgment for defendant, plaintiff now appeals.
We affirm substantially for the reasons set forth in the district
court’s opinion, adding only the following comments.
First. Based on the record before it at the time of its
decision, the district court’s ruling was clearly correct.
Defendant had submitted evidence providing reasonable explanations
as to why plaintiff received neither job promotion, why his tuition
reimbursement was discontinued, and how his pay rate had increased
over time. Even on the arguendo assumption that plaintiff had
established a prima facie case in each instance, such evidence put
the burden back on him to show that defendant’s cited reasons were
a pretext for discrimination or retaliation. See, e.g., Rathbun v.
Autozone, Inc., 361 F.3d 62, 71-72 (1st Cir. 2004) (discussing
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burden shifting in failure-to-promote context); Calero-Cerezo v.
U.S. Dep’t of Justice, 355 F.3d 6, 25-26 (1st Cir. 2004) (same in
retaliation context). Because plaintiff proffered virtually no
evidence in this regard, the award of summary judgment was
appropriate. “Even 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. Technical Mfg. Corp., 331 F.3d 166, 173
(1st Cir. 2003) (internal quotation marks omitted). Plaintiff’s
assertion that he submitted direct evidence of discrimination and
retaliation, and thereby rendered the burden-shifting framework
inapplicable, is belied by the record. Also insufficient to stave
off summary judgment is his contention that the credibility of
defendant’s affiants is a matter for the jury. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
Second. At several points in his appellate papers,
plaintiff complains that he was denied an adequate opportunity to
conduct discovery. This argument is never developed and can be
rejected for that reason alone. See, e.g., United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”). But it fails for other reasons
as well. To be sure, “trial courts should refrain from
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entertaining summary judgment motions until after the parties have
had a sufficient opportunity to conduct necessary discovery.”
Velez v. Awning Windows, Inc., 375 F.3d 35, 39 (1st Cir. 2004). Yet
this rule “is not self-executing”; a party needing additional
discovery must “make the court aware of its plight.” Id. This is
typically accomplished by the filing of a Rule 56(f) motion or its
functional equivalent. See id. at 40.
[S]uch a motion must (1) be presented in a timely manner,
(2) show good cause for the failure to discover the
necessary facts sooner; (3) set forth a plausible basis
for believing that the necessary facts probably exist and
can be learned in a reasonable time; and (4) establish
that the sought facts, if found, will “influence the
outcome of the pending motion for summary judgment.”
Adorno v. Crowley Towing & Transp. Co., ___ F.3d ___, ___, 2006 WL
852363, at *4 (1st Cir. 2006) (quoting Resolution Trust Corp. v.
North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)).
Plaintiff never invoked this safeguard below. He did
voice some general complaints that defendant was attempting to
avoid discovery, but “[t]hose cryptic allusions failed to set any
basis for believing that some discoverable material facts did
exist.” Paterson-Leitch Co. v. Mass. Munic. Wholesale Elec. Co.,
840 F.2d 985, 989 (1st Cir. 1988). He did also remark at one point
that further information was needed about a specific matter (the
requirements for the second job opening and the winning candidate’s
qualifications therefor). Yet plaintiff did not explain what
additional discovery was contemplated. More important, he never
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cited Rule 56(f), never filed a motion or its functional equivalent
satisfying the above-mentioned requirements, and never directly
requested that a summary judgment ruling be deferred pending
further discovery. Instead, he filed an opposition to defendant’s
summary judgment motion and, a few days later, filed his own motion
for partial summary judgment. This hardly sufficed to inform the
court of his alleged plight. Cf. Ayala-Gerena v. Bristol Myers-
Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996) (upholding denial of Rule
56(f) motion because, inter alia, “[a]ppellants filed their
original opposition to summary judgment without previously
informing the court of their inability to properly oppose summary
judgment due to incomplete discovery”); Hebert v. Wicklund, 744
F.2d 218, 222 n.4 (1st Cir. 1984) (noting that Rule 56(f)
continuances are frequently granted “where the moving party has
sole possession of the relevant facts,” but that “this maxim
represents a factor that the court should consider only after the
non-moving party has complied with the requirements of the rule”).
Third. Even assuming arguendo that plaintiff adequately
invoked Rule 56(f) and that the court erred in not allowing further
discovery, the result would not change. As mentioned, the only new
facts cited by plaintiff in this regard concerned the requirements
for the second job opening and the qualifications of the successful
candidate. Yet plaintiff did eventually obtain documents
describing these matters, which he attached to a motion to amend
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the judgment. Even if these materials were considered, his legal
claims would fare no better. For example, their respective job
applications provide no evidence that plaintiff was more qualified
than the winning candidate. Indeed, the new documents, together
with another attached to the motion to amend, actually undermine
plaintiff’s case in one respect. Defendant has averred that he was
rejected for the second job opening mainly because of an inability
to communicate well with others, noting that he had been
disciplined earlier for “inappropriate behavior” toward a co-
employee. The job listing confirms that an “[a]bility to
communicate clearly” and “provide direction” was a requirement.
And plaintiff’s 2002 performance review, prepared two months prior
to his rejection here, gives him a low mark for
“teamwork/communication,” stating that he “needs to work on his
communications with others” and on “working more cooperatively”
with co-employees. Plaintiff has thus provided no reason to think
that further discovery would have bolstered his attempt to
establish that defendant’s cited reasons were a pretext for
discrimination or retaliation.
Fourth. We have no occasion here to address whether pro
se litigants are entitled to notice regarding their evidentiary
burden at the summary judgment stage. See generally Ruiz Rivera v.
Riley, 209 F.3d 24, 26-27 & n.2 (1st Cir. 2000); Posadas de Puerto
Rico, Inc., v. Radin, 856 F.2d 399, 401 (1st Cir. 1988). Plaintiff
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has voiced no complaint in this regard on appeal. And his
submissions below, which contained a citation to the very page in
a Supreme Court opinion where the Rule 56(e) methodology is
discussed, see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986),
suggest that he was not unfamiliar therewith.
Fifth. To the extent plaintiff is alleging that
defendant retaliated against him by giving him a less favorable
2003 performance review than he deserved, we note that his 2002
review was no better. Regarding the alleged denial of a merit pay
increase in 2004, plaintiff has provided no evidence that he was
paid less than similarly situated employees outside the protected
class, as the district court observed. And plaintiff has not
denied that he received a substantial pay hike in May 2004.
Affirmed.
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